Director of Public Prosecutions v Murphy

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Ní Raifeartaigh
• Judgment Date: 19 December 2023
• Neutral Citation: [2023] IECA 330
• Docket Number: Appeal Record Number: 2022/022

Between/

The People at the Suit of the Director of Public Prosecutions

Respondent

and

Darren Murphy

Appellant

[2023] IECA 330

Birmingham P.

McCarthy J.

Ní Raifeartaigh J.

Appeal Record Number: 2022/022

Bill SCDP0009/2019

THE COURT OF APPEAL

Conviction – Murder – Identification – Appellant seeking to appeal against conviction – Whether recognition evidence should not have been admitted as evidence

Facts: The appellant, Mr Murphy, appealed to the Court of Appeal in respect of his conviction for murder following a trial in the Special Criminal Court in June and July 2021. Judgment was delivered by the court on the 15th of November 2021. The appellant’s co-accused was found not guilty of murder and not guilty of possession of firearms. The appellant was found guilty of murder and not guilty of possession of firearms. The appellant submitted that the recognition evidence of the seven Gardaí who identified the appellant from “the Temple Street footage” should not have been admitted as evidence. He submitted in the alternative that if it was correct to admit the evidence, the trial court afforded too much weight to the evidence; it was weak and should have had minimal impact on the ultimate finding of the court. The appellant submitted that the trial court erred in concluding that the appellant was guilty on the basis of joint enterprise or common design when the evidence led by the prosecution was insufficient to establish this. The appellant submitted that an analysis of the various CCTV clips and stills revealed that, in addition to the usual discrepancies in times recorded on CCTV and real time, the sequence of the clips and stills, although presented as being in order of time, was not always in such order; however, the trial court in its judgment relied on the accuracy of the times in the clips presented in the trial as being the times of travel of various vehicles.

Held by the Court that the procedures employed in the case were sufficiently robust to pass the threshold for admissibility. The Court did not accept the appellant’s submissions that little or no weight should have been given to the identification/recognition evidence by reason of the procedural aspects of the process. The Court did not accept the appellant’s submissions to the effect that the court did not engage with the alleged weakness of the recognition/identification evidence. The Court was of the view that the trial court was not incorrect in admitting the evidence, and further, that it was entitled to place the weight upon it that it ultimately did, despite the credibility issues that had been raised by the appellant; those issues were carefully addressed by the trial court and taken into account before reaching its conclusions. Having regard to the totality of the evidence as described in the trial court’s judgment, the Court saw no reason to disturb the trial court’s conclusion that the evidence pointed beyond a reasonable doubt to the appellant’s role in the enterprise. The Court did not accept that there was any inconsistency between the verdict of guilty on the murder count and the verdict of not guilty on the possession of firearms count. The Court did not accept that there was any inconsistency between the verdicts in respect of the appellant’s co-accused and the appellant. Having regard to the particular stills identified, and the evidence concerning those stills, as well as the trial court’s judgment concerning the overall movements of persons and vehicles, the Court was not satisfied that the trial court was in any way misled by the discrepancies adverted to by the appellant.

The Court dismissed the appeal.

Appeal dismissed.

JUDGMENT of the Court delivered on the 19 ^th day of December 2023 by Ms. Justice Ní Raifeartaigh

Introduction

1 This is an appeal in respect of the appellant's conviction for murder following a trial in the Special Criminal Court in June and July 2021. Judgment was delivered by the court on the 15 ^th of November 2021. The appellant's co-accused DK was found not guilty of murder and not guilty of possession of firearms. The appellant was found guilty of murder and not guilty of possession of firearms.

2 Most of the issues raised by the appellant relate to evidence of identification/recognition of him by members of An Garda Síochána from CCTV footage. The appellant also challenges the trial court's conclusions concerning common design, and its reliance upon CCTV footage despite a number of discrepancies within it in terms of timing.

3 There was originally a ground of appeal relating to the search of a vehicle but counsel on behalf of the appellant indicated at the appeal hearing that this was not being pursued because nothing obtained from that search was deployed by the prosecution to establish the guilt of the appellant. The identification issue was the one most strongly pressed at the hearing of the appeal.

Background

4 Mr. Eamon Kelly was shot and killed at 16.00 hours on the afternoon of the 4th of December 2012 at Furry Park Road, Killester, in the city of Dublin. A male emerged from a Lexus motor car, ran after him and shot him a number of times with a handgun, fatally wounding him. He was shot four times and a Glock handgun was used. The gunman made his escape in the Lexus driven by a second male. The Lexus was set on fire in Stiles Court, Clontarf, approximately 1.1 km from the murder scene, at 16.04 hours. The two occupants fled on foot down an alley which leads to a vehicular entrance to Clontarf rugby and cricket clubs and then onto Castle Avenue, Clontarf. The two occupants of the car were the shooter and his getaway driver. Sean Connolly was arrested very shortly afterwards, on nearby Castle Avenue. He was not in possession of the firearm but was wearing two tracksuits and latex gloves. His clothing was found to hold particles characteristic of gunshot residue, and this had peculiarities which matched the spent shells ejected from the gun used to kill Eamon Kelly. He subsequently pleaded guilty to the murder. The gun was subsequently recovered by police from a location in Northern Ireland.

5 At the trial of the appellant and his co-accused DK, the prosecution case was based on a number of strands including a number of pieces of CCTV evidence concerning the movements of certain vehicles and persons. It included evidence that in the days preceding the murder, a car associated with the appellant (an Opel Meriva) had been repeatedly visiting the area where the murder ultimately took place; that this car was in the area shortly before and at the time of the murder; and that at particular times this car was travelling in convoy with two other vehicles one of which was the Lexus from which the gunman emerged. The linkage between the appellant and this car and the other men depended on CCTV footage. For present purposes, the following pieces of CCTV footage should be highlighted.

6 The Howth Road footage- There was CCTV footage which showed, inter alia, that at approximately 14:46 three vehicles were driving in convoy on the Howth Road northbound towards Killester Village (i) a green or turquoise Opel Meriva, (ii) a black Lexus (which was the car from which the gunman Sean Connolly was later to emerge), and (iii) a black Toyota Landcruiser. The Opel Meriva had distinctive features, one of which was the absence of hubcaps. The driver had white stripes on dark sleeves.

7 The Opel Meriva took up position parked on The Demesne close to the junction with the Howth Road at approximately 15:28, with a clear view onto the Howth Road. A man (who the prosecution contended was the appellant) exited the vehicle at 15:49:12 and turned right onto the Howth Road, and then returned to his vehicle at 15:50:35. Eamon Kelly walked past the Bank of Ireland on the Howth Road, very close to the junction, at 15:55:14 and the Opel Meriva departed and drove northbound on the Howth Road towards Raheny at 15.55.39. As already noted, the shooting took place at 16.00 hours. Immediately after the shooting, the Opel Meriva was travelling southbound on Howth Road at Killester Village at 16:01:32, followed by the black Lexus only 8 seconds later, in the direction of Stiles Court where the Lexus vehicle was shortly thereafter burnt out.

8 Inner city footage- There was footage of three men in the inner city which the prosecution contended were the appellant, Sean Connolly and DK. This footage was however of relatively poor quality. The prosecution therefore relied on a different piece of footage, which will here be called “the Temple Street footage”, in which (the prosecution contended) the appellant was clearly shown, to connect him to the man interacting with Sean Connolly and DK in the inner city. The timing, location and appearance of the man was said to connect the two pieces of footage.

9 The Temple Street footage- There was CCTV footage which showed a man in an Adidas top walking a distinctive dog at Temple Street Hospital, Spar Temple Street and various locations in Eccles Street and walking from and into St. George's Place between 12.13 and 12.50 hours on the date of the murder. The distinctive dog was a Kerry Blue and was on a lead with an orange or red spool handle. The man appeared to be the same man (from his clothing, general physical appearance) who got out of the Opel Meriva in Killester, and the prosecution relied upon the Temple Street footage to say that the man at the Opel Meriva in Killester was the appellant. By reason of the importance of this footage in connecting the appellant with Sean Connolly, the identification of the appellant as the man walking the dog at Temple Street assumed particular importance at the trial. Seven Gardaí, none of whom were involved in the murder investigation, said they recognised the appellant from that footage in 2018. Another twenty-five Gardaí who were shown the footage did not identify the appellant;...