DPP v Campion

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 31 July 2015
• Neutral Citation: [2015] IECA 190
• Court: Court of Appeal (Ireland)
• Date: 31 July 2015

DPP v Campion

The People at the Suit of the Director of Public Prosecutions

V

Gary Campion

Appellant

[2015] IECA 190

The President

Birmingham J.

Sheehan J.

CCA256/07

THE COURT OF APPEAL

Conviction – Murder – Witness evidence – Appellant seeking to appeal against conviction – Whether trial judge erred in failing to rule upon whether or not the principal prosecution witness was fit to give evidence

Facts: The appellant, Mr Campion, in October, 2007, along with three co-accused, stood trial in the Central Criminal Court charged with the murder of a Mr Fitzgerald in November, 2002. In November, 2007, a unanimous jury returned a guilty verdict in respect of Mr Campion and the mandatory life sentence was imposed. At trial the principal prosecution witness was a Mr Cahill who at an earlier stage had pleaded guilty to the murder and had received the mandatory sentence. The case against Mr Campion was that he was an accomplice who was present along with Mr Cahill during the murder and assisted him in committing the crime. The appellant appealed to the Court of Appeal against his conviction. The appellant submitted that the trial judge erred in: 1) failing to rule upon whether or not Mr Cahill was fit to give evidence; 2) allowing the trial to continue in circumstances where Mr Cahill had not submitted to a psychiatric assessment; 3) failing to reconsider his decision as to the continuation of the trial without psychiatric assessment of Mr Cahill after he started to give evidence and his grave psychiatric problems became manifestly obvious; 4) allowing the continuation of the trial, without a proper transcription of the psychology notes pertaining to Mr Cahill made by Dr O”Higgins when the notes were utterly illegible and of no value in the absence of same; 5) failing to accede to a defence submission of no case to answer upon such application being made on the grounds of the inconsistencies within the evidence and patent unreliability of the key prosecution witness, Mr Cahill, in respect of whose evidence the jury could not be properly directed; 6) allowing the trial to continue in circumstances where the evidence of Mr Cahill represented such a radical and significant departure from the case opened by the prosecution; 7) directing that obscure CCTV footage was capable of being corroborative to the prosecution case against the appellant when the footage was of such poor quality that identification of the appellant and by virtue of same, corroboration of the prosecution case, was in the circumstances impossible; 8) his directions to the jury as to the approach to and consideration of evidence capable of being corroboration, in that he directed that the jury first consider the strength and reliability of the said evidence before consideration of the value or weight (if any) of the evidence offered by Mr Cahill; 9) failing to recuse himself from the trial of this matter, after it was represented to the court by the prosecution that the court and by implication the trial judge was to be the subject of an attack with explosives by elements connected with the defendants.

Held by Birmingham J that this was a case where the prosecution depended on the evidence of Mr Cahill. Birmingham J regarded Mr Cahill as a most unusual witness. Birmingham J noted that the jury were carefully and strongly warned by the judge about the dangers of acting on Mr Cahill”s evidence in the absence of corroboration and that the jury was clearly conscious of that warning and indeed heeded that warning as was evident from the fact that they returned not guilty verdicts in the case of two of the co-accused where there was no corroboration. However, in the case of Mr Campion, Birmingham J observed that the position was very different as there was significant evidence that was capable of amounting to corroboration and other evidence which, if not meeting all the criteria for corroboration, was certainly supportive of the State case. In those circumstances, Birmingham J held that it was for the jury to decide whether the evidence as a whole was sufficient to satisfy them beyond reasonable doubt that Mr Campion was guilty of murder; they concluded that it was, in part because Mr Cahill was such an unusual witness. Birmingham J held that the jurors who sat through the trial were much better positioned than the Court of Appeal was, which was confined to the reading of the transcripts, to make that assessment. Birmingham J held that the jury”s unanimous conclusion that all of the evidence that had been put before them was such as to satisfy them beyond reasonable doubt of Mr Campion”s guilt was a conclusion that they were fully entitled to reach and one with which the Court could not interfere.

Birmingham J held that the appeal should be dismissed.

Appeal dismissed.

1 1. On the 15 ^th October, 2007, the appellant, Mr. Gary Campion, along with three co-accused, Mr. Desmond Dundon, Mr. John Dundon and Mr. John Kelly, stood trial in the Central Criminal Court charged with the murder of Brian Fitzgerald on the 29 ^th November, 2002. On the 15 ^th November, 2007, which was day nineteen of the trial, a unanimous jury returned a guilty verdict in respect of Mr. Campion and the mandatory life sentence was imposed. The jury returned not guilty verdicts in the case of Desmond Dundon and Anthony Kelly while Mr. John Dundon had been found not guilty at an earlier stage by direction of the trial judge.

2 2. At trial the principal prosecution witness was one James Martin Cahill who at an earlier stage had pleaded guilty to the murder and had received the mandatory sentence. The prosecution case had been that different roles had been played by the four accused and by Mr. Cahill. The prosecution contention was that James Martin Cahill was the gunman who had fired the shots that killed Mr. Fitzgerald. The case made against Desmond Dundon was that he had accompanied Mr. Cahill to the nightclub where Mr. Fitzgerald was employed as head of security and had pointed out Mr. Fitzgerald to Mr. Cahill so that Mr. Cahill would recognise him when it came to carrying out the murder. The case against Mr. John Dundon was that in the course of a reconnaissance trip which was carried out on the day before the murder that he had pointed out an area to Mr. Cahill where he should lie in wait for Mr. Fitzgerald before launching his attack. The case against Mr. Anthony Kelly was the he had provided the handgun used in the murder and showed Mr. Cahill how to use it.

3 3. The case against Mr. Campion was that he was an accomplice who was present along with Mr. Cahill during the murder and assisted him in committing the crime. At trial there was evidence from a number of witnesses including Alice Fitzgerald, widow of the deceased, who gave evidence of hearing shots and observing the involvement of two men in the incident. Her evidence was that she was at home in Corbally on the morning of the murder, waiting for her husband to return from his work in Limerick City centre nightclub when she heard the jeep driven by her husband coming into the driveway of the house at 3.50 am. She heard four shots and the sound of glass breaking. She looked out of the sitting room window. She described seeing two men, one thinly built and the other fat and stocky. She describes the thin man as having "very shiny, shiny eyes, that his eyebrows met and were jet black". It is not entirely without significance that Mr. Campion has very striking eyebrows. The prosecution case was that Mr. Campion provided and drove a motor cycle that was used in the murder and then destroyed it by burning it.

4 4. Having pleaded guilty to the murder and having been sentenced, Mr. James Martin Cahill was a witness for the prosecution at the trial. Indeed, as already indicated, it is fair to say that he was a central, indeed the central, figure at trial and many of the grounds of appeal that had been argued on this hearing related to the role played by him.

5 5. At this stage it may be noted that there was no corroboration of the evidence that Mr. Cahill gave implicating Desmond Dundon and Anthony Kelly, and the jury, having been warned of the dangers of convicting on the uncorroborated evidence of an accomplice, acquitted them. In the case of John Dundon, while Mr. Cahill originally assigned a role in relation to the reconnaissance trip to him, in the course of the trial itself, the witness stated that he was no longer sure that Mr. John Dundon had actually been on the trip. In these circumstances, the trial judge directed a verdict of not guilty.

6 6. There is no doubt that James Martin Cahill was an unusual witness, indeed a highly unusual witness in a number of ways. Whereas, in many cases involving accomplice evidence, a witness will be contending that the role played by them was less than the role played by others, a fact sometimes reflected in a plea of guilty to a lesser charge, in this case Mr. Cahill was accepting that he had been the actual killer/gunman and his evidence was assigning subsidiary, though still significant, roles to others. There were other unusual features in his testimony, as will emerge, to the extent that at trial a great deal of time was devoted by the defence teams to attacking his reliability and indeed his competence to give evidence at trial When the jury came to consider their verdict, it was common case that there was no corroboration of the evidence that Mr. Cahill had given against Desmond Dundon and Anthony Kelly and the jury having been warned in strong terms about the dangers of acting on uncorroborated evidence duly acquitted both men. In contrast, in the case of Mr. Campion, the judge outlined to the jury various aspects of the evidence which in his view were capable of amounting to corroboration, pointing out that...