DPP -v- Timothy Kavanagh,  IECCA 29 (2009)
|Party Name:||DPP, Timothy Kavanagh|
THE COURT OF CRIMINAL APPEAL[2008 No. 126]Finnegan J.
BETWEENTHE PEOPLE (AT THE SUIT OF THE DIRECTOR OF
Judgment of the Court delivered the 2nd day of April, 2009 by Mr. Justice Charleton
On the eighteenth day of the trial before His Honour Judge Rory McCabe, the accused was convicted on a single count of manslaughter. The particulars set out in the indictment alleged that on 11th July, 2006 at 55 Rathsallagh, Shankill in the County of Dublin, he unlawfully killed Johann Verhoeven by the use of a knife. Against this conviction, the appellant seeks leave to appeal and has raised six grounds of appeal. These will be dealt with in the order in which they were argued before the court.
Time of Death
Johann Verhoeven was last seen alive by anyone other than the appellant on 10th July, 2006. He then disappeared. His body was found by a passer-by, who was alerted by a peculiar smell, near Roundwood in County Wicklow on 2nd September, 2006. The remains of the deceased had badly decomposed by that stage. He had been lying in wet ground and his corpse had lost many internal organs, one arm was detached and the body was only partially clothed. Fifty-three days had passed since the date when, it was alleged, the appellant had unlawfully killed him. It was submitted on his behalf that the trial judge erred in law in failing to withdraw the case from the jury because of inconsistent evidence as to the date of death.
Evidence as to the time of death was led before the jury from Dr. John Derek Manlove, a forensic scientist from Oxfordshire in England. His expertise is in entomology and, in addition, as a forensic scientist, he commonly deals with human DNA, body fluids and blood pattern analysis. He travelled to Ireland on the same day that the corpse was discovered. He attempted to fix the time of death on the basis of the insect activity, principally Calliphoridae. These insects, commonly known as blow flies, lay their eggs in decomposing material. He estimated a time of death based upon his findings as to the activities of these and other kinds of insects. His conclusion was that insect activity was in keeping with Johann Verhoeven having been dead since 11th July, 2006. He was challenged as to the parameters of that calculation. He understood that his task was to examine whether a target date, namely the date on the indictment, was a possible date of death. He stated that it was difficult to be precise as to the pattern of invasion of a dead body by insects. His view was that decomposition was "a complex thing" which did not always "follow exactly the same path". His opinion also was that temperature was a key variable which lessened the possibility of exactitude. As it was quite a cool site, the possible interpretations of an estimate as to the time of death ranged between forty and fifty days.
Given the range of variables apparent from Dr. Manlove's evidence, and clearly indicated by him to be no more than estimates, it is clear that what are argued to be his concessions should not be seen as such. Rather, as a careful expert, he was content to engage with the questions posed by counsel. He was adamant that precise science was not possible in the circumstances of discovery of the deceased's corpse. There was nothing about his evidence that rendered it even probable that this was a more recent death than that alleged in the indictment. As such, any argument as to the correctness of his approach, or as to any doubt there might be as to a fundamental proof offered by the prosecution, was properly to be argued out before the jury.
It was argued on behalf of the appellant that the trial judge should have withdrawn the case from the jury as the prosecution did not produce any consistent evidence that death could have been caused by a stab wound. It was at all times the prosecution case that the deceased had died in consequence of a stab wound to his chest caused by a sharp weapon, and most likely by a bladed knife. Because of decomposition, however, the effect of such wound could not be traced with exactitude by Dr. Marie Cassidy, the State Pathologist. Because the body of the deceased was found lying on his front, it was relatively protected from animal activity. The skin, however, had dissolved, leaving only the soft tissues over the front of the rib cage. Between the second and third right ribs there was a slit in the intercostal muscles. Behind this area, in living people, is situated the right lung and the upper attachment to the heart. Dr. Cassidy's view was that the damage to the intercostal muscle was fairly typical of the type of damage that you would see caused by a stab wound to the body at that location. The effect would be the severing of the intercostal artery, with the loss of a significant quantity of blood, possibly causing death in itself, but also...
To continue readingREQUEST YOUR TRIAL