DPP v Cumberton

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 19 May 2020
• Neutral Citation: [2020] IECA 136
• Docket Number: Record No: 67/18
• Court: Court of Appeal (Ireland)
• Date: 19 May 2020

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

Respondent

V

EAMONN CUMBERTON

Appellant

[2020] IECA 136

Edwards J.

McCarthy J.

Kennedy J.

Record No: 67/18

THE COURT OF APPEAL

FOR ELECTRONIC DELIVERY

Conviction – Murder – Circumstantial evidence – Appellant seeking to appeal against conviction – Whether the appellant’s trial was unsatisfactory

Facts: The appellant, Mr Cumberton, was convicted of murder by the Special Criminal Court on the 29th of January, 2018, following a twenty-one day trial. He was sentenced on the same day to the mandatory penalty of imprisonment for life. The appellant appealed to the Court of Appeal against conviction. The prosecution case against the appellant was entirely circumstantial and many of the grounds of appeal related to how the alleged circumstantial evidence against the appellant was treated by the court of trial.

Held by the Court that the appellant’s trial was satisfactory and that the verdict was safe. The Court had not seen fit to uphold any of the grounds of appeal relied upon by the appellant.

The Court held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered by Mr Justice Edwards on the 19th of May 2020.

Introduction

1 The appellant was convicted of murder by the Special Criminal Court on the 29 ^th of January, 2018, following a twenty-one day trial. He was sentenced on the same day to the mandatory penalty of imprisonment for life.

2 The Notice of Appeal filed by the appellant initially indicated that grounds of appeal were to follow. Subsequently a document entitled “Grounds of Appeal” was filed with the Court of Appeal office, listing twenty-eight discrete grounds of appeal to which more detailed reference will be made later in this judgment. However, it is sufficient to state at this point that we were advised by counsel for the appellant at the commencement of the appeal hearing that it was not intended to proceed with grounds of appeal no's 1, 15, 21 and 27, respectively, as set out in that document, and we were grateful to receive that indication. We were further advised that while it was the intention of counsel for the appellant to speak to some of the remaining grounds in the course of the appeal hearing, he would not be speaking to all of them. That did not mean he was abandoning those not specifically addressed in oral argument but rather that he was simply relying on his written submissions in respect of those.

3 This is a case in which the prosecution case against the appellant was entirely circumstantial, and unsurprisingly many of the grounds of appeal related to how the alleged circumstantial evidence against the appellant was treated by the court of trial. This case provides an opportunity for this court to, inter alia, reiterate the position in Irish law with respect to how circumstantial evidence which is relied upon in a criminal trial is properly to be approached, and to clarify in some respects how the relevant rules should apply in practice.

The evidence on foot of which the appellant was convicted

4 On the 25 ^th of April, 2016, a Mr Michael Barr was shot dead whilst he was in the Sunset House, a licensed premises on Summerhill Parade in Dublin 1. The circumstances were that between approximately 8:30 PM and 9:30 PM on that date, two armed men wearing boiler suits and masks entered the premises. They then fired gunshots at Mr Barr's head and neck before running out of the premises. The subsequent post-mortem conducted by the Deputy State Pathologist, Dr Michael Curtis, indicated that Mr Barr received seven gunshot wounds, including five to the head; one to the shoulder and; one to the leg. The evidence of an advanced paramedic who attended at the scene was that the injuries sustained by Mr Barr were totally incompatible with life and that he died almost instantly at the scene.

5 A short time later, gardaí received reports from members of the public, including residents of Walsh Road in Dromcondra, Dublin 9, that the three occupants of a silver Audi A6 car had been observed attempting to set it alight on Walsh Road before running towards another vehicle, which was then used to flee the scene. The evidence was that gardaí arrived on Walsh Road a short time later and managed to extinguish the fire in the Audi A6 before it had properly taken hold and before the car was completely destroyed. A Garda Harkin had used a fire extinguisher from a patrol car to tackle the fire, and in the course of doing so had opened the front passenger door and discharged the fire extinguisher into the front passenger foot well and seat of the vehicle. Having discharged that fire extinguisher, Garda Harkin obtained a second fire extinguisher from another patrol car and also discharged that into the vehicle.

6 Gardaí subsequently conducted a search of the fire damaged car and recovered a number of items from it. These included a number of firearms (some of which were loaded and cocked); ammunition in magazines; some loose bullets; masks; balaclavas; boiler suits; a baseball cap and; a red petrol can amongst other items. Later during the investigation, the appellant was forensically linked to two items found in the vehicle, namely the baseball cap (designated SOD66) and a rubber mask (designated SOD68). No fingerprints were recovered from the vehicle.

7 The firearms recovered included two 9mm Makarov pistols with silencers attached (SOD33 and SOD34, respectively), and two 9mm Glock pistols (SOD35 and SOD36, respectively). In the case of SOD33 it had an empty magazine, and in the case of SOD34 the magazine contained six 9mm bullets. In the case of SOD35 the magazine contained eight 9mm bullets, and in the case of SOD36 the magazine contained seven 9mm bullets. In addition, there was a loose bullet found with each of the loaded weapons. There was evidence from a ballistics expert that the significance of the single loose bullets is that even when a pistol's magazine is full, an extra or spare round can be loaded and carried in the breech.

8 In addition, a black Nokia mobile phone, a live round of 9mm ammunition, and a green petrol container were found on the ground close to the vehicle. While gardaí were attempting to put out the fire, the black Nokia mobile phone rang, drawing the attention of a Garda to it. The Garda noted the caller's number as displayed on the mobile phone's screen. It subsequently rang two more times and again the number displayed on these occasions was noted. The number displayed was the same on two of the occasions that the phone rang, and on the third occasion it was the same save for the last digit which was a 6 on this occasion rather than a 7, indicating that calls had been received from phones with sequential telephone numbers.

9 A subsequent ballistics examination of the firearms found in the vehicle revealed that one of them had discharged the shots which had killed Mr Barr. Several spent rounds, or parts thereof, were recovered from the body of the deceased at post-mortem and were sent for ballistics examination. In addition, a number of discharged rounds, or parts thereof, were recovered at the scene of the shooting and these were also sent for ballistics examination. Five bullets, or parts thereof, recovered from Mr Barr's head were all found to have been discharged from SOD33. The ballistics expert concluded that SOD33 had been discharged eight times. SOD34 was found to have been discharged once.

10 The spent rounds were all found to be 9mm Makarov ammunition, which is a distinct calibre. These are brass jacketed bullets which have a lead core. The evidence was that upon impact with an unyielding surface the lead core and the jacket will separate. Lead cores were found in the body of the deceased and also at the scene. A number of brass jackets were also found at the scene. The single live bullet found on the ground adjacent to the silver Audi A6 on Walsh Road was 9mm Luger ammunition, which was not interchangeable with 9mm Makarov ammunition. However, 9mm Luger ammunition was suitable for use in the Glock pistols found in the Audi A6.

11 The court of trial heard that the investigation had revealed that on the day following the shooting of Mr Barr, the appellant and another male, who were subsequently to become suspects in connection with the shooting, had attempted to take a flight from Dublin airport to Bangkok in Thailand (via Dubai in the United Arab Emirates). The flight had been booked on the 26 ^th of April, 2016, i.e., that same day. Moreover, when the appellant and his associate went to check in for the flight, neither of them had any luggage with them. However, the appellant was unable to check in because it transpired that his passport had expired. The appellant's associate then proceeded without him, and the appellant deferred his travel plans to the 27 ^th of April, 2016, when there was another flight due to depart to Bangkok via Dubai. In the meantime, the appellant applied for, and was successful in obtaining, an emergency passport. In order to do this, he had to present himself to his local Garda station, which was Store Street Garda station, for the purpose of getting a passport application form signed and stamped by the Gardaí. He managed to do this without attracting undue notice and, having done so, obtained an emergency passport from the passport office. He then flew to Bangkok on the 27 ^th of April, 2016.

12 The appellant returned from Bangkok on the 25 ^th of May, 2016. In the meantime he had become a person of interest to An Garda Síochána in connection with the ongoing investigation into the murder of Mr Barr. Gardaí were also aware that there was an outstanding bench warrant for him in respect of an unrelated matter. The appellant was intercepted upon his arrival at Dublin Airport by members of the Drugs and Organised Crime Unit and he was arrested in execution of the said bench...