DPP v Anthony McCarthy and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 25 July 2007
• Neutral Citation: [2007] IECCA 64
• Date: 25 July 2007
• Court: Court of Criminal Appeal
• Docket Number: [C.C.A. Nos. 17, 25, 26, 27 and

DPP v MCCARTHY & ORS

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT / PROSECUTOR

AND

ANTHONY MCCARTHY, CHRISTOPHER COSTELLO, DAVID STANNERS, JAMES MCCARTHY & DESMOND DUNDON

APPLICANTS/ APPELLANTS

[2007] IECCA 64

Kearns J.

Dunne J.

McGovern J.

[28/04]

[25/04]

[27/04]

[26/04]

[17/04]

THE COURT OF CRIMINAL APPEAL

CRIMINAL LAW

Trial

Disclosure - Fair trial in due course of law - Character of prosecution witness - Whether lack of disclosure rendered trial unfair - Braddish v DPP [2001] 3 IR 127, Dunne v DPP [2002] 2 IR 305, Scully v DPP [2005] 1 IR 242 and McFarlane v DPP [2006] IESC 11, [2007] 1 IR 134 applied; DPP v Special Criminal Court [1999] 1 IR 60, R v Collister and Warhurst (1955) 39 Cr App R 100, R v Parks [1961] 1 WLR 1484, R v Sweet-Escott (1971) 93 Cr App R 316, R v Paraskeva (1982) 76 Cr App R 162 and People (DPP) v Cronin (No 2) [2006] IESC 9, [2006] 4 IR 329 considered; People (DPP) v Eamon Kelly [1987] IR 596 and People (DPP) v McKevitt [2005] IECCA 139 (Unrep, CCA, 9/12/2005) distinguished - Pre-trial publicity - Fair trial in due course of law - Fade factor - Warnings of trial judge - Whether media coverage rendered trial unfair - Whether adjournment should have been granted - Whether warnings to jury sufficient - D v DPP [1994] 2 IR 465, Z v DPP [1994] 2 IR 476 and People (DPP) v Nevin [2003] 3 IR 321 applied; Montgomery v HM Advocate [2003] 1 AC 641 considered; Zoe Developments Ltd v DPP (Unrep, Geoghegan J, 3/3/1999) distinguished - Separate trials - Hearsay evidence - Cross-examination by co-accused - Application for separate trials - Whether application should have been granted - Jury - Juror employed in garda station - Whether objective bias present - Jury not warned not to discuss case with other people - Whether failure to warn jury rendered trial unfair - People (DPP) v Tobin [2001] 3 IR 469 and People (DPP) v McDonagh [2003] 4 IR 417 applied; R v Melvyn John Prime [1973] 57 Ct App 632 distinguished - Juries Act 1976 (No 4), s 16 - Identification evidence - Recognition - Judge's charge - Identification warning - Whether warning sufficient - Whether appropriate to read excerpt from judgment - People (AG) v Casey (No 2) [1963] 1 IR 33 applied, People (DPP) v O'Reilly [1990] 2 IR 415 and R v Turnbull [1977] QB 224 considered, People (DPP) v O' Donovan [2005] 1 IR 385 explained - Evidence - Accomplice evidence - Whether trial judge correct in deciding insufficient evidence to render witness accomplice - AG v Joyce & Walsh [1929] IR 526 applied; Davies v DPP [1954] AC 378, People (AG) v Carney [1955] IR 324 and People (DPP) v Diemling (Unrep, CCA, 4/5/1992) distinguished - Leave to appeal refused (17, 25, 26, 27 & 28/2004 - CCA - 25/7/2007) [2007] IECCA 64

People (DPP) v McCarthy

The applicants applied for leave to appeal. They contended inter alia: that the prosecution had failed to make full pre-trial disclosure to the defence; that no trial should have taken place because of the media interest and publicity; that the trial judge erred in refusing to direct separate trials; that there were inconsistencies in the evidence; that there were irregularities in the jury; and that the trial judge failed to give an accomplice warning to the jury.

Held by the Court of Criminal Appeal in refusing the application that the application for leave to appeal failed on all grounds.

Reporter: R.W.

DPP v CRONIN 2006 2 ILRM 40

1DPP v SPECIAL CRIMINAL COURT & WARD 1999 1 IR 60

DPP v KELLY 1987 IR 596 3 FREWEN 295 1987 6 1565

R v COLLISTER & WARHURST 1995 39 CAR 100

R v PARKS 1961 1 WLR 1484

R v PARASKEVA 1982 76 CAR 162

BRADDISH v DPP & HAUGH 2001 3 IR 127 2002 1 ILRM 151 2001/2/351

DUNNE v DPP 2002 2 IR 305 2002 2 ILRM 241 2002 7 1645

SCULLY v DPP 2005 1 IR 242 2005 2 ILRM 203 2005 54 11281

MCFARLANE v DPP & SPECIAL CRIMINAL COURT UNREP SUPREME 7.3.2006 2006 IESC 11

DPP v MCKEVITT UNREP CCA 9.12.2005 2005 IECCA 139

WILLIAMS CRIMELORDS 2004

MONTGOMERY v HM ADVOCATE & ANOR; COULTER v HM ADVOCATE & ANOR 2003 1 AC 641

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

D v DPP 1994 2 IR 465 1994 1 ILRM 435

Z v DPP 1994 2 IR 476

ZOE DEVELOPMENTS v DPP & NATIONAL AUTHORITY FOR OCCUPATIONAL SAFETY & HEALTH UNREP SUPREME 3.3.1999 1999/25/8085

R v WEST 1996 2 CAR 374

DPP v NEVIN 2003 3 IR 321 2003 19 4217

DPP v DAVIS 2001 1 IR 146 2001 2 ILRM 65 2000 7 2471

DPP v O'SULLIVAN UNREP MCGUINNESS 26.11.2003 (EX TEMPORE)

DPP v HOURIGAN & O'DONOVAN UNREP CCA 19.3.2004 2004/15/3488

CRIMINAL PROCEDURE ACT 1865 S4

CRIMINAL PROCEDURE ACT 1865 S5

AG v JOYCE & WALSH 1929 IR 526

JURIES ACT 1976 S16

DPP v TOBIN 2001 3 IR 469 2002 1 ILRM 428 2001 8 2198

DPP v MCDONAGH 2003 4 IR 417 2003 18 4101

R v PRIME 1973 57 C APP R 632

PEOPLE (AG) v CASEY (NO 2) 1963 IR 33

DPP v O'DONOVAN UNREP CCA 10.12.2004 2004 IECCA 48

R v TURNBULL 1977 QB 224

DPP v O'REILLY 1990 2 IR 415

AG v LINEHAN 1929 IR 19

DPP v CARNEY 1955 IR 324

DAVIES v DPP 1954 AC 37

PEOPLE (DPP) v DIEMLING UNREP CCA 4.5.1992

1 JUDGMENT of the Court delivered by Mr. Justice Kearns on the 25th day of July, 2007.

BACKGROUND FACTS

2 At around 9 p.m. on the night of 29th January, 2003, Kieran Keane, a notorious Limerick gangland figure, was shot dead with a single bullet to the head on an unlit country road at Drombanna outside Limerick. His nephew, Owen Treacy, who with Kieran Keane had been abducted earlier that evening, suffered multiple stab wounds at the same location and was left for dead on the side of the road by three assailants whom he subsequently identified as David Stanners, James McCarthy and Christopher Costello, being three of the applicants herein. At the end of the trial which commenced on 4th, November, 2003 at the Central Criminal Court sitting at Cloverhill Courthouse in the County of Dublin and concluded on 20th December, 2003, all five applicants were found guilty of the murder of Kieran Keane, the attempted murder of Owen Treacy and the false imprisonment of both Kieran Keane and Owen Treacy. None of the applicants gave evidence and there was no issue which the jury had to resolve about bad character in relation to either Owen Treacy, who was the main prosecution witness, or any of the applicants. The learned trial judge refused leave to appeal and the matter comes before this Court by way of application for leave to appeal.

3 The events giving rise to the prosecution covered a four hour period on the evening of 29th January, 2003 commencing shortly before 7 p.m. On that evening Owen Treacy went with his uncle, Kieran Keane, to the home of the mother of Anthony McCarthy, one of the applicants herein, at an address known as 5, Fairgreen. Kieran Keane was driving a Passat motorcar, a vehicle which Owen Treacy described in evidence as "hot", indicating that the police might stop this vehicle on sight. Indeed, within minutes of leaving the home address of Owen Treacy, it appears that two passing gardaí did spot the vehicle, attempted to follow it, but lost it fairly quickly. On arrival at Fairgreen, the Passat was carefully parked where it would not be seen by any passing garda vehicle, and the two men then walked the short distance to 5, Fairgreen. Just outside this property, they met a Mr. Galvin who was reversing a silver Micra car onto the driveway of Fairgreen. On entering the house, Kieran Keane and Owen Treacy were confronted by Anthony McCarthy (otherwise known as "Noddy" McCarthy) who was carrying a handgun. In his company was the second applicant, Desmond Dundon. Dundon produced a mobile phone and asked Kieran Keane to call two other men, the Collopys, who also lived locally and were known to be associates of Kieran Keane in the context of ongoing gangland feuding in Limerick City. Kieran Keane refused to comply with that request which was repeated on a number of occasions. The two men were detained at 5, Fairgreen for about an hour, during the course of which Desmond Dundon secured their hands behind their backs with tape and hoods were placed over their heads. In relation to Owen Treacy, he maintained the hood which was placed over his head was made of a fabric which had lots of holes, so he could see through it. Whilst being so detained, two men wearing balaclavas appeared from the kitchen. Owen Treacy recognised one of these men as the applicant, David Stanners (otherwise David "Frog Eyes" Stanners).

4 After about one hour during which Kieran Keane continued his refusals to call the Collopys, both men were placed into the boot space of the Micra car which was on the driveway. The applicant Anthony McCarthy drove the motorcar with Mr. Galvin in the front passenger seat. Both Mr. Keane and Mr. Treacy were hooded and bound and concealed in the boot of the car during the course of a short journey to an address at 79, Roundwood, which was the address of Mr. Galvin's mother. The car was parked inside the garage adjoining the property. Desmond Dundon, who had obviously arrived at the property separately, was there to greet the car as it arrived. Messrs McCarthy, Galvin and Dundon took Messrs Keane and Treacy upstairs in the premises. Anthony McCarthy still had the handgun at this stage. Repeated requests were made to call the Collopys, all of which were refused. At some stage during this interrogation, the hoods were removed. Also, at some unspecified stage, some six stabbing or torture type wounds were inflicted to the left side of Kieran Keane's head.

5 At some time before 9 pm a Hiace van arrived and parked on the driveway. Both Kieran Keane and Owen Treacy were placed in the back of this van and driven away. The other occupants of the van were David Stanners, James McCarthy and Christopher...