DPP v Campion
| Jurisdiction | Ireland |
| Judge | Ms. Justice Iseult O'Malley |
| Judgment Date | 30 July 2018 |
| Neutral Citation | [2018] IESC 35 |
| Date | 30 July 2018 |
| Court | Supreme Court |
| Docket Number | [Supreme Court Appeal No. 60/2015] [Central Criminal Court Record No: CC86/06],[S.C. No. 60 of 2015] |
[2018] IESC 35
O'Malley Iseult J.
Clarke C.J.
O'Donnell Donal J.
McKechnie J.
Dunne J.
O'Malley Iseult J.
[Supreme Court Appeal No. 60/2015]
[Court of Appeal No: 256/07]
[Central Criminal Court Record No: CC86/06]
THE SUPREME COURT
Conviction – Murder – Admissibility of evidence – Appellant seeking to appeal against conviction – Whether the trial judge should have directed an acquittal on the ground that the evidence of a witness could not be relied upon
Facts: The appellant, Mr Campion, in October and November 2007, stood trial along with three co-accused on the charge of murdering Mr Fitzgerald in Limerick on the 29th November 2002. The appellant was the only person convicted. The appellant contended that Mr Cahill's reliability as a witness may have been impaired by reason of mental illness. An application for facilities to have him psychiatrically examined on behalf of the various defendants before he gave evidence did not succeed, nor did the application made on behalf of the appellant for a direction at the close of the prosecution case. The appellant argued, firstly, that in the absence of the requested examination the trial judge should not have permitted the trial to proceed. Secondly, the appellant argued that having heard the evidence the trial judge should have directed an acquittal on the ground that Mr Cahill's evidence could not be relied upon. Questions as to the admissibility of certain expert evidence arose in that context. An appeal to the Court of Appeal was dismissed. The appellant appealed to the Supreme Court from the decision of the Court of Appeal.
Held by the Court that it was clear that the trial judge was prepared to consider the admission of appropriate expert evidence bearing upon the mental condition of the witness insofar as it affected his reliability, but that no such evidence was proffered. It seemed to the Court that in those circumstances the Court should not attempt to resolve the question of the parameters of the admissibility of evidence of this nature, and that it should be left to a case where the issue truly arises.
The Court held that, in the circumstances, the appeal would be dismissed.
Appeal dismissed.
In October and November 2007 the appellant stood trial along with three co-accused (Desmond Dundon, John Dundon and Anthony Kelly) on the charge of murdering Mr. Brian Fitzgerald in Limerick on the 29th November 2002. The appellant was the only person convicted.
It is agreed between the parties that, while there was some other evidence relied upon by the prosecution as implicating the appellant in the murder, the primary evidence against him came from a Mr. James Martin Cahill. That witness had previously pleaded guilty to the murder and had been sentenced to life imprisonment, having admitted to being the person who actually shot Mr. Fitzgerald.
It is clear that the case that the prosecution expected to make out against all of the accused was based almost entirely on Mr. Cahill's evidence. In his opening speech to the jury, counsel for the prosecution said that Mr. Cahill would give an account of his movements for the days prior to the 29th November 2002. This involved travelling to various places and having discussions about the murder with various people. He would say that on the 27th November he met with a Mr. LM (who was not available for trial at that time, and whose name was not reported during the trial), who offered him €10,000 to carry out the murder. As far as the persons before the court were concerned, Mr. Cahill would say that on the 28th November Anthony Kelly gave him a gun and bullets. He would describe meeting with Desmond Dundon and John Dundon later that day. Another man was meant to provide a motorcycle that evening, but he reported that it was not in working order. Gary Campion, the appellant, was then contacted. He agreed to provide and drive a motorcycle.
Counsel anticipated that Mr. Cahill would say that he went with these three individuals, and another man not before the court, to look at the estate where Brian Fitzgerald lived, and that John Dundon pointed out a place where they could hide. They then drove to the nightclub where Mr. Fitzgerald worked as a bouncer, dropping John Dundon off on the way. Mr. Cahill would say that as they went past the nightclub, at about 11 o'clock or 12 midnight, Desmond Dundon pointed out Mr. Fitzgerald and said that he would call Mr. Cahill when Mr. Fitzgerald left for home.
Mr. Cahill would say that he and the appellant lay in wait for Mr. Fitzgerald in the place indicated by John Dundon and that Desmond Dundon rang him about two hours later to tell him that Mr. Fitzgerald was on the way. When he arrived Mr. Cahill shot him dead. He would say that he then searched Mr. Fitzgerald's car and found a small handgun. He left the scene, with the appellant, on the motor cycle provided by the appellant.
It was further expected that Mr. Cahill would say that he left this jurisdiction and met up with LM and John Dundon in Belfast. They subsequently went to Manchester and met with Anthony Kelly. All of them conversed about the murder.
In the event, Mr. Cahill's evidence did not go entirely as anticipated by the prosecution. This led to a direction in John Dundon's case. The other two co-accused were acquitted by the jury. However, Mr. Cahill's evidence in respect of the appellant was largely as expected – he said that he was sent for when the first motor cycle did not work, was unable to fix it, agreed to get and drive another one and did in fact provide and drive a motor cycle to transport Mr. Cahill to and from the murder scene. Evidence assessed by the trial judge as being capable of corroboration of this account included clips of CCTV showing the appellant in particular places at material times, and the evidence of a taxi driver who picked up a passenger nearby the site where the motor cycle was burned and drove him to the road where the appellant lived. It should also be emphasised that it was never suggested that Mr. Cahill did not in fact commit the murder, and that the eyewitness evidence of Mr. Fitzgerald's wife established that two men were present at the shooting.
The issues in the appeal arise from the appellant's contention that Mr. Cahill's reliability as a witness may have been impaired by reason of mental illness. An application for facilities to have him psychiatrically examined on behalf of the various defendants before he gave evidence did not succeed, and nor did the application made on behalf of the appellant for a direction at the close of the prosecution case.
In summary, the appellant now argues, firstly, that in the absence of the requested examination the trial judge should not have permitted the trial to proceed. Secondly, having heard the evidence the trial judge should have directed an acquittal on the ground that Mr. Cahill's evidence could not be relied upon. Questions as to the admissibility of certain expert evidence arise in this context.
An appeal to the Court of Appeal was dismissed (see The People (Director of Public Prosecutions) v. Campion [2015] IECA 190).
In granting leave to appeal from the decision of the Court of Appeal ( [2016] IESCDET 147), the Court framed the issues in the following way:
(i) In a criminal trial, is expert evidence admissible in relation to (a) the competence and (b) the credibility of a witness if there is material before the court indicating a real possibility that the reliability of that witness's testimony may be affected by mental illness?
(ii) If the answer to Question (i) is Yes, and the witness refuses to undergo examination, or is for some other reason unavailable for examination by the parties, should the trial judge stop the trial?
(iii) If the answer to Question (ii) is No, is it a matter to be taken into account by the trial judge in considering an application for a direction?
(iv) If no expert evidence has been adduced, is an appellate court entitled to review the decision of the trial judge to permit the case to go to the jury on the basis of his own assessment of the reliability of the witness?
The first two issues arise from applications made to the trial judge at an early stage in the trial, while the latter two relate to the ruling on the applications for a direction.
This trial was adjourned from May 2007 to October of that year because disclosure was not complete. Even so, there was considerable time spent before the trial proper began in dealing with issues concerning disclosure. On foot of the material thereby obtained, including Mr. Cahill's prison medical records, a number of expert reports were commissioned on behalf of the defence.
It must be noted here that, unfortunately, the reports do not appear to have been put before the trial court with any degree of formality, still less adduced in evidence and made exhibits – indeed, counsel do not all appear to have necessarily envisaged that the trial judge would read them as opposed to hearing counsel's summary of their contents. It further appears that copies were not shared amongst the co-accused. This aspect caused difficulties when this Court sought copies of the reports for the purposes of this appeal – neither the appellant nor the Director of Public Prosecutions had a complete set and they were not on the court file. Three reports sought by defence solicitors, and one furnished to them by way of disclosure, have been procured but it has proved impossible to obtain a further report believed by the appellant's representatives to have been before the trial judge. In fact, it...
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