DPP v Collopy

• Jurisdiction: Ireland
• Judge: Mr. Justice Mahon
• Judgment Date: 05 May 2016
• Neutral Citation: [2016] IECA 149
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal No.: 200/2012
• Date: 05 May 2016

[2016] IECA 149

THE COURT OF APPEAL

Mahon J.

Appeal No.: 200/2012

Birmingham J.

Sheehan J.

Mahon J.

Between

The People at the Suit of the Director of Public Prosecutions

Respondent

- and -

Kenneth Collopy

Appellant

Conviction – Murder – Accomplice evidence – Appellant seeking to appeal against conviction – Whether the trial judge failed to adequately direct the jury in relation to accomplice evidence

Facts: The appellant, Mr Collopy, on the 8th December, 2009, shot a Mr Fitzgerald a number of times outside the mobile home of his uncle at Cloughnadromin, Ballysimon, Co. Limerick. Mr. Fitzgerald sustained two bullet wounds, one to his head, and one to his right thigh, and died soon afterwards. A number of shots were also fired at, and through, the mobile home. The appellant admitted the unlawful killing of the deceased, but denied murder. He contended that his intention was to fire shots at the mobile home in retaliation for an earlier incident relating to his mother?s home but not intending to shoot anyone, that it was dark at the time, and that he was unaware that the victim or anyone else had just emerged from the mobile home and was in its vicinity at the time of the attack. The appellant was convicted of murder on the 29th March, 2011 at the Central Criminal Court. He was sentenced to life imprisonment. He appealed to the Court of Appeal against that conviction on the grounds that: (i) the video recorded statement of a Mr Bussoli ought not to have been admitted into evidence; (ii) the decision to admit the said video recorded statement into evidence coupled with the fact that Mr Bussoli claimed a total lack of memory in relation to the date in question deprived the appellant of the opportunity to cross examine and challenge the content of the video recorded statement; (iii) the trial judge failed to adequately direct the jury in relation to accomplice evidence as it was contended on behalf of the appellant that Messrs Mulqueen and Bussoli were, potentially, accomplices of the appellant in that they accompanied the appellant on the evening in question and were with him when the appellant shot and killed Mr Fitzgerald; (iv) the trial judge failed to adequately or at all direct the jury in relation to the separate and distinct concepts of recklessness and intent; (v) the unanimous jury verdict of guilty was perverse.

Held by Mahon J that the trial judge was correct in his decision to admit into evidence the videotaped recording of the statement of Mr Bussoli, having decided, in accordance with the provision of the legislation, that the statement had been made voluntarily, and was?reliable. Mahon J held that the trial judge was entitled to take the view that neither Mr Mulqueen nor Mr Bussoli could properly or reasonably be viewed as accomplices; while an accomplice warning is appropriate in some cases it is not a warning that needs to be given, or indeed ought to be given in circumstances where there is little to suggest that the individual or individuals concerned could reasonably be viewed in that light. The Court was satisfied that the charge to the jury was comprehensive in relation to the concepts of recklessness and intent. Mahon J held that the facts as presented to the jury were well capable of providing the basis for a verdict of guilty of murder, and such a verdict was therefore not, in the Court?s view, perverse.

Mahon J held that the appeal should be dismissed.

Appeal dismissed.

Judgment of the Court delivered on 5th day of May 2016 by Mr. Justice Mahon

1 The appellant was convicted of murder on 29th March 2011 following a nine day trial at the Central Criminal Court. He was sentenced to life imprisonment. This appeal is against conviction.

2 At about 9.30 p.m. on the evening of 8th December 2009, Daniel Fitzgerald was shot a number of times outside the mobile home of his uncle, Paul Fitzgerald, at Cloughnadromin, Ballysimon, in Co. Limerick. On that evening, Mr. Fitzgerald visited his uncle and his family. As he was emerging from his uncle's mobile home, he turned around and informed his uncle that there was a car in the process of turning in the yard to the front of the mobile home. Mr. Fitzgerald then continued outside whereupon he was shot. Mr. Fitzgerald sustained two bullet wounds, one to his head, and one to his right thigh, and died soon afterwards. A number of shots were also fired at, and through, the mobile home.

3 The appellant admitted the unlawful killing of the deceased, but denied murder. Effectively, the appellant contended that his intention was to fire shots at the mobile home in retaliation for an earlier incident relating to his mother's home but not intending to shoot anyone, that it was dark at the time, and that he was unaware that the victim or anyone else had just emerged from the mobile home and was in its vicinity at the time of the attack.

4 Earlier on 8th December 2009, the appellant met with Jason O'Donoghue, Stephen Wallis, Christopher Mulqueen and David Bussoli. He asked Mr. O'Donoghue to drive him in his car to Croughnadromin, Ballysimon, Co. Limerick. Mr. O'Donoghue refused to do so because he was aware that the appellant had a gun on his person, and he abandoned his car along with Mr. Wallace, whereupon Mr. Bussoli, Mr. Mulqueen and the appellant proceeded to drive Mr. O'Donoghue's car to the location of the attack. The appellant discharged approximately seventeen bullets from a gun in the direction of the mobile home, two of which struck Mr. Fitzgerald.

5 Mr. Mulqueen and Mr. Bussoli made statements to the gardaí, and gave evidence at the trial. Mr. Mulqueen's evidence was that he had not seen the appellant discharge his weapon, as he was lying down in the back of the car. He said that it was his understanding that the appellant did not intend to murder anyone or cause harm to anybody, but rather to shoot at the mobile home. In his video recorded statement to the gardaí, Mr. Bussoli said that he was in the front passenger seat in the car, that when they drove into the Fitzgerald yard, a man emerged from the mobile home, whereupon a gun came across his face and a number of shots were discharged by the appellant. He said he saw the man fall to the ground.

6 When giving evidence at the trial, Mr. Bussoli claimed that he was unable to remember the events of 8th December 2009. An application was duly made pursuant to s. 16 of the Criminal Justice Act 2006 for the admission into evidence of the video recording of Mr. Bussoli making his statement to the gardaí on 14th December 2009, on the ground that his evidence to the court was materially inconsistent with his video recorded statement.

The grounds of appeal

7 The appellant appeals his conviction on a number of grounds, as summarised below:-

(i) The video recorded statement of Mr. Bussoli ought not to have been admitted into evidence.

(ii) The decision to admit the said video recorded statement of Mr. Bussoli into evidence coupled with the fact that Mr. Bussoli claimed a total lack of memory in relation to the date in question deprived the appellant of the opportunity to cross examine and challenge the content of the video recorded statement.

(iii) The learned trial judge failed to adequately direct the jury in relation to accomplice evidence. It is contended on behalf of the appellant that Messrs Mulqueen and Bussoli were, potentially, accomplices of the appellant in that they accompanied the appellant on the evening in question and were with him when the appellant shot and killed Mr. Fitzgerald. Both Messrs Mulqueen and Bussoli were arrested in the course of the murder investigation but were never charged with murder, or any other crime in connection with the incident.

(iv) The learned trial judge failed to adequately or at all direct the jury in relation to the separate and distinct concepts of recklessness and intent.

(v) The unanimous jury verdict of guilty was perverse.

Section 16 of the Criminal Justice Act 2006

8 Section 16 of the Criminal Justice Act 2006 provides as follows:-

?16(1) Where a person has been sent forward for trial for an arrestable offence, a statement relevant to the proceedings made by a witness (in this section referred to as ?the statement?) may, with the leave of the court, be admitted in accordance with this section as evidence of any fact mentioned in it if the witness, although available for cross-examination?

(a) refuses to give evidence,

(b) denies making the statement, or

(c) gives evidence which is materially inconsistent with it.

(2) The statement may be so admitted if:-

(a) the witness confirms, or it is proved, that he or she made it,

(b) the court is satisfied:-

(i) that direct oral evidence of the fact concerned would be admissible in the proceedings,

(ii) that it was made voluntarily, and

(iii) that it is reliable,

and

(a) either:-

(i) the statement was given on oath or affirmation or contains a statutory declaration by the witness to the effect that the statement is true to the best of his or her knowledge or belief, or

(ii) the court is otherwise satisfied that when the statement was made the witness understood the requirement to tell the truth.

(3) In deciding whether the statement is reliable, the court shall have regard to:-

(a) whether it was given on oath or affirmation or was video recorded, or

(b) if paragraph (a) does not apply in relation to the statement, whether by reason of the circumstances in which it was made, there is other sufficient evidence in support of its reliability,

and shall also have regard to:-

(i) any explanation by the witness for refusing to give evidence or for giving evidence which is inconsistent with the statement, or

(ii) where the witness denies making the statement, any evidence given in relation to the denial.

(4) The statement shall not be admitted in evidence under...