D.P.P.-v- Desmond Dundon & Others, [2007] IECCA 64 (2007)

Docket Number:17/04, 28/04, 25/04, 26/04 & 27/04
Judge:Kearns J.
 
FREE EXCERPT

Kearns J.

Dunne J.

McGovern J.

THE COURT OF CRIMINAL APPEAL [28/04]

[25/04]

[27/04]

[26/04]

[17/04] BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONSRESPONDENT / PROSECUTOR

AND

ANTHONY MCCARTHY, CHRISTOPHER COSTELLO, DAVID STANNERS, JAMES MCCARTHY & DESMOND DUNDONAPPLICANTS/ APPELLANTS

JUDGMENT of the Court delivered by Mr. Justice Kearns on the 25th day of July, 2007

BACKGROUND FACTS

At around 9 p.m. on the night of 29th January, 2003, Kieran Keane, a notorious Limerick gangland figure, was shot dead with a single bullet to the head on an unlit country road at Drombanna outside Limerick. His nephew, Owen Treacy, who with Kieran Keane had been abducted earlier that evening, suffered multiple stab wounds at the same location and was left for dead on the side of the road by three assailants whom he subsequently identified as David Stanners, James McCarthy and Christopher Costello, being three of the applicants herein. At the end of the trial which commenced on 4th, November, 2003 at the Central Criminal Court sitting at Cloverhill Courthouse in the County of Dublin and concluded on 20th December, 2003, all five applicants were found guilty of the murder of Kieran Keane, the attempted murder of Owen Treacy and the false imprisonment of both Kieran Keane and Owen Treacy. None of the applicants gave evidence and there was no issue which the jury had to resolve about bad character in relation to either Owen Treacy, who was the main prosecution witness, or any of the applicants. The learned trial judge refused leave to appeal and the matter comes before this Court by way of application for leave to appeal.

The events giving rise to the prosecution covered a four hour period on the evening of 29th January, 2003 commencing shortly before 7 p.m. On that evening Owen Treacy went with his uncle, Kieran Keane, to the home of the mother of Anthony McCarthy, one of the applicants herein, at an address known as 5, Fairgreen. Kieran Keane was driving a Passat motorcar, a vehicle which Owen Treacy described in evidence as "hot", indicating that the police might stop this vehicle on sight. Indeed, within minutes of leaving the home address of Owen Treacy, it appears that two passing gardaí did spot the vehicle, attempted to follow it, but lost it fairly quickly. On arrival at Fairgreen, the Passat was carefully parked where it would not be seen by any passing garda vehicle, and the two men then walked the short distance to 5, Fairgreen. Just outside this property, they met a Mr. Galvin who was reversing a silver Micra car onto the driveway of Fairgreen. On entering the house, Kieran Keane and Owen Treacy were confronted by Anthony McCarthy (otherwise known as "Noddy" McCarthy) who was carrying a handgun. In his company was the second applicant, Desmond Dundon. Dundon produced a mobile phone and asked Kieran Keane to call two other men, the Collopys, who also lived locally and were known to be associates of Kieran Keane in the context of ongoing gangland feuding in Limerick City. Kieran Keane refused to comply with that request which was repeated on a number of occasions. The two men were detained at 5, Fairgreen for about an hour, during the course of which Desmond Dundon secured their hands behind their backs with tape and hoods were placed over their heads. In relation to Owen Treacy, he maintained the hood which was placed over his head was made of a fabric which had lots of holes, so he could see through it. Whilst being so detained, two men wearing balaclavas appeared from the kitchen. Owen Treacy recognised one of these men as the applicant, David Stanners (otherwise David "Frog Eyes" Stanners).

After about one hour during which Kieran Keane continued his refusals to call the Collopys, both men were placed into the boot space of the Micra car which was on the driveway. The applicant Anthony McCarthy drove the motorcar with Mr. Galvin in the front passenger seat. Both Mr. Keane and Mr. Treacy were hooded and bound and concealed in the boot of the car during the course of a short journey to an address at 79, Roundwood, which was the address of Mr. Galvin's mother. The car was parked inside the garage adjoining the property. Desmond Dundon, who had obviously arrived at the property separately, was there to greet the car as it arrived. Messrs McCarthy, Galvin and Dundon took Messrs Keane and Treacy upstairs in the premises. Anthony McCarthy still had the handgun at this stage. Repeated requests were made to call the Collopys, all of which were refused. At some stage during this interrogation, the hoods were removed. Also, at some unspecified stage, some six stabbing or torture type wounds were inflicted to the left side of Kieran Keane's head.

At some time before 9 pm a Hiace van arrived and parked on the driveway. Both Kieran Keane and Owen Treacy were placed in the back of this van and driven away. The other occupants of the van were David Stanners, James McCarthy and Christopher Costello. David Stanners was the driver. At this stage Mr. Costello had taken possession of the handgun believed to be the same handgun which Anthony McCarthy had held earlier. At a certain stage during this journey, a blanket was placed over both men in the back of the van. The drive took about 25 minutes before stopping in a quiet country lane in an area known as Drombanna.

Mr. Keane was then taken from the rear of the van, forced to the ground and shot once in the head by David Stanners. In the immediate aftermath of the execution, Owen Treacy was stabbed by both David Stanners and Christopher Costello. He was stabbed some seventeen times and left for dead at the scene. However, Mr. Treacy, although bleeding from his various wounds, made himself known to the occupants of a local house nearby and at about 9.30 p.m. the gardaí were called.

On arrival of the emergency services, Mr. Keane was pronounced dead at the scene and Mr. Treacy was taken to a local hospital. Later that same evening, the gardaí stopped a Volvo motorcar leaving Limerick en route to Dublin. The car contained three men, Anthony McCarthy, Desmond Dundon and the aforesaid Mr. Galvin. All gave false names to the gardaí and later enquiries revealed that all three men had travelled to England. On 28th March, 2003 in Kilkenny, Anthony McCarthy and Desmond Dundon were arrested. False names were given to the gardaí, supported in the case of Anthony McCarthy by a medical card in the false name that he used. A garda officer noted that Mr. McCarthy had apparently dyed his hair.

When interviewed, Anthony McCarthy accepted that he knew both Kieran Keane and Owen Treacy. He accepted and confirmed that both had indeed visited him at 5, Fairgreen on the evening of 29th January. He claimed in interview that the principle reason for the meeting was at the request of Mr. Keane who wished to encourage Mr. McCarthy to buy back some horses that had gone missing and were causing some concern. Mr. McCarthy in interview by the gardaí denied any suggestion of false imprisonment, possession of a firearm and disputed the entirety of Mr. Treacy's account as revealed to him by investigating officers during his numerous interviews.

Mr. McCarthy volunteered that, at the conclusion of the meeting with Mr. Keane and Mr. Treacy, Mr. Treacy asked to borrow the Micra car from Mr. Galvin as the Passat was wanted by the gardaí. Mr. McCarthy suggested that Mr. Galvin consented to the loan of his car. Mr. McCarthy explicitly denied that he drove the car to 79 Roundwood, and during the course of the interviews suggested that on the evening in question, that he, Desmond Dundon and Mr. Galvin had walked to a local petrol station where they had met a man he knew as Barry Fitzgerald, who was driving a large white van and who had given them a lift from that location. Mr. Anthony McCarthy urged the police to obtain the CCTV recording from the garage forecourt which, he claimed, would establish that Owen Treacy was lying as regards the drive to Roundwood, if not also as regards his entire account.

The gardaí obtained possession of the CCTV recording which did indeed indicate a white van on the forecourt of the garage at the time suggested. The same was the property of a Mr Barry Fitzgerald, who had returned to England and who at the time had been visiting his family in Limerick. Mr. Fitzgerald was called as a witness for the defence at the trial and gave evidence that he was approached on the forecourt on the evening in question by Anthony McCarthy, whom he had known for years, and two other men, Desmond Dundon and Mr. Galvin and gave all three a lift to some other location in the city.

It emerged at trial that the quality of the CCTV video was extremely poor and did not permit the identification of any person in relation to the van on the occasion where it was noted to be in the garage forecourt.

In separate interviews, David Stanners asserted that on the night in question he was in Cratloe at 9.30 p.m. on the evening in question. He admitted only to owning a balaclava.

Both James McCarthy and Christopher Costello asserted they were both watching a football match between Liverpool and Arsenal in a house at 66, College Park during the events complained of. They also informed the gardaí that they joined in a celebratory party that night in the house in question.

While the prosecution based its case almost entirely on the evidence of Owen Treacy there was other evidence available to the jury in support. A Nike cap which Owen Treacy had owned and was wearing on the night of the murder was found by the gardaí on a table in the dining room in Fairgreen. A pillowcase found at Roundwood was found to have ducting tape on it which was from the same roll of tape as that used to bind the hands of Kieran Keane. Blue and red fibres from Kieran Keane's jumper were found on cushion covers at Fairgreen. A single grey polyester fibre from the jeans worn by Kieran Keane matched those on the rear of the...

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