D.P.P.-v- Mantas Pauliukonis, [2009] IECCA 130 (2009)

Docket Number:282/08
Judge:Macken J.

THE COURT OF CRIMINAL APPEALMacken, J.Budd, J.O'Keeffe, J.[282/2008]BETWEEN:THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONSRespondent-v-MANTAS PAULIUKONIS ApplicantJudgment of the court delivered on the 2nd day of December 2009 by Macken, J.The applicant was convicted of the murder of a man, Alexandra Filusins, outside a nightclub in Swords in County Dublin, arising out of events which occurred on the 2nd and 3rd June, 2007. His trial took place over a week, commencing on the 7th October, 2008 at the Central Criminal Court in Dublin, and he was found guilty on Count No. 1 of murder. On conviction, he was given the mandatory life sentence.He appeals from the conviction on several grounds, which the court will deal with in due course.Background Facts The applicant, his uncle and two others, who were brothers, arrived at the nightclub in Swords before midnight on Saturday the 2nd June, 2007. They arrived by car, an Audi with a soft top and a Lithuanian registration. This car was owned by the applicant. He was known to the head of security at the nightclub and to other staff members.The deceased had also attended the nightclub as well. At sometime before 3a.m. on the morning of the 3rd June, 2007 there was an altercation outside the nightclub. This did not initially involve the deceased, but a different man who, on the evidence, had got into the applicant's car to get a lift home, when a row developed. He got out, or was put out, of the car and was beaten by some or other of its occupants. The deceased intervened to the extent that he was alleged to have struck one of the other men involved, the uncle of the applicant. The deceased was dressed distinctively, as he was wearing a denim jacket and a red baseball cap at the time.A little later a further event occurred in the rear garden of a house, at Oaklands Avenue in Swords, referred to above. The owner saw three men leaving by a gap in the hedge at the end of the garden, and asked his girlfriend to call the Gardai. He then went downstairs and discovered the deceased lying outside the back door of his house. Upon the arrival of an ambulance he was found to be unconscious and covered in blood, with a wound to his leg. The deceased was brought to Beaumont Hospital, where stab wounds were diagnosed and he was then transferred to the Mater Hospital. He was pronounced dead at 9.48 p.m. on the 3rd June, 2007. The cause of death upon post mortem examination was given as multiple stab wounds, including a severed artery in the thigh.The applicant was arrested two days later, on the 5th June, 2007 and was charged with murder. In the course of interview, he denied he had been at the nightclub on the date in question or that he had even been in Swords. However, during the trial, in the course of the evidence of a particular witness, a formal admission was made on behalf of the accused that he was in fact present in the nightclub in Swords on the night in question.The Trial The prosecution case was that after the applicant's uncle had been punched, the applicant set out with the others mentioned above, to locate the deceased. Witnesses described the applicant enquiring from his uncle as to who had injured him, and being told it was the man in the red hat. . The applicant and the others went looking for the man described. The applicant was also seen with a [butterfly] folding knife in his hand. The man with the red hat was located in the back garden of the house mentioned above. A witness had seen two or three men entering that garden. The man with the red hat was stabbed repeatedly while in the garden. The occupant of the house saw three men walking away. Shortly after this, the applicant, his uncle and one of the other two men arrived back at the disco, on foot. The applicant spoke to the Head of Security, a Mr. Kuliavas. His evidence on one particular issue is of considerable importance, and the court sets it out. In his examination in chief the following exchange took place with counsel for the prosecution:Q. "Did you look at the injury to the older guy?A. I did, yes.Q. What did you notice?A. Two teeth were missing, the lip was burst open, it was bleeding. Basically, that is it.Q. Now, did you ask these three men anything, and if so, tell us what you asked them please.A. I asked them what happened, you know, like, in the meantime, and the defendant himself, he was basically upset about the car being stopped and them having to walk at that time already and, I don't know, as a comforting kind of thing to himself, he told me that "Well, at least we caught him", so I asked him, "Who did you catch?". And he goes, "The guy that did it." He answered that -Judge: Just wait for one moment. Is there any difficulty here?Mr. Sweetman: Well two things seem to have run together. I will let it go for the moment.Mr. Clarke: When he said they caught the guy that did it, what did you understand it to mean? Did what?A. I asked him what happened and in Lithuanian slang language, they said that they stabbed him up.Q. What did you understand - who did you understand them to mean that they stabbed up?A. The deceased. The guy that wore denim and a red baseball hat." After a few other questions, not relevant to this issue, the examination in chief continued:Q. "When the accused said what you have...

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