Killian Flood BL

About this case:

• Citation:
  [2021] IECA 198
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Ms Justice Isobel Kennedy

However, the court held that, on the specific facts of the case, it was not possible to determine that there was an express or tacit agreement between the parties to kill the victim. As such, the trial judge should have directed the jury to return not guilty verdicts for the two appellants.

Background

In February 2014, Mr Toddy Dooley was murdered in his home in Edenderry. He had been beaten by a blunt instrument in a violent attack.

Three men were accused of the killing. The prosecution’s case was that Mr James Davy and his cousin, Mr Sean Davy had been drinking in a pub. James had a baseball bat with him. Later, the two men went to the home of a woman. They were joined by Mr Matthew Cummins. All men had consumed alcohol and cocaine/mephedrone.

Later, in the early hours of the morning, the men went to the home of Mr Dooley. Mr Cummins had entered the house through a window and let the other men in. James Davy was still in possession of the baseball bat.

Subsequently, Mr Dooley was severely beaten and died from head trauma. It was accepted that Sean Davy had struck Mr Dooley and evidence suggested that only one person caused the injuries. Both James Davy and Mr Cummins denied that they had assaulted Mr Dooley.

The three men attempted to light Mr Dooley’s body on fire and they left the house. They attempted to dispose of incriminating evidence, including a baseball bat and bloodstained clothing. The were caught on CCTV and were later arrested, interviewed and charged with Mr Dooley’s murder.

The DPP maintained that all men had engaged in a joint enterprise to kill Mr Dooley. It was said that the manner of entry, the possession of the bat and the actions in the aftermath showed that each individual was culpable for the murder. The three men were all convicted of murder, despite Sean Davy being the only person who had struck a blow.

Both James Davy and Mr Cummins appealed the decision. They argued three general grounds of appeal, although it was only necessary for the court to consider two grounds. First, it was alleged that the trial judge should have severed the indictment in the case.

This arose in a context where certain texts were expected to be adduced by the DPP which tended to show the James Davy had a motive. The text stated that Mr Dooley was a rapist, but this was accepted to be false and the prosecution never relied on the text. Mr Cummins wished to rely on the text to show that the Davys had motive to kill Mr Dooley, who they believed to be a rapist. However, he argued he would have to “drop his shield” under s.1(f) of the Criminal Justice (Evidence) Act, 1924 to do so.

Alternatively, James Davy argued that the indictment should be severed as the text message was being relied on by a co-accused and could prejudice a fair trial.

Second, it was argued by the appellants that a joint enterprise had not been established on the facts of the case and the trial judge should have directed an acquittal. It was argued that the entry of the premises and carrying of a baseball bat were not evidence of a joint enterprise when viewed in context.

Court of Appeal

Giving judgment in the case, Ms Justice Isobel Kennedy held that a joint enterprise had not been established on the facts of the case. However, the court upheld the trial judge’s refusal to sever the indictment.

In dealing the with severance issue, the court relied on the well-established authority of AG v. Murtagh [1966] IR 361, stating that co-accused should normally be tried together and for a jury hear the totality of evidence. There was no obligation on the DPP to adduce evidence of the text message, particularly where the contents were false and “patently unreliable.”

In Mr Cummins’ case, the jury actually had access to the text, so only minor prejudice could arise from the DPP not relying on the message. The court was “not at all persuaded” by Mr Cummins’ submission that he would have to drop his shield under s.1(f), as the prosecution could still have cross-examined him on his previous convictions in a separate trial.

In the case of Mr Davy, the court was satisfied that the introduction of the text was “simply one of those factors which arise in the course of a joint trial.” The evidence was inadmissible because he was a co-accused in the case, so no prejudice arose. As such, the trial judge was correct not to order a severance of the indictment.

The court then considered whether the trial judge should have directed an acquittal on the murder charges for the appellants. The court noted that a joint enterprise was dependant on the prosecution establishing that the parties agreed to the murder of Mr Dooley (The People (DPP) v. Cumberton (unreported, Court of Criminal Appeal, 5th December 1994); The People (DPP) v. Doohan [2002] 4 IR 463). The evidence of the agreement could be express or implicit.

Considering the interview evidence of the appellants and the facts of the case, the court was not satisfied that a common intention to commit murder had been established. While the entry of the men through the window and the possession of the baseball bat may be cogent evidence of intention to inflict harm in most cases, it was not in the present scenario.

It was noted that the bat was in Mr Davy’s possession all evening and it could not be foreseen by the appellants that Sean Davy would use it to kill the deceased. Further, the manner of entry was not very sinister because the evidence established that young people went to Mr Dooley’s house to socialise and the window was their usual method of entry.

Although the conduct of the appellants in the aftermath of the death was reprehensible, the actions were not determinative of a joint enterprise. If the circumstances of the entry and baseball bat had been different, the post-killing conduct may have lent weight to the idea of a joint enterprise. However, this was not the case.

Conclusion

The court allowed the appeal and quashed the convictions of the appellants. However, the court substituted a conviction for assisting an offender under section 7(2) of the Criminal Law Act 1997. The matter was remitted to the Central Criminal Court for resentencing.