DPP v McManus (orse Dunbar)

CourtCourt of Criminal Appeal
JudgeMacken, J.
Judgment Date12 April 2011
Neutral Citation[2011] IECCA 32
Date12 April 2011

[2011] IECCA 32


Macken, J.

Budd, J.

O'Keeffe, J.

[Record No. 208/09]
DPP v McManus (orse Dunbar)


R v GALBRAITH 1981 1 WLR 1039 1981 2 AER 1060 1981 73 CAR 124

R v SHIPPEY 1988 CRIM LR 767

DPP v BARNWELL UNREP FLOOD 24.1.1997 1998/15/5319

DPP v MORRISSEY UNREP CCA 10.7.1998 1998/16/5863

R v BARKER 1977 65 CAR 287

DPP v M UNREP CCA 15.2.2001 2001/8/1990

DPP v CRONIN (NO 2) 2006 4 IR 329 2006 2 ILRM 401 2006/13/2579 2006 IESC 9


WHITE v IRELAND & ORS 1995 2 IR 268 1995/5/1708



BULA LTD & ORS v TARA MINES LTD & ORS (NO 6) 2000 4 IR 412 2000/3/925




Video-link - Adult witness - Whether sufficient evidence to go to jury - Point raised at trial on different basis - Whether entitled to raise on appeal - Whether overriding principles of justice require point to be considered - Inconsistencies in witness accounts of events matter for jury - Whether reading of transcript of evidence adequate - Whether trial judge's comments rendered trial unbalanced - Whether trial judge demonstrated bias - Nature of test for bias objective - Whether trial judge properly presented defence case - R v Barker (1977) 65 CAR 287 and People (DPP) v M [1994] 3 IR 306 considered; People (DPP) v Cronin [2004] 4 IR 329 applied; Kelly v Trinity College Dublin [2007] IESC 61 (Unrep, SC, 14/12/2007) followed - Criminal Evidence Act 1992 (No 12), s13 - Appeal refused (208/2009 - CCA - 12/4/2011) [2011] IECCA 32

People (DPP) v McManus (orse Dunbar)

Facts The applicant sought leave to appeal against conviction and sentence. The applicant had been convicted of manslaughter of a teenager. On behalf of the applicant it was contended that there were a number of infirmities that had occurred in the trial. It was submitted that owing to the inconsistencies in the evidence tendered and the unsupported nature of the case, the case ought to have been withdrawn from the jury. In addition objections were raised in relation to the court allowing a person who was older than 18 to give her evidence by way of video link. Issue was taken with the manner that trial judge had conducted the trial with the contention that certain comments made had rendered the trial process unbalanced. It was also alleged that the trial judge had failed to properly present the defence case to the jury.

Held by the Court of Criminal Appeal (Macken J delivering judgment) in dismissing the application. There had been more than adequate evidence adduced by the prosecution of the applicant's involvement in the events as to allow the challenged evidence to go to the jury. There was no evidence that there had been a real risk of an unfair trial with the decision of the trial judge to exercise his discretion and allow the witness who was older than 18 to give her evidence by way of video link. No material had been tendered which would suggest that the applicant did not receive a fair trial. There was no evidence that the trial judge had failed to present the defence case properly to the jury.

Reporter: R.F.


Judgment of the Court delivered on the 12th day of April, 2011 by Macken, J.


This is an application for leave to appeal against conviction and sentence.


The applicant was charged with the murder of a teenager called Melissa Mahon, the charge being that on a date unknown, but between the 14 th September, 2006 and the 30 th September, 2006, at premises in Sligo, the applicant had murdered Miss Mahon, contrary to common law and to s.4 of the Criminal Justice Act 1964. A lengthy trial took place, in April and May, 2009. The applicant was found not guilty of murder, but was convicted of manslaughter. The learned trial judge sentenced the applicant to imprisonment for life in respect of the manslaughter charge, and as mentioned above, the application for leave to appeal against sentence will be dealt with, if necessary, at the end of this judgment on the issue of his conviction.


By a Notice of application for leave to appeal dated the 17 th July, 2009, the applicant lodged this application seeking liberty to appeal on several grounds, numbering eleven in all. These are as follows:


1. The learned trial judge erred in fact and law in refusing the applicant's application that he direct the jury to acquit the applicant on the basis of the evidence presented by the respondent. Further, by reason of the inconsistencies, infirmities and unsupported nature of the prosecution case, the learned trial judge ought to have withdrawn the case from the jury.


2. The learned trial judge erred in failing to grant the application made on behalf of the applicant to withdraw the case from the jury at the end of the prosecution case for the reasons stated in trial.


3. The learned trial judge erred in not discharging the jury and by allowing them to continue their deliberations in the absence of a segment of videotaped evidence of Samantha Conroy that they had requested to have replayed during their deliberations.


4. The learned trial judge erred in fact and law in allowing Samantha Conroy, a person over 18 years, to give evidence by way of video link.


5. The conduct of the trial judge was such as to give rise to a perception of bias in the mind of an objective bystander. His conduct demonstrated bias and his comments in relation to the applicant were beyond such level and scale appropriate for a trial judge and rendered the process imbalanced.


6. The learned trial judge failed to adequately or properly present the defence case to the jury during the course of his charge to the jury and further, in the alternative, the learned trial judge failed to present the defence case in a manner which was fair to the applicant in all of the circumstances.


7. The conduct of the trial was manifestly unsatisfactory and not in due course of law.


8. The finding of the jury was perverse and went against the evidence as well as the weight of the evidence.


9. The evidence of the two principal witnesses for the prosecution, Samantha Conroy and Heidi McManus, was inherently unreliable and in the circumstances the learned trial judge erred in law in failing to give sufficient warning as to the dangers of convicting upon such testimony.


10. That in all the circumstances of the case the evidence was of such a nature as to be inherently weak and rendered the conviction of the applicant unsafe and unsatisfactory.


11. The applicant was not afforded his constitutional right to a fair trail due to the adverse and extensive media coverage of the case. The identity of the applicant and his relationship by blood to the prosecution witnesses, and the nature of their relationship to the deceased, gave rise to a disproportionate and prurient expression of interest in the details covered by the press.


Detailed written submissions, which were very helpful to the Court, were filed on behalf of the applicant and also for the respondent. The Court, was in a position to consider these in advance of the oral hearing, together with all the appropriate transcript evidence adduced during the course of the trial, all applications made and the learned trial judge's rulings.


At the commencement of the oral hearing, this Court indicated that several of the grounds could be dealt with together. Further, in relation to ground 11, based on an allegation of adverse media coverage, not only had no such issue been raised during the course of the trial, there was no evidence or material presented to this Court concerning any media coverage, adverse or otherwise, upon which this Court could make any findings whatsoever. Senior counsel for the applicant, Mr. Fogarty, accepted that no such material had been presented. In the circumstances, this Court ruled that it was not in a position to entertain any application pursuant to ground 11.

Background Facts

The background facts to this matter are fully set out in the evidence tendered in the Central Criminal Court, but for the purposes of understanding the arguments made by the parties it is necessary to refer to them briefly. Melissa Mahon was a young girl who was born in March, 1992. In September, 2006, at the time of her death, she was 14. The applicant was, at that time, 42 years of age. Miss Mahon was a troubled girl who had left home repeatedly in the period before her death. She came to know the applicant because she was a friend, and almost of the same age, as two of the applicant's daughters, Samantha and Heidi. They had another sister, Shirley, who also featured in the evidence in the course of the trial, but Miss Mahon was more friendly with the older two girls. Because of that friendship she spent quite an amount of time in the home of the applicant, which was near her own home in the same part of Sligo.


Miss Mahon went missing from her home on one of the above occasions, the 3 rd August, 2006, and was found by her mother in a shed at the back of the applicant's house. However, she went missing again the next day and was reported to the gardai as being missing, by her mother. She remained unavailable or missing for approximately three weeks. However, according to the evidence adduced in the course of the trial, Miss Mahon spent those three weeks in the applicant's home, during which time the applicant did not tell the social workers involved, or the gardai, of her whereabouts. When those parties came to the applicant's home looking for her, he instructed her to hide behind the...

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