DPP v Dundon

 
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[2013] IESCC 1

THE SPECIAL CRIMINAL COURT

Kearns P.

O'Hagan J.

Hamill J.

[SCC 9/2012]
DPP v Dundon

BETWEEN:

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
PROSECUTOR

AND

JOHN DUNDON
ACCUSED

9/2012 - Kearns O'Hagan Hamill - SPC - 13/8/2013 - 2013 IESPC 1

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S64(2)

BANKERS BOOKS EVIDENCE ACT 1879 S7A

OFFENCES AGAINST THE STATE ACT 1939 PART 5

AG, PEOPLE v CARNEY & MULCAHY 1955 IR 324

DPP, PEOPLE v C 2001 3 IR 345 2001/7/1610

DPP v GILLIGAN 2006 1 IR 107 2005/20/3987 2005 IESC 78

DPP v MEEHAN 2006 3 IR 468 2006/19/4030 2006 IECCA 104

Criminal law- Criminal procedure- Special Criminal Court- Evidence- Reasonable doubt- Corroboration- Killing- Prosecution witnesses- Theft of car- Central role in planning and direction- Feelings of antipathy- Whether the case had been proved beyond all reasonable doubt

1

JUDGMENT of the Court delivered on the 13th day of August, 2013

2

John Dundon stands accused of the murder of Shane Geoghegan on the 9 th November, 2008 at Clonmore, Kilteragh, Dooradoyle, Limerick. The accused pleaded "not guilty" upon his arraignment before this Court on the 2 nd July, 2013.

3

Shane Geoghegan, a noted local rugby player, aged 28 years, was shot to death near his home in Clonmore in Dooradoyle shortly after 1.00am on 9 th November, 2008. It appears that the killing of Mr. Geoghegan was a case of mistaken identity in that the intended target was John "Pitchfork" McNamara, a man who lived four doors away from Mr. Geoghegan in Clonmore. Barry Doyle, a Dublin man who moved to Limerick in August 2008, was subsequently convicted in the Central Criminal Court of carrying out the murder of Shane Geoghegan. It is alleged by the prosecution in this case that John Dundon participated in the killing and that he ordered and directed the murder of John McNamara at a meeting in his house in Limerick on the evening of 7 th November, 2008.

PRELIMINARY MATTERS
4

This trial was scheduled to commence on 2 nd June, 2013. However an application was made by the former legal advisors of the accused to this Court on 15 th May, 2013 to postpone the trial having regard to the volume of disclosure delivered to the defence, consisting of both documents and CCTV footage, and the timing of the delivery of part of it. That application was considered and refused. Thereafter an application by way of judicial review was brought in the High Court to quash that decision. By ruling delivered on 31 st May, 3013, the High Court declined to grant the relief sought. From that decision an appeal was brought to the Supreme Court and, in an ex tempore judgment of that Court delivered by Denham C.J. on 25 th June, 2013, the Supreme Court ruled as follows:-

"Having heard submissions on behalf of the appellant and the notice party (being the Director of Public Prosecutions), the court requested an undertaking from Thomas O'Connell, S. C. on behalf of the notice party to disclose to the solicitor for the appellant the relevant documents by close of business on Thursday, 27 July, 2013. To indicate which documents, if any, of the 27,000 sheets supplied or of the CCTV camera (which have not already been disclosed in the book of evidence or in the April disclosure) were relevant, and the notice party to provide copies of the documents identified as relevant."

5

On the basis of that undertaking being given, the court would dismiss the appeal and the trial should proceed."

6

The trial was then scheduled to commence on Tuesday, 2 nd July, 2013. However, on the Wednesday of the preceding week, the registrar of the court was advised by Messrs. Madden & Finucane, solicitors for the accused, that he, Mr. Dundon, no longer wished them to act for him, nor did he want counsel to act for him, but instead he wished to conduct the proceedings on his own behalf. Those instructions were further confirmed in a follow-up letter the next day. On 2 nd July, 2013 counsel instructed by Messrs. Madden & Finucane appeared in court and again confirmed these instructions in the presence of the accused. The Court then invited the accused to confirm that these were his wishes and that what had been said on his behalf was accurate. Specifically he was asked:-

Q.

"Do you confirm the accuracy of what's being said? That you wish to sack your lawyers and do the case yourself?"

A.

"Yes"

7

His legal team were then permitted to come off record following which the accused was arraigned and pleaded not guilty. However, following his arraignment the accused said what he in fact wanted was a different legal team. Counsel for the prosecution indicated that they were ready to proceed and that all the requirements of the Supreme Court had been fully complied with, that is to say, that there had been full disclosure of anything that might be of any conceivable assistance or interest to the defence, and the same had been given not only to Messrs. Madden & Finucane, but as the prosecution was aware of Mr. Dundon's instructions that he wished to sack his lawyers, that material was also sent to Mr. Dundon.

8

The Court indicated that it would commence the trial later in the day after lunch. However, following the lunch break, the Court heard evidence from a prison officer that John Dundon had sustained a head injury when falling in his cell, a cell which he was at the time sharing with another prisoner, Nathan Killeen. It appeared that he was unconscious. The officer indicated that it was proposed to take Mr. Dundon to hospital for further medical checks. The Court deferred the commencement of the trial in those circumstances to the following morning, 3 rd July, to hear medical evidence of the nature of the injury and any other evidence which might be relevant in relation to it.

9

On 3 rd July, Mr. Brendan Nix, S.C. and Mr. Laurence Goucher, B.L., instructed by John Devane, solicitor, applied to come on record for Mr. Dundon, undertaking to expedite the preparation of the defence as quickly as possible. Counsel for the prosecution, Thomas O'Connell S.C, indicated that essentially the case was a fairly simple one, that his three main witnesses were under threat and that the prosecution was extremely anxious to start the case. However, the Court decided it would do no more at that stage than permit the opening of the case by Mr. O'Connell and would thereafter adjourn the case until the following week.

10

The Court then heard evidence from Dr. Peadar Gilligan, a consultant in emergency medicine from Beaumont Hospital. He had found two small wounds to the scalp at the back of John Dundon's head, one measuring approximately one centimetre and the other less than half a centimetre. On arrival he was not opening his eyes to commands or to stimuli and there was no movement of the limbs. However, when he lifted Mr. Dundon's hands above his head they dropped in an unusual manner for someone who might have been unconscious. His sugar levels were normal, his pulse rate was normal, his respiratory rate was normal, his cardiovascular examination was unremarkable and his reflexes were normal, although Dr. Gilligan stated he was unable to assess coordination and power as the patient was not co-operating with the assessment. His impression was one of psychogenic coma, meaning that no medical cause for any coma had been found. A CT scan of the brain was normal. An ECG was normal. Kidney function was normal, heart enzymes were normal, liver tests were normal. A toxicology screen revealed no evidence of any drugs in his system and he concluded it was safe to discharge the accused back to the care of Portlaoise Prison.

11

The wounds were superficial and required only a tiny amount of glue to close them. He found no medical reason why Mr. Dundon could not participate in the legal proceedings.

12

The accused was then re-arraigned and the case, confined as already indicated to the opening of the prosecution case, commenced. The trial was adjourned following the opening statement until 8 th July, 2013.

13

On 8 th July, 2013 Mr. O'Connell advised the Court that there was a significant medical problem affecting the main prosecution witness, April Collins. She was in hospital and likely to remain there for some time due to a medical condition. It should perhaps be stressed in the particular circumstances of this case, that there was no suggestion that the witness's medical condition was anything other than an entirely natural medical condition from which she had made a good recovery when the trial resumed on 23 rd July, 2013.

THE EVIDENCE
(1) EVIDENCE OF THE MURDER
14

Detective Garda Laura Bolger provided and proved various maps. The first of these was a general location map of Limerick City and surrounding areas. It contained a further location map "A" which showed the Clonmore Estate where Mr. Geoghegan had been shot, a site on the Mill Road in Rossbrien where a burnt out people carrier vehicle was later found, Mr. John Dundon's residence at 80 Hyde Road, and Block B of apartment blocks at Ballycummin Village, where a dark blue people carrier had been parked for some weeks prior to the murder. The map also indicated, on the north side of the river, the location of the Limerick Strand Hotel (formerly known as the Hilton Hotel). A further map showed the detail of the...

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