DPP v Jason Murphy

• Jurisdiction: Ireland
• Judge: McKechnie J.
• Judgment Date: 18 January 2013
• Neutral Citation: [2013] IECCA 1
• Court: Court of Criminal Appeal
• Date: 18 January 2013

[2013] IECCA 1

THE COURT OF CRIMINAL APPEAL

McKECHNIE J.

O'KEEFFE J.

WHITE J.

C.C.A. No. 178/10

DPP v Murphy

BETWEEN

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

RESPONDENT

AND

JASON MURPHY

APPELLANT

OFFENCES AGAINST THE STATE ACT 1939 S30

CRIMINAL JUSTICE ACT 2006 S16

CRIMINAL JUSTICE ACT 2006 S16(2)(B)(II)

CRIMINAL JUSTICE ACT 2006 S16(2)(B)(III)

CRIMINAL JUSTICE ACT 2006 S16(4)(B)

DPP v O'BRIEN 2011 1 IR 273

STATE v TREANOR & ORS 1924 2 IR 193

PEOPLE (DPP) v SHAW 1982 IR 1

PEOPLE (AG) v GALVIN 1964 IR 325

PEOPLE (DPP) v CRONIN (NO.2) 2006 4 IR 329

CRIMINAL JUSTICE ACT 2006 S16(2)(C)(I)

CRIMINAL JUSTICE ACT 2006 S16(4)(B)

COURTS OF JUSTICE ACT 1924 S32

CRIMINAL PROCEDURE ACT 1993 S3

CRIMINAL PROCEDURE ACT 2010 S31

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S12

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S48

O'MALLEY THE CRIMINAL PROCESS 2009 PARA 23.09

THE SS GAIRLOCH ABERDEEN GLEN LINE STEAMSHIP COMPANY LTD v MACKEN 1899 2 IR 1

PEOPLE (DPP) v MADDEN 1977 IR 336

PEOPLE (DPP) v KELLY UNREP CCA 29.4.2005 2005/20/4148 2005 IECCA 50

HAY v O'GRADY 1992 1 IR 210

CRIMINAL JUSTICE ACT 2006 S16(1)

CRIMINAL JUSTICE ACT 2006 S16(6)

PEOPLE (AG) v TAYLOR 1974 IR 97

PEOPLE (DPP) v MCARDLE 2003 4 IR 186

CRIMINAL JUSTICE ACT 20062006 PART 3

CRIMINAL JUSTICE ACT 2006 S16(5)

CRIMINAL JUSTICE ACT 2006 S16(1)

CRIMINAL JUSTICE ACT 2006 S16(4)(A)

PEOPLE (DPP) v MCCANN 1998 4 IR 397

PEOPLE (DPP) v HOEY 1987 IR 637

CRIMINAL JUSTICE ACT 2006 S16(2)(B)

PEOPLE (DPP) v GILLIGAN 2006 1 IR 107

R v BASKERVILLE 1916 2 KB 658

PEOPLE (AG) v PHELAN 1950 1 FREWEN 98

PEOPLE (DPP) v C (P) 2002 2 IR 285

PEOPLE (DPP) v MEEHAN 2006 3 IR 468

PEOPLE (DPP) v MURPHY 2005 2 IR 125

MAY CRIMINAL EVIDENCE 2ED P330

PEOPLE (AG) v WILLIAMS 1940 IR 195

PEOPLE (DPP) v J (P) 2003 3 IR 550

PEOPLE v CRADDEN 1955 IR 130

COONAN & FOLEY THE JUDGE'S CHARGE IN CRIMINAL TRIALS 2008 PARA 33-24

COONAN & FOLEY THE JUDGE'S CHARGE IN CRIMINAL TRIALS 2008 PARA 33-25

COONAN & FOLEY THE JUDGE'S CHARGE IN CRIMINAL TRIALS 2008 PARA 33-26

PEOPLE (DPP) v GILLIGAN UNREP CCA 8.8.2003 2003/16/3514

PEOPLE (DPP) v GILLIGAN 2006 1 IR 107

PEOPLE (DPP) v K (M) 2005 3 IR 423

R v STEPHENSON 1947 NI 110

R v VALLANCE 1955 NZLR 811

R v B (KG) 1993 1 SCR 740

CRIMINAL LAW

Sentence

Rape - Indecent assault - Conviction - Sentencing principles - Proportionality - Personal circumstances - Totality principle - Aggravating factors - Age of victim - Number of offences - Breach of trust - Mitigating factors - No previous convictions - Rehabilitation - Work record - Exceptional family circumstances of defendant - Autistic children requiring constant care - Range in which offence located - Whether post-release supervision order required - Whether appropriate to impose suspended sentence - State (Healy) v Donohue [1976] IR 325; People (DPP) v D(W) [2007] IEHC 310, [2008] 1 IR 308; People (DPP) v H(P) [2007] IEHC 335, (Unrep, Charleton J, 15/10/2007) and People (DPP) v O'Callaghan [2010] IECCA 52, (Unrep, ex tempore, CCA, 21/6/2010) considered - Suspended sentences imposed (2011/0016CCDP - Sheehan J - 7/6/2013) [2013] IECCC 1

People (DPP) v C(N)

Facts The appellant had been convicted of a number of offences (including manslaughter) relating to an incident where the appellant allegedly set fire to a car which in turn set fire to a house and a person died in the resulting fire. It had been the prosecution”s case that the accused had admitted to the crime in front of third parties and in turn the prosecution”s case rested upon statements made by the third parties. The present appeal was brought primarily on the basis that the statements in question had not been given voluntarily but had been obtained by inducement and thus were admissible under the terms of the Criminal Justice Act, 2006. It was also contended that the trial judge had failed to charge the jury correctly in respect of the foreseeability element of the acts of the accused and the likelihood of risk or injury to another person. In addition grounds of appeal were raised as to whether an adequate corroboration warning was given and for the failure to discharge the jury owing to certain incidents.

Held by the Court of Criminal Appeal (McKechnie J. delivering judgment) in quashing the conviction and ordering a retrial: It was clear that there had been a ‘head-on’ conflict between the evidence of the Gardaí and that of the lay witnesses on the issue of threats. The trial judge had clearly made a decision in relation to the inducement issue based upon the credibility of the witnesses. Although videotape evidence had been available regarding interviews, the failure to view same did not constitute a sustainable ground of appeal. The judge”s description, given on the recharge, of what constituted corroboration at a general level failed to convey a number of key elements involved. The trial judge had failed to identify the inconsistencies in the subsequent witness testimonies other than saying very generally that the evidence given under oath had contradicted the evidence which he highlighted in summarising the case for the prosecution. As the charge to the jury had been inadequate the conviction could not be allowed to stand.

1 JUDGMENT of the Court of Criminal Appeal delivered by McKechnie J. on the 18th day of January, 2013.

The Charge and Conviction:

2 1. On the 5 ^th March, 2010, having pleaded not guilty on each, the Appellant was convicted on the following three counts, all relating to offences which occurred on the 27 ^th April, 2007: (i) the manslaughter of Mrs. Anne-Marie O'Neill by an 11-1 majority (count 1), (ii) arson of a Toyota Yaris motor car by unanimous verdict (count 2), and (iii) arson of a dwelling house at 202 Elm Park, Clonmel, Co. Tipperary, also by unanimous verdict (count 3). He was subsequently sentenced to 15 years, 12 years and 7 years imprisonment respectively, all to run concurrently and to commence from the 5 ^th March, 2010, the date upon which the appellant was first taken into custody following conviction.

General Background:

3 2. Mr. Murphy's first trial on these charges lasted only two days before the jury was discharged as one of its members was related by marriage to the appellant, though this relationship was unknown to either party when the jury was sworn in. The instant trial was then immediately commenced and lasted nine days before the learned trial judge, sitting with a different jury in Clonmel Circuit Criminal Court. It resulted in the conviction and sentence above described.

4 3. The prosecution's case against the appellant was that on the 27 ^th April, 2007 he, together with others, assembled in a field in Clonmel, Co. Tipperary, from which a number of them later moved to a friend's house, in a neighbouring estate. It was further alleged that, together with another person, he left that house at about 4 or 5 a.m., and set fire to a Toyota Yaris motor car at about 5 or 5:30 a.m.. This vehicle belonged to Mrs. Anne-Marie O'Neill and was parked about 2.5 feet from the house, in first gear with the handbrake engaged and centrally locked, in the family driveway at 202 Elm Park, Clonmel, Co. Tipperary; this driveway had a l-in-14 slope inwards from the public roadway towards the house. Due to the intensity of the fire some of the mechanisms melted, causing it to roll forward, so that the front of the blazing car ended up against the front of the dwelling house, in which Mrs. O'Neil and her husband, Mr. Pat O'Neil were upstairs, sleeping. The fire spread from the car to the house. Having smelt the smoke, Mr. O'Neill managed to escape by jumping out of the upstairs window, but his wife was unable to do likewise and tragically died in the fire.

5 4. Later that morning, the appellant went to another friend's house - that where Mr. John Paul Coady lived - and cleaned himself up, before returning to the house where he had been earlier, with his own jacket reportedly smelling of smoke and petrol. It is further alleged that he had exchanged jackets with Mr. Jonathan Dennehy. In the words of Counsel for the D.P.P., the "nub" of the case was that in a conversation with two of his friends - the said Mr. Dennehy and Ms. Jannette Coady - the appellant admitted that he had lit the fire, although in a separate exchange with Mr. John Paul Coady he had denied so doing. He further repeated this denial when later interviewed by the Gardaí.

6 5. In the absence of effectively any other and certainly of any more substantive evidence, the conviction rested exclusively on the statements of Ms. Janette Coady, Mr. Jonathan Dennehy, and to a much lesser extent Mr. John Paul Coady. The first two were arrested for withholding information under s. 30 of the Offences Against the State Act, 1939, as amended, were detained and interrogated for two days before release, after which, allegedly, they freely and voluntarily, returned to the relevant Garda stations and made the statements at issue each of which implicates the accused. The third person was similarly arrested, detained, interrogated and released and in the circumstances more fully particularised at para. 43 infra, he also went to a garda station and allegedly, freely and voluntarily, made the statement in question. The principle argument of the appeal centres on these statements.

7 6. At trial, each of these witnesses gave testimony that the statements were not given voluntarily but rather were obtained as the result of threats or inducements ("threats") from the interrogating Gardaí. A voir dire was held to determine the admissibility of the statements under s. 16 of the Criminal Justice Act, 2006, as amended ("the 2006 Act" or "the Act"), with the judge ultimately ruling that each statement was both...