DPP v John Brett, [2011] IECCA 12 (2011)

Docket Number:299/08
Judge:Murray C.J.

UNAPPROVEDTHE COURT OF CRIMINAL APPEAL299/08 & 4/09Murray C.J. Budd J.McMahon J.BETWEENTHE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONSPROSECUTOR/RESPONDENT-v-JOHN PAUL BRETTAPPLICANT/APPELLANTJUDGMENT of the Court delivered by Murray C.J. on the 7th day of April 2011In this matter the applicant applies for leave to appeal against his conviction, after trial by jury, for the offence of murder namely that on the 25th August 2007 at Ballinure Road, Mahon, in the County of Cork, he murdered Brian McKee.The applicant was jointly tried with his co-accused Jason Quinlan before the Central Criminal Court sitting in Cork. Both accused were convicted of the offence by a majority verdict of the jury.Grounds of AppealThe grounds of appeal as argued at the hearing of the appeal were as follows:The learned trial judge erred in his decision to permit counsel for the second named accused to elicit evidence from his witness, Rebecca Delaney, to the effect that she saw the first named accused carrying a knife on the evening before the fatal stabbing of Brian McKee in the early hours of 25th August 2008.The learned trial judge erred in failing to discharge the jury after the said Rebecca Delaney gave evidence that she saw the first named accused carrying a knife.The learned trial judge erred in refusing an application made during the trial, on 6th December 2006 for separate trials.These grounds of appeal relate to the evidence given by Ms Rebecca Delaney as a witness for the defence called on behalf of the co-accused, Jason Quinlan. She was the girlfriend of Jason Quinlan and objection was taken to the admissibility of certain aspects of her evidence which is referred to in greater detail later in this judgment.There were other grounds of appeal lodged but these, which related to the manner in which the case was let go to the jury, were not argued at the appeal hearing. In any event no requisition concerning these matters was made at the time in the trial.Background FactsThe deceased victim, Mr. Brian McKee, died as a result of multiple stab wounds which the prosecution claimed, on the basis of the evidence tendered at the trial, were inflicted in the course of an assault on the deceased by the applicant and his co-accused Jason Quinlan. The prosecution case at the trial was that the applicant and his co-accused were engaged in a joint enterprise to assault the deceased as a consequence of which they were both guilty of murder.At this point it is convenient to recall the evidence of Dr. Michael Curtis, the Deputy State Pathologist, concerning his findings at the post mortem examination of the deceased as summarised by the trial judge in his charge. The pathologist found that the deceased had a black eye on the right hand side and bruising to the lower limb which may have been caused by punches. There were a number of superficial penetrating wounds to the upper chest on the left side which may have been caused by a broken bottle. A shard of glass was obtained from the soft tissue of the chest wall. He had sustained a number of stab wounds to the chest on the left side, one of them being on the back. Only one of these penetrated the chest cavity. This penetrated the upper lobe of the left lung; there was no defence type injuries on the body. In the course of his evidence the pathologist stated “there was cocaine in the blood and in my opinion the damaged knife and blade produced may have caused the wound other than those on the front of the chest, which were caused by glass. I designated the cause of death as being multiple stab wounds.”Earlier EventsIt is only necessary to refer to certain salient aspects of the events leading up to the assault in which the deceased died for the purposes of placing the issues raised by the applicant in this appeal in context. Not long after midnight of 24th August 2007 the deceased, Brian McKee and a friend Pat Bradley returned to the house of another friend and neighbour, Raymond Keating, at St. Michael’s Lawn, Mahon, Cork. In the meantime a large number of young people from the same area had been at a beach party in Myrtleville, Co. Cork. It was apparent from evidence at the trial, that a significant amount of drugs and alcohol were taken at this beach party. Around 4 a.m. on the morning of the 25th August 2007 a group of these young people returned from the beach party to Mahon and congregated near the green on St. Michael’s Lawn. Included in this group were Ms Ciara Delaney, Jason Quinlan, the co-accused of the applicant, and Rebecca Delaney. Ciara Delaney had for a significant time been the girlfriend of the deceased Brian McKee but they had been separated about six months earlier. They were rearing two children together and Ms Delaney had custody of them. The relationship between the two parents was fractious and was subject to rows breaking out between them which occurred during the course of the events leading up to Mr. McKee’s death. The Rebecca Delaney referred to above is a sister of Ciara Delaney and is the girlfriend of Jason Quinlan, the co-accused.This group on the green at Mahon was subsequently joined by the applicant, John Brett, and his girlfriend, Sinead Hogan and others. Most of those present had grown up in Mahon and knew one another well. This was not the position of the applicant but he had an acquaintance with his co-accused, Jason Quinlan. The area near the green in Mahon where they were mostly congregated was known as “the bollards” at the mouth of a pedestrian lane.At one point Ciara Delaney, and another person, Amanda Collins, left the group and went to Raymond Keating’s house where Brian McKee was at the time. An intense row broke out between Ciara Delaney and Brian McKee. The couple were screaming at each other and provocative insults were exchanged. Brian McKee spat in the face of Ciara Delaney. Two persons asleep in the house were woken up, Mr. Pat Bradley, who had passed out from drink on the couch in the kitchen, and Charlene Murphy who was asleep upstairs. Ms Murphy came downstairs and asked the rowing couple to leave. Meanwhile Rebecca Delaney, having heard her sister Ciara screaming, came across from “the bollards” towards the Keating house to join her. Other members of the group were to follow her including the applicant, John Brett, his girlfriend Sinead Hogan, and others.Rebecca Delaney intervened in the shouting and screaming between Brian McKee and her sister Ciara and there was some shift in the focus of the fight between her and Brian McKee. There was evidence that...

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