Willoughby v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 18 February 2005
• Neutral Citation: [2005] IECCA 4
• Court: Court of Criminal Appeal
• Date: 18 February 2005

WILLOUGHBY v DPP

BETWEEN

BRIAN WILLOUGHBY

APPLICANT

AND

THE PEOPLE (AT THE SUIT OF DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

[2005] IECCA 4

Kearns J.

de Valera J.

Clarke J.

[RECORD. NO.63/2003]

THE COURT OF CRIMINAL APPEAL

CRIMINAL LAW

Evidence

New or additional evidence on appeal - Accused convicted of murder - Deceased person had taken considerable quantity of ecstasy tablets - Pathologist evidence - New evidence that deceased may have died of ecstasy poisoning - Expert evidence given at trial by pathologists - Principles applicable - Exceptional circumstances - Where evidence not known at time of trial - Evidence must be credible by reference to other evidence at trial - Application to hear additional evidence refused (63/2003 - CCA - 18/2/2005) [2005] IECCA 4

Willoughby v DPP

COURTS OF JUSTICE ACT 1924 S33

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S7

DPP v REDMOND UNREP CCA 6.7.2004 2004/17/3842

DPP v O'BRIEN UNREP CCA 29.1.1990 2000/8/2854 (EX TEMPORE)

ARCHBOLD CRIMINAL PLEADING, EVIDENCE & PRACTICE 2001 PARA 7.214

R v LOMAS 53 CAR 256

CRIMINAL APPEAL ACT 1968 S23

HARDING 1936 25 CAR 190

DPP v CUNNINGHAM 2002 2 IR 712 2003 1 ILRM 124

COURTS OF JUSTICE ACT 1924 S29

LYNAGH v MACKEN 1970 IR 180

LADD v MARSHALL 1954 1 WLR 1489

R v PARKS 1961 1 WLR 1484 1961 3 AER 633

AG v KELLY 1937 1 IR 315

ARCHBOLD CRIMINAL PLEADING, EVIDENCE & PRACTICE 2001 PARA 7.81

DPP v SCANLON 3 FREWEN 15

CRIMINAL JUSTICE ACT 1964 S4

DPP v O'MAHONY 1986 ILRM 245 1985 IR 517

DPP v REDDAN & HANNON 1995 3 IR 560

1 Judgment of Mr. Justice Kearns delivered the 18th of February, 2005.

2 The appellant was on the 2 ^nd April, 2003, convicted in the Central Criminal Court of the murder of Brian Mulvaney on the 11 ^th of March, 2000, at Templeogue in the City of Dublin. Another accused, Stephen Aherne was found guilty of manslaughter and a third accused, Neill Barbour, was acquitted.

3 The deceased was aged 19 years and had been the victim of a savage assault on the night of his death. In the hours preceding his death, he had been present along with the appellant and other youths at a house party in the area. It appears that both drink and drugs, including ecstasy, were available at the party. The post-mortem on the deceased carried out by the State Pathologist, Professor Harbison, revealed that the deceased had a blood alcohol reading of 89mg% and some small intake of benzodiazepines. The initial report from State Pathologist Professor John Harbison did not refer to the fact that Brian Mulvaney had also consumed ecstasy. At about 1:30am, the appellant and the deceased left the party together to visit a nearby shop, apparently for the purpose of purchasing cigarette papers to roll some joints of cannabis. They were joined by the second and third named accused and, sometime after 2:00am, having been lured by the three to a quiet spot, the deceased was set upon. He broke free from this initial assault and ran about 100 yards before being caught, at which point he was repeatedly kicked and beaten to the head and other parts of the body. A length of timber was also used in the beating. He was found shortly afterwards lying on his back in the middle of the roadway in an unconscious state. His upper clothing had been torn off by his assailants. He was having great difficulty in breathing when first found by witnesses Canny, Connolly and Devine at about 2:30am. He was turned on his side in an effort to facilitate breathing. An ambulance arrived at approximately 2:40am. He was then noted not to be breathing and various efforts to restore breathing failed. The ambulance crew conveyed him to Tallaght Hospital where he was pronounced dead approximately 1 hour later. Professor Harbison noted that the deceased's lungs had accumulated blood and other fluid and concluded that the source of same in the lower lobes of the deceased's lungs was due to the facial injuries sustained by the deceased in the course of the assault. These injuries, particularly in the region of the mouth and nose, resulted, in Professor Harbison's opinion, in the inhalation of blood into the lungs leading to death by asphyxiation. He noted the deceased's airway from the tongue downwards to the windpipe or trachea and into the lungs contained a mixture of blood and mucus. The deceased's cough reflex, which might have enabled him to cough up this blood and fluid, was, in Professor Harbison's opinion suppressed owing to a concussion which in turn had been caused by multiple head injuries suffered during the assault.

4 The appellant did not give evidence during the trial, nor did he seek in any way to resile from the statement which he subsequently made to the Gardaí at Terenure Garda Station in the presence of his mother on the 11 ^th March, 2000, in which he stated:

"I just want to tell you what happened while my Mam is here. I was at a party and I left the party with another guy. I don't know this guy. We walked to the Orwell Shopping Centre. There we met Gookie at the Orwell Shopping Centre. The other guy was slagging the Orwell crowd and the area. A fight broke out. The fight started at the back of the church. There was no weapon used during the fight at the back of the church. I was using my fists and my feet on this guy. He got away and we chased him over to the Watercourse. I caught up with him and I began to beat him again. I was using my fists and my feet. I was punching and kicking him. I was kicking and jumping on his head when he was on the ground. I kept kicking kicking. I did not use any weapon I just kept kicking him and jumping on him. Gookie shouted at me to leg it and I just ran and left him lying on the ground. When we were pulling out of this guy his hoodie and top came off. I don't remember what happened to them. At 21:01 D/Sgt Seamus Quinn enters interview room and shows Brian Willoughby a length of timber. That's the stick I seen in the attack. Gookie got that stick from somewhere. I am happy that is the stick that was used during the attack on the guy, I kicked and punched. 21:04 D/Sgt Quinn leaves the interview room. I don't feel that I was responsible for what has happened I just went berserk I am sorry for his family. This statement has been read over to me and it is correct. I do not wish to change anything."

5 While the court will return to the facts of the assault and other evidence at a later point, it should be noted at the outset that at no point either during the party, or thereafter until the time of his death, did the deceased evince any signs of illness, diminished consciousness, erratic behaviour or anything untoward or unusual. On the contrary, the evidence in the case demonstrated that his actions both at the party and from the time he left the party were consistent with those of a normal healthy young man of his age. Indeed on the accused's own account, the deceased endeavoured to escape the assault perpetrated upon him and was later found to have some defensive injuries to his hands and arms. While he was only pronounced dead on arrival at the hospital, it seems clear that his death took place not long after the assault. Following the arrival of the ambulance on the scene, desperate efforts were made to resuscitate the deceased which included the use of a pump and suction to clear his airways.

6 The trial of the accused came on in February, 2002, at which point it emerged that further toxicology analysis in respect of the deceased's blood had revealed that the deceased had ingested a quantity of ecstasy on the night of his death. His post-mortem blood ecstasy level of 2microgram/ml was later stated, in the 2003 trial, by Dr. Bridin Brady, a senior chemist in the State Laboratory, to be a 'potentially' fatal quantity. However, that evidence was severely qualified by her when she indicated that many persons could take such a dosage without any significant ill-effects, whereas the same quantity could prove fatal for a susceptible person in certain instances. Equally, significantly higher quantities had not caused death in other cases.

7 When this issue emerged during the course of the first trial in February, 2002, counsel for all accused insisted upon their entitlement to have some remaining blood samples of the deceased analysed and to seek expert opinion thereon. As that process would take some time, the jury was discharged by the then trial judge, Butler J, and a lengthy adjournment of the case then followed.

8 In the aftermath of the aborted trial, counsel for all accused collectively decided they would retain an independent pathologist on the issue of causation. Professor Busuttil, a forensic pathologist from Edinburgh in Scotland was then retained by the legal representatives for the second named accused on behalf of all co-accused. It was further agreed between the representatives of the accused that senior counsel for Stephen Aherne would travel to Edinburgh for the purpose of consulting with Professor Busuttil. It was also agreed that Aherne's counsel would conduct the cross-examination of Professor Harbison on the issue of causation and lead the direct evidence and any re-examination necessary from Professor Busuttil when he gave his evidence at the trial. All of this strategy was put into effect.

9 From this it can be seen that the accused's legal representatives were keenly aware of the importance of this issue and had some 13 months within which to conduct all necessary inquiries as to the possible role played by the ingestion of ecstasy in terms of causation.

10 In the course of his evidence at the re-trial, Professor Harbison did not alter his view as to the cause of death, notwithstanding the new developments which had occurred. He remained of the view that the deceased died of asphyxiation due to...