DPP v Laide

• Jurisdiction: Ireland
• Judge: McCracken J.
• Judgment Date: 24 February 2005
• Neutral Citation: [2005] IECCA 24
• Court: Court of Criminal Appeal
• Docket Number: [C.C.A. Nos. 59 and 65
• Date: 24 February 2005

[2005] IECCA 24

COURT OF CRIMINAL APPEAL

McCracken J

Murphy J

Peart J

59&65/04

DPP v LAIDE & RYAN

Between:

The People at the Suit of the Director of Public Prosecutions

Respondent

AND

Dermot Laide and Desmond Ryan

Appellants

CRIMINAL JUSTICE PUBLIC ORDER ACT 1994 S15 (UK)

DPP v NEVIN 2003 3 IR 321

CRIMINAL JUSTICE ACT 1984 S4

BYRNE v GREY 1988 IR 31

R v IRC EXPARTE ROSSMINISTER LTD 1980 AC 952

DPP v DUNNE 1994 2 IR 537

DPP v KENNY 1990 2 IR 110

GARDA SIOCHANA ACT 1997 S6(2)

DPP v GAFFNEY 1987 IR 173

DPP v OWENS 1999 2 IR 16

AG, PEOPLE v HOGAN 1 FREWEN 360

CRIMINAL JUSTICE ACT 1984 S4(2)

DPP, PEOPLE v BUCK 2002 2 IR 268

CRIMINAL LAW: evidence

CRIMINAL LAW: search warrant

CRIMINAL LAW: trial

The first named appellant was convicted of manslaughter and he with the second named defendant were both convicted of violent disorder. The grounds of appeal against the manslaughter conviction were: (A) He did not get a fair trial (B) The jury's verdict was unsafe because: (i) the trial judge failed to ensure a fair trial in regard to the co-accuseds' statements (ii) adverse media coverage (iii) media coverage made in the course of a voir dire held in the absence of the jury (C) judge's charge to the jury on the issue of common design was defective.

There was considerable legal argument in the trail in the absence of the jury as to the desirability of editing witnesses' statements. Counsel for the first defendant requested that matters prejudicial to his client were not put to the jury. The trial judge agreed and references to Mr Laide were to be replaced by " Mr A". It became clear in the course of evidence that "Mr A" was the first named defendant. It was submitted that when this became obvious that the judge should have ordered separate trials.

The appeal grounds to the conviction of violent disorder by the second named defendant claimed that his detention pursuant to section 4 of the Criminal Justice Act, 1984 was unlawful and that statements made by him in a garda station were not admissible.

Held by The Court Of Criminal Appeal that there was a very real risk that statements opened to the court by co-defendants influenced the jury in reaching a verdict of manslaughter and accordingly the court ruled the manslaughter conviction was unsafe and should be set aside and directed a re-trial. These findings did not relate to the conviction of violent disorder. The court did not rule on the issue of adverse media coverage.

The court considered People (DPP) v Nevin [2003] 3 IR 321 in regard to judicial discretion where it stated that the exercise of judicial discretion would not be interfered with unless it was clearly wrongly exercised. The court was satisfied in this case that the warnings and directions given by the trail judge were adequate in regard to the charge of violent disorder.

In regard to the appeal of the second named defendant, the court noted that the trial judge had found that although that the search warrant of the accused's home was bad it did not necessarily follow that the arrest was unlawful. The court considered Byrne v Grey [1988] IR 31; DPP v Dunne [1994]2 IR 537 on this point and found that the onus of proof of establishing the lawfulness of the entry of a dwelling lies on the prosecution and ruled that the arrest of the second named defendant was unlawful. In regard to the exclusion of alleged admissions the court followed People (DPP) v Kenny [1990] 2 IR 110 in ruling against. Appeal of second named appellant allowed.

Reporter: BDD

1 24th day of February 2005 by McCracken J.

2 Dermot Laide and Desmond Ryan, together with two other accused, Andrew Frame and Sean Mackey, were jointly charged with two counts and were tried before a jury in a trial which lasted from 13 ^th January 2004 to 15 ^th March 2004 before the Dublin Circuit Criminal Court.

3 Count Number 1 charged them with "manslaughter contrary to common law", and the particulars of offence was stated as:-

"Andrew Frame, Dermot Laide, Sean Mackey and Desmond Ryan did on the 31 ^st day of August 2000 at Sussex Road in the County of the City of Dublin unlawfully kill one Brian Murphy."

4 The second count charged them with "violent disorder contrary to s.15 of the Criminal Justice ( Public Order) Act 1994". The particulars of offence were given as:-

"Andrew Frame, Dermot Laide, Sean Mackey, and Desmond Ryan, on the 31 ^st day of August 2000 present together, at Sussex Road, in the County of the City of Dublin, committed violent disorder in that you used, or threatened to use unlawful violence and such conduct, taken together, was such as would cause a person of reasonable firmness present at the said place to fear for his or another persons safety."

5 The manslaughter charge against Andrew Frame was withdrawn from the jury by the learned trial Judge and he was subsequently acquitted of violent disorder by the jury. The jury found Desmond Ryan not guilty of manslaughter but guilty of violent disorder. In the case of Sean Mackey, the jury disagreed on the charge of manslaughter and found him guilty of violent disorder and in the case of Dermot Laide the jury found him guilty of manslaughter and of violent disorder. From those findings, Dermot Laide and Desmond Ryan have appealed to this Court.

General Background

6 For the purpose of this judgment it is not necessary to consider the incident which gave rise to these prosecutions in any great detail, and indeed the evidence of some fifty witnesses was at times confusing and contradictory. It appears that as patrons were leaving Annabel's Nightclub in the Burlington Hotel in Dublin in the early hours of 31 ^st August 2000 a fight, or several fights, broke out, which probably were initiated by some name calling and jeering. In the course of the fight, one of the protagonists, Brian Murphy, was set upon, punched, pushed to the ground and kicked while he was on the ground and sadly he died in hospital shortly afterwards. The whole incident took place in a very short period of time, perhaps as little as fifteen or thirty seconds, and most of the witnesses had consumed considerable quantities of alcohol during the evening. At the time the four accused were 18 or 19 years of age, as was Brian Murphy. The gardaí took a large number of statements from various witnesses, including the four accused, and their statements figure largely in this appeal.

Grounds of Appeal of Dermot Laide

7 Dermot Laide puts forward three propositions as encapsulating all of his various grounds of appeal. They are:-

8 a A. The trial Judge failed to ensure that he received a fair trial, having regard to the outcome of the process to edit his co-accuseds' statements.

9 b B. The jury's verdict against him is unsafe in the light of:-

10 i I. Prejudicial media coverage prior to the trial.

11 ii II. Prejudicial media coverage during the trial.

12 iii III. Prejudicial media coverage of submissions made in the course of a voir dire held in the absence of the jury.

13 c C. The trial Judge's charge to the jury on the issue of common design was defective and apt to mislead.

The Editing of Statements

14 In the course of questioning by the gardaí each of the accused made statements which it was sought by the Respondent to put into evidence. As is frequently the case in circumstances such as this, some of the statements tended to implicate one or more of the co-accused. In particular, Sean Mackey said in the course of one of his statements:-

"I hit him in the head area knocking him backwards. I didn't see him fall to the ground from that blow, because at this stage Dermot Laide joined in the fight and I remember Dermot Laide throwing punches at him hitting Murphy in the head, while Murphy was falling back. Des Ryan also joined in but I can't remember him hitting Murphy. Murphy fell to the ground after the blows from Dermot Laide. Dermot Laide then kicked Murphy while he was on the ground, then I gave him one kick while he was on the ground and I am satisfied that it wasn't to his head. I stood off after that. I can't remember seeing Murphy getting anymore kicks but a general melee broke out at this stage and I remember Des Ryan, Dermot Laide, Andrew Frame being involved in the melee."

15 In a later statement he said:-

"I punched him with my closed fist in the head area knocking him backwards. I didn't see him fall to the ground from that blow because at this stage Dermot Laide had joined in the fight. I remember Dermot Laide throwing punches at him hitting Murphy on the head. He hit Murphy a number of times in the head while Murphy was falling back towards the ground. I would say that I saw Dermot Laide hit Brian Murphy about the head with four or five punches. They were hard punches, he is a big dude and he was giving it his all ... Brian Murphy fell to the ground after the blows from Dermot Laide. It looked to me that Dermot Laide was holding Brian Murphy with his left hand and punching him with his right hand, before Brian Murphy collapsed to the ground. Dermot Laide punched Brian Murphy a number of times while Brian Murphy was collapsing and falling back onto the ground and while Brian Murphy was on the ground. Dermot Laide then kicked Murphy while he was on the ground. I am not sure exactly where he kicked him."

16 Much of what was contained in these statements went well beyond the prosecution case being made against Dermot Laide. In particular, and this is central to this appeal, the prosecution did not allege or lead any evidence to establish that Dermot Laide kicked Brian Murphy while he was on the ground or that he kicked him in the head. On the contrary, the prosecution at all times very fairly said that they could not establish who...