DPP v Jonathon Tuohy & Darren Wallace

• Jurisdiction: Ireland
• Judge: Macken, J.
• Judgment Date: 05 December 2006
• Neutral Citation: [2006] IECCA 153
• Docket Number: C.C.A. No. 187/04
• Court: Court of Criminal Appeal
• Date: 05 December 2006

[2006] IECCA 153

THE COURT OF CRIMINAL APPEAL

Macken, J.

Budd, J.

MacMenamin, J.

C.C.A. No. 187/04

C.C.A. No. 184/04

DPP v TUOHY & WALLACE

Between/

THE PEOPLE at the suit of THE DIRECTOR OF PUBLIC PROSECUTIONS

-and-

JONATHON TUOHY and DARREN WALLACE

Applicants

CRIMINAL LAW ACT 1997 S4

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S14

CRIMINAL JUSTICE ACT 1984 S4

CRIMINAL PROCEDURE ACT 1993 S10

R v LUCAS 1981 QB 720

DPP v CLEARY UNREP CCA 3.3.2006

CRIMINAL JUSTICE ACT 1964 S4

DPP v DOOHAN 2002 4 IR 463 2002 9 2022

DPP v ROCHE UNREP CCA 28.7.2004 2004/17/3887

DPP v HOURIGAN & O'DONOVAN UNREP CCA 19.3.2004 2004/15/3488

DPP v BYRNE, EX TEMPORE UNREP CCA 24.2.2003 2003/14/3004

CRIMINAL PROCEDURE ACT 1993 S3(1)(a)

DPP v BRADY UNREP CCA 5.5.2005

DPP v CLEARY UNREP CCA 3.3.2006

R v GREATREX 1998 CLR 733

Judgment of the Court delivered on the

Macken, J.

1 These applications are for leave to set aside the respective convictions of each applicant. Both applicants were charged and found guilty of certain offences after a trial before a jury at The Central Criminal Court sitting in Limerick on the 16th August 2004, the trial having commenced on the 14th July 2004. The offences for which each applicant was convicted were (a) murder contrary to common law and to Section 4 of the Criminal Law Act1997and (b) robbery contrary to Section 14 of the Criminal Justice (Theft and Fraud) Act 2001. Each applicant was found guilty by unanimous verdict of the jury, and each was sentenced to the mandatory sentence of life imprisonment in respect of murder, and to seven years in respect of robbery.

2 The evidence before the court was that in the early hours of 27th September, 2003, shortly after 4.30 a.m. a male caller, on an emergency 999 line to Henry Street Garda Station, reported a fight in Arthur's Quay Park in Limerick City. The park is enclosed by metal railings and has five entrances. In response to the emergency call, a garda patrol van was dispatched to the scene but was diverted in order to deal with another incident nearby. A second 999 call was received and as a result of that a garda patrol car was sent to the park. It was driven by a Garda Nally who was accompanied by a Garda Leahy from Henry Street Garda Station. Both Gardaí were present on the scene at 4.40 a.m., within two minutes of the second call which was logged at 4.38 a.m.

3 Garda Leahy testified that when they arrived, she observed a man in a grey top striking a man lying on the ground with a silver coloured bar. She saw a second man in a dark top crouched over the body. Garda Nally said in evidence that he saw a man in a grey top with a silver bar raised in one hand standing over a body on the ground and he saw a man in a dark top crouching over the body. Garda Nally said in evidence he "let out a roar" to stop them and said "stop, gardaí" and that both men turned around towards him. Both Gardaí noted the man in the dark top stand up and run a few steps and then slow down to a walk and start to leave the scene. This man was arrested by Garda Leahy and was identified as the accused, Darren Wallace. Garda Leahy testified that she observed the second man, the man in the grey hooded top, drop the silver bar. Both Gardaí testified that they heard the bar hit the ground and that the man with the grey hooded top took off at a quick run from the park. Garda Nally ran after him and pursued him until another colleague, Garda Coonahan, and a student garda, took up the chase. They caught up with the man. He was Jonathon Tuohy.

4 The man on the ground in the park was Noel Carmody. He was found by Garda Leahy and Garda Nally to be very severely injured with wounds to his head, which were bleeding profusely. He was in obvious distress, and was unable to remain still. His pockets were turned out and he was without shoes or socks, with the bottoms of his trousers pushed up to his calves. He was taken to the Midwestern Regional Hospital in Limerick where attempts to resuscitate him were not successful and he died of his injuries at 7.15 a.m. In evidence it was clearly established that the deceased was struck brutally about the head and body on multiple occasions. Indeed the evidence of injuries given by Dr. Bolster occupied more than 30 pages of transcript, and took more than one hour to describe. According to the evidence of Dr. Bolster, then acting Deputy State Pathologist, the cause of the death of Mr. Carmody was multiple lacerations of the scalp, with bruising and multiple fractures to the skull, and trauma to the underlying brain and multiple fractures of the ribs on the left side, with partial collapse of the left lung and a fracture of the left forearm. Mr. Carmody was a 42 year old qualified teacher of economics and maths, but was not employed as such at the time of his death. He had been in a number of restaurants and licensed premises in Limerick City during the day and into the evening before his death. The evidence of Dr. Bolster indicated that he had in his body at the time of death an amount of alcohol equivalent to drinking a little over a pint.

5 Evidence from CCTV footage of an area leading on to Arthur's Quay Park showed pictures of the applicants wearing clothing identical to what they were wearing when caught and arrested. In the footage, they are both also seen carrying what would appear to be long metal silver bars. They were seen walking away from Arthur's Quay Park at approximately 4.14 a.m., both carrying bars and running back in that direction at 4.18 a.m. This evidence was also supported or corroborated by a number of witnesses who were in the vicinity of the park at about the time Mr. Carmody was attacked.

6 Both applicants were taken to Henry Street Garda Station, and detained there under s.4 of the Criminal Justice Act,1984. They were interviewed during detention. When the appellant, Darren Wallace, was searched in Henry Street Garda Station he was found to have, inter alia, two particular items of property in his possession. These were a VISA receipt dated the 26th September 2003, for a food purchase, and a bus ticket. The evidence established that these items were the property of Noel Carmody. The silver bar was recovered at the scene covered in blood. The evidence established that it had Darren Wallace's fingerprints on it. An ATM bank card and a pair of spectacles were found close to the scene of the crime.

7 The case advanced by the prosecution was that the accused, Darren Wallace and Jonathon Tuohy, were engaged in a joint enterprise or had a common design, both as to the murder and the robbery of Mr. Carmody. The three eyewitnesses to the events, or to some of them, were Garda Nally, Garda Leahy and a Mr. Noel Deveraux. Amongst the other circumstantial witnesses relied upon by the prosecution were a Dr. Daly, a forensic scientist, in relation to bloodstains, and a Sergeant Burke who attended the crime scene in the near aftermath of the attack on Mr. Dermody.

8 The applicant, Jonathon Tuohy, while denying any involvement originally, admitted to beating and killing the deceased, his defence at the trial being one of provocation. In furtherance of that defence he called evidence detailing inter alia, a long standing medical condition, Attention Deficit Hyperactivity Disorder ("ADHD") from which he suffered. Professor Maurice Fitzgerald gave evidence in relation to the nature of ADHD as well as its characteristics and impairments. He also gave evidence that Jonathon Tuohy's condition was regulated by medication, and that this was a condition that made persons with that condition prone to impulsive acts, without at the time taking into consideration their impact.

9 Jonathon Tuohy, on the evening in question, had mixed a considerable amount of drink with a high quantity of Ritalin, a medication prescribed for the treatment of ADHD, together with ecstasy tablets. His defence at the trial was that, while in that condition, he went into Arthur's Quay Park, Limerick with Darren Wallace where he came upon the late Mr. Carmody and Mr. Deveraux in the bushes engaged in a sex act. In evidence, Jonathon Tuohy said that in coming upon the scene Mr. Deveraux took flight, leaving Mr. Carmody whereupon he alleged that Mr. Carmody asked him "do you want one as well" or words to that effect. He said he was enraged and embarrassed by the suggestion, and recalled striking the deceased with an iron bar which he had in his hand across the head once, but he accepted that he may have struck him several times as, he contended, he blacked out. Jonathon Tuohy in evidence said that his co-accused Darren Wallace stopped him beating Mr. Carmody by taking the bar from him at which stage he, Jonathon Tuohy, walked some distance from the scene of the beating to nearby steps whereupon he removed his "hoodie" top and paused for a while. He claimed he then returned to find Darren Wallace with the body and it was at that point that two members of An Garda Síochána, Garda Nally and Garda Leahy came to the scene and Jonathon Tuohy fled.

10 Darren Wallace said in evidence he met Jonathon Tuohy on the evening in question, but had not socialised with him previously. Jonathon Tuohy had taken a long metal bar from a skip which he had broken in two, and they had gone to the park and they were "messing" with each other. He agreed they left the park and returned again a short time later, both with the metal bars (which coincided with the CCTV evidence from the area outside the park). When they were returning, he said, after hitting Tuohy once, and Tuohy hitting him once, he, Wallace threw away his iron bar down steps at a pier. It would not appear that there is any CCTV video evidence in respect of that event. He says they then saw two men, one the deceased, in the...