DPP v O'Brien

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 21 December 2015
• Neutral Citation: [2015] IECA 312
• Docket Number: Record Nos: 311 & 310/12
• Court: Court of Appeal (Ireland)
• Date: 21 December 2015

[2015] IECA 312

THE COURT OF APPEAL

Edwards J.

Record Nos: 311 & 310/12

Ryan P.

Sheehan J.

Edwards J.

The People at the Suit of the Director of Public Prosecutions

Respondent

v

Patrick O'Brien and Thomas Stewart

Appellant

Conviction — Murder — Evidence — Appellants seeking to appeal against convictions — Whether trial judge erred in law in admitting evidence

Facts: The appellants, Mr O’Brien and Mr T Stewart, tried jointly as co-accused, were each convicted of the double murders of a Mr Kelly and a Ms Waters on the 9th January, 2011, at 531 O’Malley Park, in Limerick, by unanimous verdicts of a jury on the 26th October, 2012 following a trial before the Central Criminal Court. The appellants were each sentenced to two mandatory sentences of imprisonment for life, to run concurrently and to date from the 10th January 2011. Both appellants appealed to the Court of Appeal against their convictions. Mr O’Brien sought to appeal his conviction on the grounds that the trial judge erred in law in: 1) admitting into evidence the voice recognition evidence offered by Ms Kelly, sister of Mr Kelly; 2) admitting the statement of Mr P Stewart, brother of Mr T Stewart, pursuant to s. 16 of the Criminal Justice Act 2006; 3) permitting the prosecution to call evidence that CCTV footage viewing 531 O’Malley Park, Limerick showed two persons exiting from 531 O’Malley on the morning of the 9th of January 2011 when it was a matter of fact for the jury to determine as to how many people exited from the said house at that time. Mr T Stewart sought to appeal his conviction on the grounds that the trial judge erred in law in: 1) ruling that Detective Sergeant Thompson and/or Garda Jones could state in evidence that two persons are visible on CCTV Exhibit JD4 entering 531 O'Malley Park at a certain date and time and that one person is visible on CCTV Exhibit JD4 exiting 531 O'Malley Park at a certain time on the 9th January 2011; 2) ruling that the opinion in evidence of Detective Garda O'Neill to the effect that one can sustain an injury to the web of the hand between the thumb and index finger when discharging a sawn-off shotgun, when such opinion was prompted when the witness was shown photographs of such an injury on the right hand of Mr T Stewart which was part of the fruits of an illegal search and detention on foot of a warrant obtained pursuant to s. 29 of the Offences against the State Act 1939; 3) allowing the prosecution to adduce evidence from Detective Garda O'Neill that a person using a sawn off shot gun could suffer an injury to the web of the right hand between the thumb and index finger, where the prejudicial value of this evidence far out-weighted any probative value it might have.

Held by Edwards J that, in the circumstances of the case, where the proposed voice recognition evidence was clear and cogent in its terms, and was fully capable of being properly and effectively cross-examined upon and tested in terms of its credibility and reliability, there was no reason the jury should not have received the evidence of Ms Kelly, providing it was coupled with a suitable The People (Attorney General) v Casey (No 2) [1963] IR 33 / R v Turnbull [1976] 63 Cr App R 132 type warning adapted to the context of voice recognition evidence; such a warning was duly given in this case. It was clear to the Court from the trial judge’s entire approach that he was fully au fait with the requirements of the 2006 statute. The Court held that in the circumstances of the case the evidence of Garda Jones, concerning what he observed on the video footage, and his perceptions or deductions based upon those observations, was properly admitted as an exception to, and notwithstanding, the general rule that lay witnesses may not express opinions as to a fact in issue. The Court was not satisfied in the circumstances that there was any usurpation of the jury’s function, or any risk of injustice on account of the jury having been made aware of Garda Rice’s view of the inferences to be drawn from the observable facts as recorded on the CCTV footage. The Court was satisfied that where no unconstitutionally obtained evidence was adduced, no question of any taint arises in so far as the evidence given by Detective Garda O’Neill is concerned. In the circumstances, the evidence of Detective Garda O’Neill was held to be relevant and probative, and there was no basis for excluding it.

Edwards J held that both appeals should be dismissed.

Appeal dismissed.

Judgment of the Court delivered 21st of December 2015 by Mr. Justice Edwards

Introduction

1 This is a case in which the appellants, who were tried jointly as co-accused, were each convicted of the double murders of Desmond Kelly and Breda Waters on the 9th January, 2011, at 531 O'Malley Park, in Limerick, by unanimous verdicts of a jury on the 26th October, 2012 following a fourteen day trial before the Central Criminal Court.

2 Following their convictions, the appellants were each sentenced to two mandatory sentences of imprisonment for life, to run concurrently and to date from the 10th January 2011.

3 Both appellants now appeal against their convictions for murder.

The general circumstances of the case and evidence in controversy.

4 Just before 9 am. on Sunday, 9th January, 2011, two men whom the prosecution maintain were acting in concert, one of whom was armed with a sawn off shotgun, entered a dwellinghouse at 531 O'Malley Park, Limerick City, the home of Desmond Kelly and his family.

5 Desmond Kelly was present in the house at the time, as was his sister Theresa Kelly, his 5 month old baby daughter Lily Rose, and a Breda Waters who was a friend of Desmond Kelly. While the two men were present in the house there were two shootings. Mr. Kelly was shot in the head while in the kitchen and Breda Waters was shot in the neck while she was in an upstairs bedroom. The injuries sustained by both victims proved fatal. Following the shootings the assailants, whom the respondent contends were the appellants, then left the house.

6 At the appellants' trial before the Central Criminal Court the respondent called evidence from Theresa Kelly, who stated that at the time of the shooting she had known Pa O'Brien, the first named appellant, for approximately four and a half years. She had in fact been engaged to Mr O'Brien's brother in law, Jonathan Cremins, until he had died in tragic circumstances. She testified that on the 8th of January, 2011, the evening before the shootings, she was present in the house at 531 O'Malley Park when the first named appellant and his wife, Susan, called at about 8pm. Desmond Kelly, his partner Olivia Mullins and their three children were also there. At a certain point later in the evening Susan O'Brien showed the adults present a text message on her phone. The text message said ‘I hope you get riddled with cancer, die bitch die’ and ‘He'll be mine’. After this Pa O'Brien asked Desmond Kelly if he would he slash Tina Waters's face. Theresa Kelly also gave evidence that later, as Pa O'Brien was leaving, he addressed a further remark to Desmond Kelly, stating ‘I'll return the favour’.

7 The jury heard that everyone eventually left the house except for Desmond Kelly, Theresa Kelly, the baby Lily Rose, and Olivia Mullins. Ms Mullins was due to sleep elsewhere that night, as indeed were the older two of her three children who were amongst those who had left 531 O'Malley Park earlier. It had been prearranged that Theresa Kelly would babysit overnight at 531 O'Malley Park in the absence of the baby's mother. Ms Kelly recalled that at a later stage of the evening Matthew Quinn, who was a friend of Desmond Kelly's, called to the house at 531 O'Malley Park, and that, later still, two sisters Martina (otherwise Tina) Waters and Breda Waters also called. Theresa Kelly testified that there was drinking and music and a bit of a party. She further stated that after a while, in or about midnight, she went upstairs with the baby and retired to bed, sleeping in the same bedroom as the baby.

8 Ms Kelly's evidence was that on the following morning at about 9 o'clock she heard a knock at the door followed by someone speaking for about 50 seconds and then a bang. These sounds came from downstairs. Ms Kelly did not leave her room. The next thing she heard was two people coming up the stairs. She stated that she knew there were two people because she could hear them whispering to each other. The next thing she heard was ‘Pa O'Brien asking Breda Waters “where's Tina and the other fella?”’, to which ‘Breda said “I swear to god that they're up in, they're up in their uncle's house.”’ She testified that the question was put again, and Breda Waters swore, and then said ‘They're up in the other, in Matthew's uncle's house. The only one that's here next door is Theresa and the baby.’ Ms Kelly stated that she then heard a noise ‘like if somebody hit a stick off my mother's door, like, and then I heard Pa O'Brien putting on a traveller's accent saying, “John Boy Reilly, John Boy Reilly, check her for a phone, check her for a phone.”’ She stated that then there was silence, that the persons concerned went away and that she had thought that Dessie went with them. She stated that they had walked down the stairs, that they did not run, and so she just fell back to sleep.

9 Ms Kelly stated that she awoke again about an hour later when the baby was crying and she went to make her a bottle. She left the bedroom and looked into the adjacent bedroom where she saw Breda Waters ‘ with her legs on the ground and thrown back’. She thought at that point that Breda Waters was merely asleep, having fallen asleep in that position in a drunken state. She then went downstairs and into the sitting room and saw her brother on the ground. She initially thought he was similarly asleep but then observed injuries to his head and...