Director of Public Prosecutions v Davy
| Jurisdiction | Ireland |
| Judge | Birmingham P. |
| Judgment Date | 20 June 2023 |
| Neutral Citation | [2023] IECA 200 |
| Court | Court of Appeal (Ireland) |
| Docket Number | [176/21] |
[2023] IECA 200
The President
Edwards J.
Kennedy J.
[176/21]
THE COURT OF APPEAL
JUDGMENT of the Court delivered on the 20th day of June 2023 by Birmingham P.
. This is an appeal against severity of sentence. It must be said that so far as appeals against severity of sentence go, it is an unusual one.
. The background to the recent severity hearing is to be found in the fact that the appellant, along with two others, was convicted on 4th August 2016 of the murder of Mr. Toddy Dooley on 12th February 2014. Having been convicted of murder, all three appealed to this Court. Before this Court, the routes followed diverged. One appellant, Mr. Sean Davy, was anxious to get on with his appeal, but the appellant in the present case, Mr. James Davy, and Mr. Matthew Cummins, were anxious, for whatever reason, to avoid an early hearing of the appeal. The preference of this Court to deal with all three appellants at the same time at a single appeal hearing was made clear at various management listings, but ultimately, a date was assigned for the hearing of the appeal in the case of Sean Davy. On 31st July 2018, his appeal against conviction was dismissed. The appeals of the appellant, James Davy, and of Mr. Cummins were heard on 11th May 2021. On 13th July 2021, this Court quashed the convictions for murder, but substituted convictions for impeding the apprehension or prosecution of another contrary to s. 7(2) of the Criminal Law Act 1997 (the “1997 Act”). In accordance with what has become the usual practice of this Court, where the conviction on one count is quashed, but a conviction on another count is substituted, the matter was remitted to the Central Criminal Court for sentence. This procedure has been found to be appropriate because it preserves the right of both sides to a sentence hearing at first instance, and if dissatisfied with what occurred there, the right to come before this Court.
. The facts surrounding the murder, and more significantly in the context of the convictions, contrary to s. 7(2) of the 1997 Act, i.e. what occurred after the killing, were set out in considerable detail in an earlier judgment of this Court ( DPP v. Cummins & Davy [2021] IECA 198) and it is not intended to repeat that exercise at this stage. A brief summary will suffice.
. The appellant, James Davy, and his cousin, Sean Davy, were among a group present together in a public house in Edenderry. At trial, the evidence was that James Davy had possession of a wooden baseball bat. At some point, a decision was taken to leave the public house and to continue socialising at a private residence where they were joined by Mr. Cummins. All three had consumed alcohol and a white powder, either cocaine or a head shop drug, referred to at trial as methadrone. At the dwelling, there were acts of criminal damage and it appeared all three were involved, and all three were requested to leave. Mr. Cummins knew the deceased, Mr. Dooley, having previously been to his home. Shortly after 5am, all three gained entry to Mr. Dooley's home through windows. The three who arrived at the house remained there for approximately one and a half hours before leaving together.
. On Sunday 16th February 2014, the body of the late Mr. Dooley was found. At that stage, he had been deceased for a number of days, having suffered severe head injuries. It was the prosecution case, and it is not in dispute, that Mr. Dooley had suffered a violent and savage death. The State Pathologist reported on finding burns to the body, where an attempt had been made to set the deceased on fire. After the murder, a number of items were removed from the home of the deceased. CCTV footage showed all three involved in the disposal of articles, including a bloodstained baseball bat, the one brought to the scene of the crime by James Davy, at a recycling centre. Among other items retrieved there were prescription tablets taken from the home of the deceased. Before the start of the trial, the appellant and his co-accused offered pleas to assisting an offender contrary to s. 7(2) of the 1997 Act, but that offer was not acceptable to the Director. At trial, the prosecution case was that all of the accused were jointly involved in the death of Mr. Dooley; it was presented as a case of joint enterprise and common design.
. In the course of this Court's judgment of 13th July 2021, the conduct of James Davy and Mr. Cummins in the aftermath of the murder was described as “reprehensible”. We have referred to the efforts to burn the body, the stealing of property, and the disposal of incriminating items as “deeply unsavoury”. The Court felt that while those factors could certainly be pointed to, when considering what evidence there was of the existence of an agreement, they were not determinative of the issue. The Court concluded there was insufficient evidence to infer an agreement to commit murder to which the appellant and Mr. Cummins were party. However, the Court commented that there was overwhelming evidence of guilt insofar as the offences under s. 7(2) of the 1997 Act were concerned.
. The response of James Davy and of his co-accused, Mr. Cummins, to having their murder convictions quashed and convictions for assisting an offender substituted was to apply to the Central Criminal Court for bail. On 6th August 2021, a bail application was heard, the outcome of this being that the judge directed the appellant be released on bail on 23rd August 2021, at which stage he would have spent a period in custody, which was the equivalent to that which would be spent by someone serving a nine-year sentence. The application for bail on 6th August 2021 focused to a major extent on the fact that calculations carried out by the defence indicated that by 23rd August 2021, he would have served in custody a period equivalent to a nine-year sentence.
. When ruling on the bail application, the judge referred to the fact that the offence under s. 7(2) of the 1997 Act carried a maximum penalty of ten years. He referred to the fact that both accused before the Court had offered to plead, before trial, to the offence of assisting an offender, so it was the situation that the Court would be obliged to take into account that matters should be treated as an early plea, but said that while not wanting to pre-empt the sentence hearing, which had been fixed for 2nd September 2021 before him,...
To continue reading
Request your trial