DPP v Kinsella
| Jurisdiction | Ireland |
| Judge | Birmingham P. |
| Judgment Date | 23 October 2018 |
| Neutral Citation | [2018] IECA 332 |
| Court | Court of Appeal (Ireland) |
| Docket Number | [203/12] |
| Date | 23 October 2018 |
[2018] IECA 332
THE COURT OF APPEAL
Birmingham J.
Birmingham J.
Edwards J.
McCarthy J.
[203/12]
Conviction – Murder – Corroboration – Appellant seeking to appeal against conviction – Whether the trial judge erred in failing to adequately charge the jury on corroboration
Facts: The appellant, Mr W Kinsella, on 21st May 2012, was found guilty of the murder of Mr Essalhi on 6th January 2011 in the Tyrrelstown area of Dublin. An important feature of the case was the fact that Mr W Kinsella's nephew, Mr M Kinsella, was also charged with the murder, but was tried separately. The appellant came before the Court of Appeal seeking to challenge his conviction. A key aspect of the appeal was the proposition put forward by the appellant that the civilian witnesses engaged in a form of collusion with respect to their evidence for the purposes of shielding Mr M Kinsella from responsibility. The appellant submitted that the trial judge erred in: (i) failing to adequately charge the jury on corroboration; (ii) failing to recharge the jury on the creditworthiness of the civilian witnesses; and (iii) refusing to reveal the identity of the confidential informant in circumstances where the appellant's innocence was at stake.
Held by the Court that it had not been persuaded to uphold any of the grounds of appeal that had been argued and advanced in the written and oral submissions. The overall sense that the Court had was that this was particularly strong case from the prosecution perspective and that no doubt had been raised about the fairness of the trial or the safety of the verdict.
The Court held that it would dismiss the appeal.
Appeal dismissed.
On 21st May 2012, the appellant, Wayne Kinsella, was found guilty of the murder of Adil Essalhi on 6th January 2011 in the Tyrrelstown area of Dublin. An important feature of the case is the fact that Wayne Kinsella's nephew, Michael Kinsella, was also charged with the murder, but was tried separately. The appellant now comes before this Court seeking to challenge his conviction. A key aspect of this appeal is the proposition put forward by the appellant that the civilian witnesses engaged in a form of collusion with respect to their evidence for the purposes of shielding Michael Kinsella from responsibility.
On the date the murder took place, Wayne Kinsella had been socialising with Adil Essalhi and Martina Deegan. They spent a number of hours in a public house in Dublin city centre during which time alcohol was consumed. At around 4pm, the party travelled to an address at Apartment 14, Tyrrelstown Plaza, Dublin 15 being the residence of Martina Deegan. As the evening progressed, and more alcohol consumed, a number of individuals joined them at the apartment, including the co-accused, Michael Kinsella. Upon arriving at the residence and encountering the deceased, Michael Kinsella formed the impression, misapprehension it may be said, that Adil Essalhi had been involved in the murder of one Lee Kinsella: the appellant's brother.
At 8pm, Wayne Kinsella, Michael Kinsella, and Adil Essalhi left the apartment together, apparently on the pretext of attending another party. The deceased was taken to a nearby field, attacked with a knife/machete, killed, and his body burned. The appellant admits to having been present at the time of the murder, but denies taking part during or after the fact.
Adil Essalhi's body was later found with the assistance of information provided by the appellant. Garda Alan O'Toole and Garda Sheelagh Sheehan gave evidence that on 12th January 2011 they approached Wayne Kinsella whilst on patrol in connection with the disappearance of another person, Jason O'Dea. The appellant directed them to a field behind "The Thirsty Bull" pub and offered to take them to the location of the body.
On 13th January 2011, Wayne Kinsella met with Gardaí and provided them with further information. Detective Garda Peter Collins gave evidence that they had not been aware that Adil Essalhi was missing at the time and that the appellant had indicated that the body in question belonged to Jason O'Dea or someone with a similar sounding name. A staged arrest took place for the purpose of protecting Wayne Kinsella's girlfriend: Natasha Carey, and to disguise the fact that he was assisting Gardaí in their inquiries. While in Garda custody, he led them to the field where the body of Adil Essalhi was and pointed to where a knife, used in the attack, had been buried. The appellant was arrested and charged for the murder of Adil Essalhi on 15th January 2011 at Blanchardstown Garda Station.
In a voluntary interview, whilst in Garda custody, Wayne Kinsella stated that he had information as to the whereabouts of the deceased's jumper as well as the murder weapon that he was willing to share. He said to the interviewing members of An Garda Síochana, 'I want you to put it on record as well that I did not kill anybody'. This assertion was repeated when Gardaí attended a football pitch in Tyrrelstown at the direction and suggestion of the appellant. He stated 'I was there but I didn't do anything. I want a separate trial from the other fellow'.
CCTV footage was central to the prosecution's case and confirmed the general narrative of how the day progressed and the movements of key individuals. Footage taken from near the apartment complex in Tyrrelstown was admitted into evidence which showed individuals said to be the appellant, co-accused, and deceased leaving together and heading in the direction of the field in which the body of Adil Essalhi was discovered. It also captured individuals identified as Wayne Kinsella and Michael Kinsella returning alone without Mr. Essalhi just over an hour later.
On Day 6 of the trial, 16th May 2012, Garda Olive Crowe gave evidence that on 10th January 2011, she had received confidential information from a person known to her for some time. This person stated that a murder had taken place in Blanchardstown the previous week. The informant had disclosed that the deceased had met Wayne Kinsella when they had been collecting social welfare and drank together for the day. They further indicated that the appellant and Michael Kinsella had convinced themselves that Adil Essalhai had been involved in the murder of Lee Kinsella and this led to his murder at their hands. This information was provided to Detective Inspector Colm Fox. Garda Crowe emphasised that she believed the provider of this information would be in danger should their identity be revealed.
Wayne Kinsella has advanced a number of Grounds of Appeal which may be summarised and distilled as follows:
(i) the trial judge erred in failing to adequately charge the jury on corroboration;
(ii) the trial judge erred in failing to recharge the jury on the creditworthiness of the civilian witnesses;
(iii) the trial judge erred in refusing to reveal the identity of the confidential informant in circumstances where the appellant's innocence was at stake.
The procedural history of this appeal is complicated somewhat by a number of changes in Wayne Kinsella's legal team and interlocutory motions to adduce further evidence in the form of extracts from the transcripts of the first and second trials of Michael Kinsella. The initial motion was filed by the appellant's previous legal team on 10th June 2015, and concerned testimony by Martina Deegan at Michael Kinsella's first trial for the murder of Adil Essalhai which the appellant says saw the witness making admissions to colluding with other prosecution witnesses to the detriment of Wayne Kinsella. This motion was subsequently adopted by the current legal team and has been supplemented with a further application dated 5th March 2018. This latest motion seeks the admission of similar extracts from the evidence of Martina Deegan at Michael Kinsella's second trial along with other extracts from the evidence of Natasha Carey at his first trial. It is claimed that this evidence tends to prove the claim that there was an agreement to falsely implicate the appellant so as to protect Michael Kinsella from criminal responsibility.
When the Court sat on Day 8 of the trial, 18th May 2012, in order for the judge to deliver his charge, closing speeches having been completed the previous day, Senior Counsel for the defence rose and said that he and prosecution counsel had a discussion and agreed that it would be appropriate that in regard to some witnesses, an accomplice warning would be given. There followed a discussion involving both counsel and the trial judge. The judge asked whether there was an obligation on him to point to areas where the jury could find corroboration and was told by prosecution counsel that he thought that there was. The judge asked 'and what areas, then, ought I point to?' Prosecution counsel responded:
'[s]ome independent pieces of evidence, for instance, in my submission, possibly the statement made by the accused to the Gardaí; the business about if you find the killer, who he named dead, burnt and bleached, it corroborates various elements.'
He said it was capable of corroborating, for instance, the statement of motive which the witnesses gave that the deceased was being taken out in the context of being involved in the killing of the brother of the appellant.
Prosecution counsel referred also to the use of bleach on the knife. After some further discussion, it was agreed that the commencement of the charge be deferred and that the Court would rise for a few minutes to allow counsel to consider the corroboration issue further.
When the Court sat...
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DPP v Kinsella
...MADE ON 8 th February, 2019 AND WAS IN TIME. 1 This determination concerns a decision of the Court of Appeal made on 23 October 2018; [2018] IECA 332. The applicant Wayne Kinsella was found guilty on 21 May 2012 by a jury of the murder of Adil Essalhi on 6 January 2011 in the Tyrrelstown ar......