DPP v Nadwodny

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Mahon
• Judgment Date: 18 December 2015
• Neutral Citation: [2015] IECA 307
• Docket Number: Record No. 28/2011
• Date: 18 December 2015

Sheehan J.

Mahon J.

Edwards J.

The People at the Suit of the Director of Public Prosecutions

Respondent

and

Alexsander Nadwodny

Appellant

[2015] IECA 307

Record No. 28/2011

THE COURT OF APPEAL

Crime & sentencing — Murder — Appeal on basis verdict was “perverse” in light of evidence

Facts: The appellant had been convicted on murder relating to a stabbing in Galway in 2009. The appellant sought to appeal the conviction, arguing that the verdict was contrary to the evidence before the jury as to his intention, or lack of intention, to harm the victim.

Held by Mahon J in an ex tempore judgment, that the appeal would be dismissed. There was no substance to the allegation that the jury verdict was perverse or contrary to the evidence before them. To find a verdict perverse required exceptional circumstances and a strong basis for holding so, and in the instant case this test was clearly not met. DPP v Tomkins [2012] IECCA 82 applied.

Mr. Justice Mahon

1 The appellant pleaded not guilty to a sole count of murder contrary to Common Law. His trial commenced before the Central Criminal Court on 17th January 2011, and on 27th January 2011 the appellant was convicted in respect of the count of murder by a unanimous verdict of the jury. The victim of the murder was Mr. Kieran Cunningham. The appellant was duly sentenced to life imprisonment.

2 This is an appeal against that conviction. There is a single ground of appeal, namely:-

That the verdict of the jury was perverse and contrary to the evidence in the case.

3 The case against the appellant was that on 2nd June 2009, the deceased, Mr. Kieran Cunningham, went out with his friends socialising in Galway city centre. At a certain stage ofthe evening, and indeed in the early hours of 3rd June 2009, the deceased left Karma Nightclub and walked up the lane towards Williamsgate ahead of his friends. At a certain stage he passed two people sitting on a kerb side outside an O2 shop. While Mr. Cunningham was standing on the other side of the road at Williamsgate, the man who was sitting on the kerb side stood up and walked across the road, holding what transpired to be a knife, and stabbed Mr. Cunningham three times. Mr. Cunningham was taken to Galway University Hospital where he died.

4 The prosecution alleged that the appellant was the man who stabbed Mr. Cunningham three times, and that at that time he intended to either kill Mr. Cunningham or cause him serious harm. During the course of his evidence, and during interviews with An Garda Síochána, the appellant accepted that he had stabbed Mr. Cunningham. It was accepted at the trial that the killing was an unlawful killing. What was in issue was the appellant's state of mind at the relevant time and the decision that had to be determined by the jury was whether the prosecution has satisfied it beyond reasonable doubt that there was an intention to kill or cause serious harm to Mr. Cunningham, and that the presumption in s. 4(2) of the Criminal Justice Act 1964 had not been rebutted, namely that the appellant had intended the natural and probable consequences of his actions.

5 A significant amount of CCTV footage was played to the jury including footage of the killing itself in which it is accepted that it showed the appellant approaching Mr. Cunningham and stabbing him with an object, having crossed the street over a distance of sixty eight feet.

6 The CCTV footage was played to the jury showing a man and a woman walking arm in arm at the top of Ballally Lane towards the entrance to the Karma nightclub, and then entering that premises at about 12.50 a.m. on 3rd June 2009. The man was wearing black shoes, light blue denim jeans and a navy t-shirt with the words ‘Sao Paolo 09’. The woman was wearing a navy top, three quarter length trousers with a handbag across her body. The same couple are then seen leaving the night club at 2.10 a.m. walking towards Eglinton Street in Galway. On the same CCTV footage Mr. Cunningham is observed leaving the night club at 2.11 a.m. approximately and is observed coming from the night club onto Ballally Lane wearing a red t-shirt and in the company of two men, in an agitated stated. Further CCTV footage showed Mr. McDermott, who was a friend of Mr. Cunningham, walking towards Mr. Cunningham and bending down and appearing to engage in conversation with somebody before re-appearing.

7 The jury was also shown CCTV footage of the man wearing light blue jeans observed in the company of the female crossing the road from the right hand side followed by the woman walking towards a jewellers shop at 2.15 a.m. It was the prosecution's contention that this was the moment when the appellant crossed the road and walked back towards Mr....