Director of Public Prosecutions -v- Dumbrell & anor, [2014] IECCA 22 (2014)

Docket Number:58/11 & 57/11
Party Name:Director of Public Prosecutions, Dumbrell & anor
Judge:Denham C.J.
 
FREE EXCERPT

THE COURT OF CRIMINAL APPEAL

Appeal No. 57/2011 and

Appeal No. 58/2011

Denham C.J.

Edwards J.

O’Malley J.

Between/

The People at the suit of the Director of Public ProsecutionsRespondentand

Warren Dumbrell

and

Jeffrey DumbrellApplicants/Appellants

Judgment of the Court delivered on the 4th day of July, 2014, by Denham C.J.

  1. Before the Court are appeals by Warren Dumbrell, referred to as “the first named appellant”, and Jeffrey Dumbrell, referred to as “the second named appellant”, both together are referred to as “the appellants”, from the convictions and sentences imposed on the 22nd February, 2011, by the Central Criminal Court (Butler J.), for the offence of murder, for which they were sentenced to life imprisonment, to run from the 1st November, 2006.

  2. This is an appeal against the convictions imposed following a retrial, the original convictions having being quashed by this Court on the 5th July, 2010, Murray C.J. presiding, with reasons stated on the 28th July, 2010.

  3. This Court has received individual submissions filed by each of the appellants and in reply a joint submission filed by the Director of Public Prosecutions, referred to as “the DPP”.

  4. The first named appellant was charged with murder contrary to common law as provided for by s. 4 of the Criminal Justice Act, 1964. The particulars of offence stated that the first named appellant on the 29th October, 2006, at Tyrone Place, Inchicore, Dublin 8, did murder Christopher Cawley. The second named appellant was charged in identical terms.

  5. The appellants appeared before the Central Criminal Court (Butler J.) on the 7th February, 2011, for trial. The trial lasted for twelve days, and concluded on the 22nd February, 2011, on which date the appellants were convicted by a jury of the murder of Christopher Cawley by a majority verdict of 10 – 2.

  6. During the course of the trial, it was established that there was an unpleasant history between the deceased Christopher Cawley and Tommy Dumbrell, brother of the appellants. Prior to the death of Christopher Cawley there were a number of incidents involving Tommy Dumbrell and the deceased.

  7. On the 29th October, 2006, Christopher Cawley was going home on the bus with his son, and also on the bus was Tommy Dumbrell. Words were exchanged, and it was arranged that they would meet that evening at 8 p.m. at the square or green, opposite the flats, at Tyrone Place, in order to have a fair fight between the two. There was some discussion that Christopher Cawley could bring whoever he wanted and that Tommy Dumbrell likewise could bring whoever he wanted.

  8. At 8 p.m. on the 29th October, 2006, Christopher Cawley was present at the rocks on the green area in the company of young children when Warren Dumbrell and Jeffrey Dumbrell approached the rocks by cutting across the field. Warren Dumbrell had a broken hurley in his hand as he approached Christopher Cawley. Warren Dumbrell and Jeffrey Dumbrell went to the arranged meeting between Christopher Cawley and their brother, Tommy Dumbrell, to support their brother. They arrived before their brother.

  9. There is conflicting evidence as to what followed. On the one hand, Jeffrey Dumbrell gave evidence that as they approached the rocks where the fight was to take place Christopher Cawley saw them, and when he saw who they were, he pulled out a knife. He waved the knife at them and then he ran into the flats complex at Tyrone Place where he lived. He was pursued by Warren Dumbrell who had a broken hurley, followed by Jeffrey Dumbrell. Christopher Cawley turned to face them at the stairwell with the knife in his hand. There was an altercation with Warren Dumbrell, who knocked the knife out of Christopher Cawley’s hand with the hurley. The knife fell to the ground. Christopher Cawley and Jeffrey Dumbrell tried to get the knife. There was a struggle for the knife between Jeffrey Dumbrell and Christopher Cawley. Jeffrey Dumbrell said he got the knife from Christopher Cawley, and then he stabbed him, in the leg a few times, that he did so to get the deceased off him. He admitted this was the cause of death. In fact Christopher Cawley received six stab wounds, three in the back, and subsequently died from the wounds. Under cross-examination Jeffrey Dumbrell said that if people said his brother produced a knife they would be mistaken. He said that “when he [Christopher Cawley] seen that Warren took out a hurl and went for him, he turned around and ran”. He said that “if Warren hadn’t taken the hurley out, he’d have probably stabbed one of us”. He said he ran after the deceased because he wanted to “go in and threaten him”. He said he wanted to tell him to keep away from his brother Tommy. He said that regardless of the fact that the deceased had produced a knife, they were going to pursue and catch him, and they were going to smack the knife out of his hand with a hurley. He said he threw the knife away after he left the flat complex. He said that the hurley got thrown away as well. He said that they burnt their clothes that night in a field because they thought there would be evidence on the clothes.

  10. On the other hand, there was different evidence from witnesses. Lauren Molloy stated that as the appellants pursued Christopher Cawley they were taking stuff out of their jacket, one of them at least. She denied that she saw Christopher Cawley with anything in his hand. She did not see the deceased with a knife or waving his hands.

  11. Janette Cawley McKenna gave evidence, including that she heard screaming and went to the balcony of her flat. She saw her husband, Christopher Cawley, running towards the entrance gates of Tyrone Place and the appellants running after him. She said that Warren Dumbrell was wearing a dark green jacket and he had a knife in his hands. Jeffrey Dumbrell was wearing a red jacket and had an object in each hand. She saw her husband fall at the stairwell. He tried to get up, and “the two of them were on him”. She did not see the deceased carrying anything. The appellants were on top of the deceased and hitting him all over. She denied that the deceased took a knife to the waste ground. She was cross-examined on the basis that she gave different versions of events at the earlier trial, when asked did Warren Dumbrell have a knife when he came into the flat complex. She agreed that one thing she was sure about was that Jeffrey Dumbrell had the hurl and Warren Dumbrell had the knife.

  12. There was evidence from Mairead Cawley, daughter of the deceased, that she got chips and cigarettes for her father and came back to the waste ground where her father was. She saw the appellants come across the field. Jeffrey Dumbrell had a red jacket and Warren Dumbrell had a green jacket. She saw her father running and the appellants ran after him. She ran after them into the flats complex. She saw the appellants on top of her father, hitting him, and then they left. She said she saw the second appellant put a knife into his jacket just before they left. She said the first named appellant had a stick like a hurley.

  13. Linda Ward gave evidence that she saw the appellants at the stairwell “jamming down on” the deceased. She said Warren Dumbrell had a sword. She said the appellants kept swapping, saying that first of all Warren would “go down like that” and he would stand on him and then Jeffrey would “go down like that”. She said both appellants had something in their hands. Under cross-examination she maintained that she saw Warren Dumbrell with a “sharp thing”. However, it was put to her that at a previous trial she had said that Jeffrey Dumbrell had a knife and that Warren had a stick and that her testimony at this trial must be incorrect, and she agreed with that proposition.

    Notice of application for leave to appeal

  14. The notice of application for leave to appeal filed by the first named appellant set out the following grounds:

    (i) That the learned trial judge erred in law or in a mixed question of law and fact in permitting the previous convictions of the [first named appellant’s] co-accused to be allowed into evidence without allowing the [first named appellant] the opportunity to adduce evidence of the deceased's previous convictions.

    (ii) That the learned trial judge erred in law or in a mixed question of law and fact in failing to recharge the jury adequately on the issue of joint enterprise having being requisitioned on the issue on behalf of the [first named appellant].

    (iii) That the learned trial judge erred in law or in a mixed question, of law and fact in failing to recharge the jury adequately on the issue of joint enterprise having been asked by the jury to explain the principle of joint enterprise/common design.

    (iv) That the learned trial judge erred in law or in a mixed question of law and fact in failing to recharge the jury on the general creditworthiness of certain prosecution witnesses in light of previous inconsistent statements made by such.

    (v) That the learned trial judge erred in law or in a mixed question of law and fact in failing to properly direct the jury not to conduct their own enquiries in relation to the internet or other media sources.

    (vi) That the learned trial judge erred in law or in a mixed question of law and fact in rendering the trial unsatisfactory by virtue of the fact that he failed to accede to the requisitions raised on behalf of the [first named appellant].

    Additional Grounds of Appeal

  15. At the hearing of the appeal, counsel for the first named appellant brought two motions before the Court, both of which were granted.

  16. The Court granted permission to insert two additional grounds of appeal on behalf of the first named appellant.

  17. Liberty was given to insert the following:-

    “ a. That the failure of the Court to stay the proceedings against the [first named appellant] pending the introduction into law of adequate protection in respect of the widespread availability of prejudicial material on the internet...

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