Court of Appeal: Murderer fails in appeal over ‘bad character evidence’

About this case:

• Citation:
  [2020] IECA 65
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice George Birmingham

Darren Murphy was charged with the murder of Olivia Dunlea at her home in Passage West, Cork on 17 February 2013. He pleaded not guilty to murder, but guilty to manslaughter. The plea was not accepted by the prosecution and the matter proceeded to trial.

On 15 June 2018, he was convicted of murder by a unanimous jury verdict in the Central Criminal Court and sentenced to life imprisonment. He was previously convicted in 2014, but that conviction was overturned by the Court of Appeal in 2015 (DPP v Murphy [2015] IECA 314). Another trial occurred in 2017 in which the jury couldn’t reach a verdict.

Background

Mr Murphy and the deceased were in a relationship for several weeks prior to her death. On 16 February 2013, they were at a pub with friends and took a taxi home. The driver testified that the deceased was in seemingly good spirits, while Mr Murphy was “grumpy, kind of frosty”.

Later that night, the Fire Services attended at the scene of a fire at the home of the deceased. Two fires had been started at the house. A fire in the kitchen caused limited damage, but another in the deceased’s bedroom was much more serious. It was here that the body of the deceased was discovered, in a face-down position. Much of her upper body had suffered extreme fire damage.

Mr Murphy initially feigned surprise when told of the fire. He arrived to the scene in different clothing to that which he had been wearing, having earlier hidden those clothes, and gave a statement saying that he left her house after a verbal argument.

Her body was examined by the then State Pathologist, Professor Marie Cassidy, who identified six stab wounds on the body, two directly behind the right ear and four to the front of the neck. She was of the opinion that the cause of death was a combination of the stab wounds to the neck and the inhalation of fumes. Following the post-mortem, the Garda investigation was upgraded to a murder enquiry and significant disparities with regard to Mr Murphy’s account began to emerge.

On the evening of 17 February 2013, he was arrested on suspicion of murder. He was interviewed a number of times and under caution made admissions. He told gardaí that he and the deceased argued in relation to her previous boyfriend, that she threw him his keys, and told him to leave. She went upstairs and he followed behind her. She told him to leave because her previous boyfriend was calling, and proceeded to take off her clothes. He claimed to have become so enraged that he lost control. He grabbed a knife which had been at the side of her bed and stabbed her twice with it. He said that knew her children were coming home and he did not want them to find her so he set fire to the house.

Bad character evidence

During the cross-examination of a “peripheral witness” for the prosecution, defence counsel asked the witness to confirm that in her first statement to Gardaí, she had described Mr Murphy as a “gentle giant” and had also described him as a “great neighbour”.

Several days later in the trial, prosecution counsel indicated that they wished to call a witness to testify in the nature of character evidence. They argued that the defence had introduced good character evidence, through cross-examination, and that the prosecution was entitled to call evidence to contradict same pursuant to s.1(f)(ii) of the Criminal Justice (Evidence) Act 1924. The witness was to be a former girlfriend who would say that Mr Murphy had harassed her over the phone, and that he had thrown a bottle at her in a bar, after their relationship ended.

Counsel for the prosecution said that there was already evidence of the appellant’s possessive nature in the case, but he submitted that the specific evidence sought to be advanced would contradict the suggestion that Mr Murphy was a “gentle giant”.

The dicta was of Chief Justice Coburn in Rowton [1865] CCR was relied upon, that it would be “fatal to the proper administration of justice” if evidence should go to the jury that was one-sided in its nature, and that the accused should have, “on the consideration of his guilt or innocence, the advantage of an assumed unblemished character when, in point of fact, if his true character were known, it would be found to be just the reverse and therefore that is a ground, and a reasonable ground, for not excluding it”.

Counsel for the defence said there was no comparison between what the prosecution was seeking to put in evidence and the situation at trial in circumstances where it was admitted that Mr Murphy had killed a person. This was a murder trial where the key question was whether what had occurred was murder or manslaughter.

Counsel on behalf of Mr Murphy pointed out that the evidence adduced by the defence in cross-examination was material that had been included by the prosecution in the Book of Evidence and he suggests that in this context that the judge ought to have declined to admit the evidence.

Delivering the judgment, Mr Justice George Birmingham, president of the Court of Appeal, said: “It must be remembered, however, that a criminal trial is not decided on what is contained in the Book of Evidence but rather on the basis of what evidence is heard at trial.”

The Court found that the prosecution was entitled to adduce the bad character evidence and found that the criticism of the trial judge’s charge in relation to provocation, which was raised in written submissions, lacked substance and dismissed the appeal.