Director of Public Prosecutions v O'Loughlin

• Jurisdiction: Ireland
• Judge: Mr. Justice Mahon
• Judgment Date: 09 February 2018
• Neutral Citation: [2018] IECA 25
• Court: Court of Appeal (Ireland)
• Docket Number: Record No. 83/2015
• Date: 09 February 2018

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND -

DAVID O'LOUGHLIN

APPELLANT

[2018] IECA 25

Mahon J.

Birmingham J.

Mahon J.

Hedigan J.

Record No. 83/2015

THE COURT OF APPEAL

Conviction – Murder – Error in law – Appellant seeking to appeal against conviction – Whether trial judge erred in law by permitting the jury to visit the rubbish chute whilst they were engaging in their deliberations

Facts: The appellant, Mr O'Loughlin, appealed to the Court of Appeal against his conviction for the murder of Mr Manley on the 12th May 2013 at Garden City Apartments, in Cork. The appellant had pleaded not guilty. His trial commenced on the 11th March 2015 and concluded, with the unanimous guilty verdict, on the 31st March 2015. He was sentenced to life imprisonment on the same date. The appellant argued that the trial judge erred in law: (i) when allowing into evidence statements made by the appellant to Detective Garda Harrington and Detective Garda Maher at the appellant's apartment on the evening of the 13th May 2013 (the un-cautioned interview); (ii) in refusing the appellant's application at the close of the prosecution case to direct the jury to find the appellant not guilty; (iii) in incorrectly charging the jury with regard to oblique intention and/or with regard to s. 4(2) of the Criminal Justice Act 1964 in that he failed to charge the jury at all regarding the level of certainty required in relation to a person being presumed to intend the natural and probable consequences of his actions, the law being that the level of certainty is that of a virtual certainty or certainty to a very high degree; (iv) in his charge when he charged the jury that the death that had occurred in this case had been clearly "unlawful" thereby trespassing on matters of fact which were solely within the province of the jury; (v) by permitting the jury to visit the rubbish chute, into which the appellant forcibly pushed the deceased, whilst they were engaging in their deliberations, no application having been made by the prosecution or defence for a visit to the locus during the course of the evidence being given at the trial, but in respect of which photographs of same had been adduced in evidence and were exhibits in the case before the jury; (vi) by permitting the jury to visit the said rubbish chute and to view same in the absence of the appellant himself and his legal representatives who were not present and by permitting the jury to throw a stone down the chute being something far beyond merely visiting the locus and failing to give the legal representatives any opportunity to make submissions as to whether or not same should be permitted; and (vii) by failing to give any adequate summary to the jury with regard to the evidence adduced by the appellant at the trial.

Held by the Court that the evidence established that on the evening of the 13th May 2013 the appellant was interviewed by Gardaí in the ordinary course of their house to house enquiries following the discovery of the deceased's body and that the appellant was not a suspect at that time and that therefore there was no necessity to caution him before speaking to him; there was therefore no breach of the Judges Rules and no unfairness to the appellant. In those circumstances, the Court held that the decision of the trial judge to admit the garda notes into evidence was correct. The Court was satisfied that notwithstanding the failure of the trial judge to deal with all matters raised in the application for a direction, the refusal of the application was correct; the various matters raised on behalf of the appellant in support of his application for a direction were matters properly left for consideration by the jury. The Court noted that the trial judge did advise the jury that a 'not guilty' verdict was a possibility. The Court was satisfied that the charging of the jury was fair and sufficiently addressed those issues in the trial properly left for determination by the jury. The Court was satisfied that the jury ought not to have been permitted to attend the location of the rubbish chute in the course of their deliberations in the absence of any application that they do so from either the prosecution or the defence. Of greater concern to the Court was the fact that the jury were permitted to conduct a stone throwing experiment at the chute; that ought not to have been permitted. The Court was satisfied that the proper course to have been taken by the trial judge in the circumstances was to discharge the jury.

The Court held that it would quash the verdict of the jury and would in due course hear submissions as to the question of a retrial.

Appeal allowed.

JUDGMENT of the Court delivered on the 9th day of February 2018 by Mr. Justice Mahon

1 This is an appeal by the appellant against his conviction for the murder of Liam Manley on the 12th May 2013 at Garden City Apartments, in Cork. The appellant pleaded not guilty. His trial commenced on the 11th March 2015 and concluded, with the unanimous guilty verdict, on the 31st March 2015. He was sentenced to life imprisonment on the same date.

2 The appellant lived in an apartment in Cork city. On the night of the 9th May 2013 he found the deceased sitting on the pavement outside a shop in Cork city. The appellant said he felt sorry for the deceased because he himself had previously fallen on hard times. He took the deceased back to his apartment. Shortly afterwards a friend of the appellant, Mr. O'Mahony, called to his apartment. Both the deceased and Mr. O'Mahony had previously on occasion, stayed with the local Simon Community. In conversation between the three men reference was made to paedophiles staying at the Simon Community, and there was a reference by Mr. O'Mahony to the deceased having previously been involved in a paedophile incident. This appeared to annoy the appellant who then assaulted the deceased. He then proceeded to ejected the deceased from his apartment having helped to wipe blood from his bleeding lip before doing so. When the deceased tried to regain entry into the apartment, the appellant forcibly pushed him into a rubbish chute which was used to take bags of rubbish from the various apartment floors down to the basement area of the apartment block. The appellant maintained that he did not in any way intend to harm the deceased and he assumed that he would simply have slid safely down into the basement area and then left the building.

3 On the following Monday, the 13th May 2013 Mr. Ford, whose job it was to clear out rubbish from the apartment block, found the bin chute in the apartment block to be blocked. Because of a slight bend in the chute black refuse bags occasionally jammed and blocked the chute. As he attempted to unblock it on that day the deceased's body was released itself and dropped out of the chute.

4 Dr. Margaret Bolster, the Assistant State Pathologist gave evidence that the cause of death was mechanical asphyxia, associated positional asphyxia and hypoxia or lack of oxygen due to being trapped inside the waste chute.

5 Evidence given in the course of the trial indicated that the deceased had been homeless for some period of time and had lived in homeless accommodation in the city. He had a problem with alcohol, and on the night of the 9th May 2013 had been turned away from a hostel facility because he was intoxicated, and told to return later in the evening when he had sobered up. It was within this space of time that the deceased met the appellant and was taken by him back to his apartment.

6 The appellant gave evidence in the course of his trial. He emphasised that he had never wished to harm or kill the deceased and that he was devastated as a consequence of what had occurred.

Grounds of appeal

7 A number of grounds of appeal are maintained on behalf of the appellant. They are:-

(i) erred in law when allowing into evidence statements made by the appellant to Detective Garda Harrington and Detective Garda Maher at the appellant's apartment on the evening of the 13th May 2013. ('The un-cautioned interview').

(ii) erred in law in refusing the appellant's application at the close of the prosecution case to direct the jury to find the appellant not guilty.

(iii) erred in law in incorrectly charging the jury with regard to oblique intention and / or with regard to s. 4(2) of the Criminal Justice Act 1964 in that he failed to charge the jury at all regarding the level of certainty required in relation to a person being presumed to intend the natural and probable consequences of his actions, the law being that the level of certainty is that of a virtual certainty or certainty to a very high degree.

(iv) erred in law in his charge when he charged the jury that the death that had occurred in this case had been clearly 'unlawful' thereby trespassing on matters of fact which were solely within the province of the jury.

(v) erred in law by permitting the jury to visit the rubbish chute whilst they were engaging in their deliberations, no application having been made by the prosecution or defence for a visit to the locus during the course of the evidence being given at the trial, but in respect of which photographs of same had been adduced in evidence and were exhibits in the case before the jury. He further erred by permitting the jury to visit the said rubbish chute and to view same in the absence of the appellant himself and his legal representatives who were not present and by permitting the jury to throw a stone down the chute being something far beyond merely visiting the locus and failing to give the legal representatives any opportunity to make submissions as to whether or not same should be permitted.

(vi) erred in law and in fact by failing to give any adequate summary to the jury with regard to the evidence adduced by the appellant at the trial.

8 For convenience, and having particular regard...