DPP v Cawley & Da Silva

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 18 May 2015
• Neutral Citation: [2015] IECA 100
• Court: Court of Appeal (Ireland)
• Date: 18 May 2015

DPP v Cawley & Da Silva

The People at the Suit of the Director of Public Prosecutions

Respondent

v

John Paul Cawley and Wenio Rodrigues Da Silva

Appellants

[2015] IECA 100

Ryan J.

Finlay Geoghegan J.

Edwards J.

Record No: 134/2013

Record No. 139/2013

THE COURT OF APPEAL

Crime & sentencing - Murder - Appeals against conviction - Co-accused seeking to challenge convictions on multiple grounds

The appellants were convicted of the murder of a Brazilian national. They now appealed their convictions. The first appellant appealed on the grounds that the onus of proof had not been met to show that he intended the consequences of his actions in the death. The first appellant had pleaded guilty to manslaughter, but this plea was not accepted by the respondent. The second appellant appealed on the grounds that the trial judge had acted in a manner which rendered his conviction unsafe.

Edwards J, the other Justices concurring, stated that the first appellant”s conviction would be quashed and a re-trial ordered. The trial judge”s direction to the jury on the onus of proof was seriously flawed. In respect of the second appellant, the Court was satisfied his grounds of appeal were without merit and the appeal would be dismissed.

Introduction

1 1. This is a case in which the appellants, who were tried jointly as co-accused, were each convicted of the murder of Bruno Lemes De Souza between the 16 ^th and 17 ^th February, 2012, both dates inclusive, at Shronowen Bog, Tullamore, Listowel, in the County of Kerry, by unanimous verdicts of a jury on the 22 ^nd May, 2013 following a twelve day trial before the Central Criminal Court sitting in Tralee.

2 2. The first named appellant had pleaded not guilty to murder but guilty to manslaughter upon arraignment at the commencement of the trial. However this was not acceptable to the respondent. The second named appellant had pleaded not guilty simpliciter.

3 3. Following their convictions, the appellants were each sentenced to the mandatory sentence of imprisonment for life, to date from the 11 ^th March, 2013.

4 4. Both appellants now appeal against their convictions for murder.

The Evidence before the Jury

5 5. Sandra Cawley told the jury that she had been living at Number 2 Ardoghter, Baliyduff, Co. Kerry for approximately ten months together with the second-named appellant (Wenio), who is her ex-partner, her two children and, latterly, her two brothers, one of whom was the first named appellant (J.P.), and the other of whom was named Charlie. She had been in a relationship with Wenio, who is a Brazilian national, for about three and a half years. She recalled another Brazilian man, Bruno Da Silva (Bruno), visiting the house on the 16th February, 2012. He had telephoned looking for directions and she had given him Wenio's number. Wenio had earlier told her that "some guy" was coming down to sell a car to him.

6 6. At about 6 pm or 6.30 pm Wenio arrived home from work and Bruno followed him in. Wenio was driving an Audi and Bruno was driving a silver Opel Astra or a Vectra. Susan Cawley's two brothers and her two children were also present when they arrived. The car for sale was viewed and after about ten or fifteen minutes Wenio and Bruno came into the house. They had coffee and were talking in the kitchen and during this time they spoke in Portuguese. The witness retired to the sitting room. Both of her brothers were also there. Every now and then Wenio would come into the sitting room, have a brief conversation, and then return to the kitchen. On one of these occasions he told Susan Cawley that Bruno had said something about her voice "being sexy" and about her being "hot". She stated that when Wenio relayed this to her, he did not look his normal self. However, the witness stated that everything seemed to be "going grand" until at one point she asked Wenio, "Well, what's going on?" Wenio did not reply and went upstairs.

7 7. Susan Cawley then left the sitting room and went to the kitchen to get a glass of water and engaged Bruno in conversation. She stated that she had butterflies in her stomach while talking to him and conceded that this was on account of what Bruno had reportedly said to Wenio.

8 8. After a short time she retired again to the sitting room and there encountered Wenio who had come back downstairs. She asked Wenio, "What's he doing here?", to which Wenio replied "Oh I'm going to beat him up." Susan Cawley responded, "Why would you go beating up a man for that, any guy could say it?" Wenio returned to the kitchen. Shortly after that the witness heard what she characterises as a "thunt" sound, which she said was "a really like kind of heavy noise".

9 9. Upon hearing this noise Susan Cawley got up and went towards the kitchen. Her brother J.P. was in the kitchen at this point, as was Wenio. They were both in the vicinity of the sink and Wenio was holding a bar or a tool in his hand. As Susan Cawley entered the kitchen, she saw J.P. run into the laundry room. As he did so she saw Bruno lying on the floor of the laundry room "kind of half legs up and stuff and he had his hands over his head".

10 10. Bruno said "Call the Gardaí", and Wenio then ordered Susan Cawley to "Get out of here." The witness withdrew, and as she did so she heard two more "thunts" She ran upstairs to her children, and having done so was coming back down the stairs again when she met Wenio, her two brothers and Bruno coming up the stairs. Wenio was carrying the bar she had seen earlier and J.P. had a knife in his hand. Bruno's hands were tied up with rope, and Wenio was holding one end of the rope that had been used to bind him. She said Bruno looked terrified, and there was blood coming down his face.

11 11. The group going upstairs then went up to the attic, and Susan Cawley continued to the bottom of the stairs, and proceeded from there into the kitchen. As she was doing so she could see Wenio, J.P. and Bruno on the landing and the pull down stairs leading to the attic being opened. Sometime after that Wenio and J.P. came back downstairs. Susan Cawley then answered a knock at the front door and briefly went out to speak to the caller, who was another Brazilian gentleman named Ivan who was calling by prior arrangement concerning travel tickets. When she returned, she found that Wenio had changed his clothes and she observed both he and J.P. washing their hands. Wenio then went outside to speak with Ivan who had been asked to wait for him. Ivan was then invited in and was present in the house for a short period during which nothing untoward occurred and he then left.

12 12. After Ivan had left, J.P and Wenio went into the sitting room. Wenio then asked Susan Cawley for her phone. Then either Wenio or J.P. went upstairs and took two photographs of Bruno with the phone. The photographs show Bruno with his wrists still tied. Moreover his wrists were further tied to his legs.

13 13. Susan Cawley then told the jury that she recalled Bruno and her brother Charlie coming down from the stairs subsequently. At this point, Wenio and J.P. were in the hallway. Bruno asked if he could take off his jacket and Wenio let him take off his jacket. Bruno's legs were free but his hands were still tied. Wenio opened the rope on Bruno's wrists to allow him to take off his jacket. Bruno was also barefoot, and Wenio allowed him to put on his shoes. Then Wenio tied up Bruno's wrists again with the same rope.

14 14. Wenio then went out and drove his car (the Audi) to the front door of the house, and put Bruno into the back of the car. Susan Cawley was then ordered to "Get the kids and put them into the car." She and Charlie roused the children from their beds and placed them in the other car, i.e. the silver Opel Astra or Vectra that Bruno had arrived in. Wenio then got into the driver's seat of the other car (the Audi) and J.P. got into the back of it next to Bruno. The witness and her brother Charlie got into the silver Opel Astra or Vectra. Both cars then drove off. The time was between 11 pm and midnight.

15 15. After the cars had gone a short distance, the brother Charlie, who was driving the silver Opel Astra or Vectra, flashed the other car because he was unable to drive the car properly. Both cars stopped, J.P. got out of the Audi and took over the driving of the other car. At the same time Charlie transferred to the Audi.

16 16. The cars then drove through the village of Ballyduff and on to Lisselton. From there they proceeded along a road leading into a bog. The lead car then stopped, and Wenio got out and went back to the car behind and informed the occupants that he had run out of petrol. The witness stated that she and Wenio had passed by this place before some weeks previously. She could not recall why they had passed that way, but stated that Wenio had commented at the time that it was a nice place.

17 17. Having stated that he had run out of petrol Wenio returned to the Audi. J.P, then got out of the silver Opel Astra or Vectra and approached the Audi. Charlie then got out of the Audi and Wenio returned to the silver Opel Astra or Vectra. At this point Susan Cawley asked him "What's going on?" to which he replied "Don't worry."

18 18. Bruno was then removed from the Audi by Wenio. He was supported on one side by Wenio and on the other side by J.P. and the three of them proceeded down towards the bog. Bruno's hands were still tied but his legs were free. Bruno was struggling somewhat. The witness could not see anything after that. She remained in the silver car with her children.

19 19. After some time had passed Wenio and J.P. returned, but there was no sign of Bruno. Susan Cawley asked "Where is Bruno?", and Wenio replied "Don't worry, he's dead." The witness then said...