DPP v Dundon
| Jurisdiction | Ireland |
| Judge | Mr. Justice Birmingham |
| Judgment Date | 19 October 2017 |
| Neutral Citation | [2017] IECA 265 |
| Date | 19 October 2017 |
| Court | Court of Appeal (Ireland) |
| Docket Number | 165/14 166/14 |
[2017] IECA 265
THE COURT OF APPEAL
Birmingham J.
Birmingham J.
Mahon J.
Edwards J.
165/14
166/14
and
Conviction – Murder – Exclusion of evidence – Appellants seeking to appeal against convictions – Whether evidence ought to have been excluded
Facts: The appellants, Mr Dundon and Mr Killeen, on 15th July, 2014, were convicted by the Special Criminal Court of the offence of murder, the particulars of the offence being that they on 9th April, 2009, at Coin Castle Amusements, Roxboro Road Shopping Centre, Limerick, murdered Mr R Collins. The prosecution case against Mr Killeen was that he drove the gunman, Mr Dillon, to and from the murder scene. The case against Mr Dundon was that he had ordered the shooting from prison. In the case of Mr Killeen there were two aspects to the prosecution case. There was, firstly, evidence from a number of civilians, for the most part members of the McCarthy/Collins family, implicating Mr Killeen in the crime and then there was a considerable amount of circumstantial evidence, including forensic evidence. In the case of Mr Dundon, with the exception of evidence as to motive, the case depended almost entirely on the evidence of the McCarthy/Collins family witnesses. Mr Dundon appealed to the Court of Appeal against conviction on the grounds that the Special Criminal Court: (a) erred in regarding the evidence of Mr G Collins as merely “inconsistent”; (b) erred in treating the failure of the evidence of Mr G Collins as a neutral factor or as having no impact or effect on the evidence of Mr McCarthy; (c) failed to have any or any adequate regard to the possibility or likelihood of collusion as between the witnesses it considered to be unreliable and Mr McCarthy; (d) in failing to identify the reasons underlying the corroboration warning it administered to itself, rendered the warning meaningless or ineffectual; (e) failed to have any or any adequate regard to the clear inconsistencies in the evidence of Mr McCarthy; (f) erred in its approach to the testimony of Mr McCarthy as a “jailhouse informer”; (g) erred in its approach to the testimony of Mr McCarthy as a “supergrass witness”; (h) failed to grant a direction in circumstances where the evidence disclosed a profound failure of investigation by the Gardaí and at least one demonstrable instance of a deliberate attempt to suppress relevant evidence by a senior member of An Garda Síochána. Mr Killeen appealed to the Court of Appeal against conviction on the following grounds: (a) the trial court gave insufficient reasons for its various decisions, and, in particular for its decisions to convict; (b) the forensic evidence did not support the findings of the trial judge and were not in accordance with the law; (c) gang associates’ evidence was not subjected to careful scrutiny and should have been excluded from consideration or rejected as being incapable of belief; (d) the exclusion of evidence arising from the series of warrants was refused despite applications inter alia on the grounds that the evidence was procured in breach of constitutional rights, otherwise than in accordance with the law and where it was necessary to discourage the conduct adopted by the Gardaí; (e) the exclusion of the evidence arising from DNA in circumstances where the swab was allegedly taken by consent on a previous occasion when Mr Killeen was detained for another offence and where he was not informed that the evidence could be used for any other prosecution at any time in the future; (f) the exclusion of the evidence arising from the seizure of the appellant’s clothing was refused despite the fact that no statutory power was invoked and the appellant’s consent was not sought; (g) insufficient disclosure and excessive additional evidence throughout the trial rendered the trial unsatisfactory and unfair and the verdict unsafe.
Held by the Court that, having considered all of the arguments that were advanced on behalf of Mr Dundon and Mr Killeen, it was not persuaded to uphold any ground of appeal.
The Court held that it was not persuaded that the conviction of either appellant was unsafe, or that the trial of either appellant was unsatisfactory, and accordingly the Court dismissed both appeals.
Appeal dismissed.
On 15th July, 2014, following a lengthy trial, both appellants were convicted by the Special Criminal Court of the offence of murder. The particulars of the offence being that they on 9th April, 2009, at Coin Castle Amusements, Roxboro Road Shopping Centre, Limerick murdered Roy Collins. The prosecution had not alleged that either appellant was the actual gunman who fired the fatal shot on the occasion in question. Rather, the prosecution case against Nathan Killeen was that he drove the gunman, Mr. James Dillon, to and from the murder scene. Mr. Dillon pleaded guilty to the offence of murder at an earlier stage. Insofar as Wayne Dundon is concerned, the case against him was that he had ordered the shooting from prison. The evidence and final legal submissions in this case concluded on 30th June, 2014, and the Special Criminal Court took time to consider the matter. Then, on 15th July, the Court, in a judgment delivered by O'Malley J. convicted both men who had been on trial. In a situation, where the form and structure of the Special Criminal Court's judgment is an issue on the appeal and because the judgment helpfully summarises the evidence at trial, a copy of the judgment and ruling of the Special Criminal Court is attached to this judgment for ease of reference. Insofar as there are disputes about the recital of the evidence, and certainly it is accepted that in one respect at least, namely in what the judgment said about whether Mr. Killeen had previously left clothing for washing at a particular location, there was a misstatement of the evidence, that will, to the extent necessary, be dealt with in the body of this judgment.
As emerges from the judgment of the Special Criminal Court, the prosecution mounted two quite distinct cases. In the case of Mr. Killeen there were really two aspects to the prosecution case. There was, first of all, evidence from a number of civilians, for the most part members of the McCarthy/Collins family, implicating Mr. Killeen in the crime and then there was a considerable amount of circumstantial evidence, including forensic evidence. In the case of Mr. Wayne Dundon, with the exception of evidence as to motive, the case depended pretty much entirely on the evidence of the McCarthy/Collins family witnesses. Lest there be any confusion about this, the reference in this context to ‘Collins family witnesses’ is not to the family members of the deceased victim but rather to the extended Collins/McCarthy family. The background of the various civilian witnesses and their connection to each other is helpfully set out by the Special Criminal Court in the body of its judgment.
The prosecution opened its case against Wayne Dundon by reference to the evidence it expected would be given by Mr. Gareth Collins, sometimes known as ‘Gareth Keogh’ (hereinafter referred to as Gareth Collins save where the context requires otherwise), about being handed a phone on a date in March, 2009 by Nathan Killeen to facilitate a conversation between Mr. Collins and Wayne Dundon who was then in prison. This intended witness was expected to say that, in the course of this conversation, Mr. Wayne Dundon asked Mr. Gareth Collins to drive a car which would be used in connection with the shooting of Steve Collins and offered €20,000 for doing so. Mr. Collins was further expected to say that after the phone call finished, in the course of the further conversation he had with Mr. Nathan Killeen, Mr. Killeen said that they were going to ‘whack’ Mr. Stephen Collins in his public house. Mr. Stephen Collins is the father of the deceased and the public house adjoins Coin Castle Amusements. The prosecution indicated that it was expected that Mr. Collins would refer to further contact with Mr. Killeen about a week later when Mr. Killeen told him that a high-powered black Mercedes had been sourced for the job; and to further contact on the morning of the murder when Mr. Killeen and James Dillon appeared in the hallway of 7 Crecora Avenue, the home of Lisa Collins and Christopher McCarthy; to telephone contact on that occasion with Wayne Dundon, who would be alleged to have said ‘it is a simple job – yoke and all is up there, up and down in two minutes’. Mr. Collins would further give evidence that he refused to drive the car that was going to be involved in the incident, and that this was not the first time he had refused to do so.
Prosecution counsel also referred in his opening to the evidence that he expected would be given by Mr. Anthony ‘Noddy’ McCarthy. Counsel indicated that it was expected that Anthony ‘Noddy’ McCarthy would say that on the day of the murder of Roy Collins, that he was a prisoner in Wheatfield Prison, as was his cousin Wayne Dundon, and that Mr. Anthony ‘Noddy’ McCarthy would give evidence that he overheard Wayne Dundon speaking on a mobile phone, that Mr. Dundon was hyper and was shouting into the phone ‘you better do it for us, you never did nothing for our family, you and your mother will be sorry’. The Special Criminal Court was told Mr. Anthony ‘Noddy’ McCarthy would be giving evidence that Wayne Dundon hung up, that Mr. McCarthy enquired what was going on and that Wayne Dundon responded, ‘James Dillon, that's who, I told him to go down and do Mr. Collins or him and his mother will be sorry’ but then Mr. McCarthy said not to be talking like that to him, that Mr. Dillon was a cousin of theirs, to which Wayne Dundon...
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