Director of Public Prosecutions v Kelly & McGrath

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 31 March 2022
• Neutral Citation: [2022] IECA 333
• Court: Court of Appeal (Ireland)
• Docket Number: Record Nos: CA 106/2017 (Kelly)

Between/

The People (At the Suit of the Director of Public Prosecutions)

Respondent

and

Sharif Kelly and Edward McGrath

Appellants

[2022] IECA 333

Birmingham P.

Edwards J.

McCarthy J.

Record Nos: CA 106/2017 (Kelly)

and CA 97/17 (McGrath)

THE COURT OF APPEAL

Multiple appeals of conviction - refusal to rule evidence inadmissible - judges failure to recuse themselves

Facts: Mr Kelly appealled his conviction on the following grounds; (i) the trial was insatisfactory and the verdict was unsafe; (ii) the judges erred in failing to provide for adequate disclosure of material that would have been of significant assistance to the defence; (iii) the judges erred in rulling the evidence arising from the stopping, detention and arrest of the appellant was admissible, (iv) the judges erred in their refusal to recuse themselves and the appellant's right to a fair trial was not upheld; (v) there were a number of interuptions of cross-examination and submissions by the defence which made the trial and the verdict unsafe; (vi) having regard to the interventions by the presiding judge during the said recusal application, the appellants rights to a fair trial was not upheld; (vii) the judges erred in refusing to rule inadmissible the evidence of Mr. Cullen; (viii) the judges erred in refusing to rule the DNA and fingerprint evidence inadmissible; (ix) the verdict was unsafe as the judge predetermined issues of DNA and fingerprints before hearing submissions; (x) the judges erred in refusing to find the evidence of Mr Cully was credible; (xi) the judges erred in finding that certain evidence amounted to corroboration of Mr Cullens evidence; (xii) the judges erred in refusing to find or address that the crucial evidence of Mr Cullen as to the alleged role of the prosecution was contradiction by his own or the prosecutions evidence; (xiii) the judges failed to address evidence in accordance with law as to the onus and burden of proof, inparticular (a) fingerprint and DNA on the bag of clothes alleged to be in the appellants vehicle; (b) whether the vehicle had broken down; (c) whether the appellant told lies; (xiv) the judge erred with regard to the law as to joint enterprise and the application of same in the context of the appellants case; (xv) the trial was not conducted in accordance with law and in a manner in which justice was seen to be done

Mr McGrath grounds of appeal included; (i) the judges erred in finding the prosecution had proved beyond a reasonable doubt that the appellant had the requisite mens rea; (ii) the judges erred in rulling the evidence from the stopping, detention and arrest of the appellant was admissible; (iii) the judges erred in failing to provide for adequate disclosure of material which made the trial unsafe; (iv) the judges erred in refusing to rule the evidence from forsensic submissible inadmissible; (v) the judges failed in refusing to rule Mr Cullens evidence inadmissible; (vi) the judges erred in finding Mr Cullen's evidence was not worthy of credit or addressing the matters to his credibility; (vii) the judges erred in appearing to find that certain evidence amounted to corroboration of Mr Cullen's evidence; (viii) the judges erred with regard to the laws to joint enterprise and the application of the same in context to the appellant's case; (ix) the judges erred in accepting th e contention that the night before the killing the appellant drove the Toyota Corolla to Mr Cullen's apartment; (x) the judges erred in refusing to recuse himself when asked to on the grounds that the presiding judge had interrupted cross-examination; (xi) having regard to these intervention the trial was unsafe, unsatisfactory and justice was not done

The Court dealt with the issues in the following categories; (i) the disclosure and the admissibilty of David Cullens evidence; (ii) the failure to rule the evidence of David Cullen inadmissible; (iii) the decision on the admissibility issue; (iv) the courts refusal to recuse; (v) the credibility of David Cullen, Corroboration; Contradictory evidence; (v) the onus and burden of proof and the Trial Court's Treatment of evidence; (vi) joint enterprise; (vii) admissibility of the DNA evidence. The Court concluded that any suggestion that the trial was unsatisfactory and the verdict was unsafe should be rejected. The court further rejected any suggestions that the trial was neither in accordance with law nor in a manner in which justice was seen to be done

Appeals dismissed

JUDGMENT of the Court delivered byMr. Justice Edwardson the 31 ^st day of March 2022.

1 . On the 9 ^th of March 2017, Messrs. Sharif Kelly and Edward McGrath (i.e. “the appellants”) were convicted in the Special Criminal Court of the offence of murder. Mr. McGrath was also convicted of firearms and ammunition offences. The appellants were convicted following a trial which had lasted 35 days, and which related to offences that occurred on the 6 ^th of March 2013 at the carpark of the Huntsman Inn, Gormanstown, County Meath, when a Mr. Peter Butterly (i.e. “the deceased”) was fatally shot. This was the second occasion on which Messrs. Kelly and McGrath had stood trial in the Special Criminal Court charged with the murder of Mr. Butterly. An earlier trial in the Special Criminal Court in 2015 had been aborted when the Special Criminal Court discharged itself on the 55 ^th day of the trial when an issue arose in relation to disclosure. The question of disclosure was to the fore in both the 2015 and 2017 trials, and indeed, has been a major issue on this appeal.

2 . Initially, four people were charged with murder: the two appellants, and Messrs. Dean Evans and David Cullen. The prosecution case was that each of the four accused had participated in one way or another in the murder. It was said that each accused was in the general vicinity of the murder, and that each accused had an assigned role to play: as shooter; as driver of the vehicle which brought the gunman to the scene; as provider of transport for the gunman and his driver in the aftermath of the murder, and as disposer of the murder weapon. However, in advance of the first trial there was an unusual development, in that the prosecution did not proceed with the murder charge against Mr. Cullen, who, it transpired, instead entered a plea of guilty to a firearms offence for which he received a sentence of 7 years' imprisonment, 3 and a half years of which was suspended. He then gave evidence as a prosecution witness at both trials against his former co-accused. The combined duration of both the aborted trial and the trial which resulted in a conviction, which might seem remarkable at first sight, is attributable to this very unusual development.

3 . Following the discharge of the first trial court, Mr. Evans was on bail, but he absconded, failing to appear at the start of this trial which then proceeded in his absence. This meant that the trial proceeded with two people on trial, rather than four, as was originally envisaged. We have been told that Mr. Evans was returned to this jurisdiction subsequent to the trial whereupon he entered a plea of guilty to murder.

4 . We have referred to the very unusual feature of the case, namely that one of the four accused originally charged with the murder became a prosecution witness. There was a second unusual aspect, in that the murder occurred at a time when there was a Garda surveillance operation in place. The result of this was that the prosecution were able to offer unusually detailed evidence about the movement of individuals of interest, and vehicles associated with them, in the days leading up to the murder. It also resulted in gardaí being in close proximity to the murder scene, and so it was that Mr. Evans, the gunman, and Mr. McGrath, who drove him to and from the scene, were detained and arrested at a moment very close in time to the murder and at a location very proximate. Mr. Kelly was arrested and detained in close proximity to Messrs. Evans and McGrath. The prosecution case against Mr. Kelly was that his role was to pick up Messrs. Evans and McGrath and, after the vehicle in which they had been travelling had been burned out, to transport them away from the scene. The circumstances of the detention and arrest of Messrs. McGrath and Kelly are issues in the course of this appeal. To get a full picture, it should be noted that Mr. Cullen was arrested at around the same time, and at or near the entrance to Gormanstown College. The case that the prosecution had originally intended to mount against him was that his role was to take possession of and to dispose of the murder weapon, and indeed, it is the case that he was observed attempting to dispose of what turned out to be the murder weapon by throwing it into a bush. Before setting out the grounds of appeal that have been advanced, and dealing with the individual grounds, it would be helpful to provide an overview of the evidence at trial and to refer in some detail to the ruling of the trial court when convicting the appellants.

5 . The written submissions on behalf of both of the appellants and on behalf of the respondent each set out a detailed account of the evidence at trial. The summary offered here draws heavily on those submissions.

6 . On the evening of the 31 ^st of December 2012, a Silver Toyota Corolla (registration 06-D-90332 and chassis no. JTDBR22E22200278501) was stolen from a dwelling in Castleknock, Dublin. This vehicle was subsequently fitted with false registration plates 6-KE-7235 and was used in the murder of Mr. Butterly. At trial, it was often referred to as “ the murder car” or “ the murder vehicle”.

7 . Evidence was given that gardaí had been carrying out surveillance in the days prior to the murder. It is to be noted that at trial, members of the National Surveillance Unit were permitted to give evidence without disclosing their full names. It is...