The Four Courts, Dublin
The High Court has granted bail to one of two men who had their convictions quashed for murdering a 64-year-old Offaly man who was beaten to death in his own home, despite garda objections.
The court also heard today, Friday, that the Director of Public Prosecutions is to consider if she will appeal the decision to overturn the convictions to the Supreme Court.
Last month, the Court of Appeal overturned the verdicts against the two men, who have been in prison for almost five years, and substituted them with convictions for assisting an offender. The three-judge court previously ruled that the two defendants were not in a 'joint enterprise' to kill but did behave in a "reprehensible" manner in a later attempt to burn the deceased's body and dispose of a baseball bat used in the attack.
In a written judgement returned on July 14, the appellate court found there was no evidence of any plan by the two men, James Davy and Matthew Cummins, to murder 64-year-old Thomas 'Toddy' Dooley.
The two, who have been in prison for almost five years, had their verdicts substituted last month by the Court of Appeal, which replaced them with convictions for assisting an offender.
At today's hearing, James Davy (30), of Thornhill Meadows, Celbridge, Co Kildare was granted bail whereas Cummins (27), of Churchview Heights, Edenderry, Co Offaly was refused bail as the High Court found he was in a "completely different situation" to that of his co-defendant.
Ruling on Cummins' bail application, Mr Justice Michael White said he would have to give "serious consideration" as to whether Cummins would be sentenced consecutively for impeding the prosecution as he had other offences which post-dated it.
Mr Dooley suffered eight blows to his head, which shattered his skull, disfigured his face and left fragments of bone lodged in his brain. Two blows to his torso had fractured three of his ribs. His attackers had also tried to set him on fire after he died.
The substituted verdicts come under Section 7 Subsection 2 of the Criminal Law Act 1997, which makes it an offence to impede the apprehension or prosecution of a person believed or known to be guilty of an offence.
Both men had denied murdering Mr Dooley at Sr Senan Court in Edenderry on February 12, 2014 but they were each found guilty of murder following a Central Criminal Court trial in 2016.
Trial judge Ms Justice Margaret Heneghan said that the murder was a "brutal, motiveless attack on this defenceless elderly man” before she sentenced each to life in prison on October 10, 2016.
A third man, Seán Davy, (26), of Clonmullen Drive, Edenderry, was also found guilty of murdering Mr Dooley but failed in a bid to have his conviction overturned in 2018. He had argued that he should have been tried separately rather than jointly with his co-accused.
However, the Court of Appeal found there had been a compelling case for putting all three on trial together.
This morning, counsel for the State Kevin White BL told Mr Justice White that the Director of Public Prosecutions (DPP) was objecting to granting bail to the two men pending their sentence hearing on September 2. Last month, the Court of Appeal sent the matter back to the Central Criminal Court for sentencing.
Mr White said the DPP was "actively seeking time" to consider if they would be appealing the Court of Appeal's decision to the Supreme Court. "I don't have formal instructions of what the State's position will be on September 2," he added.
The barrister agreed with the judge that if the Supreme Court overturned the Court of Appeal decision to quash the men's murder convictions, their convictions would still stand and they would have to return to prison to serve their mandatory sentences of life imprisonment.
Padraig Dwyer SC, for Davy, told the court that the DPP have had since July 13 to consider their position and no indication had yet been given as to whether there would be an appeal. "Davy has served the equivalent of a nine year prison sentence," he argued.
At today’s bail hearing, Detective Garda Joseph Bradley told Mr White, for the State, that gardai were objecting to bail for Davy on two grounds, namely the seriousness of the charge, which carries a ten year sentence and the likelihood he would commit further serious offences. The court heard that Davy has 21 previous convictions which include burglary, assault, criminal damage and possession of a knife.
Under cross-examination by Mr Dwyer, the detective accepted that Davy has now served the equivalent of a nine-year sentence and and had offered a plea to impeding the prosecution in advance of the murder trial.
Detective Garda Joe Hughes told Mr White that gardai were also objecting to bail for Cummins under Section 2 of the Bail Act. This section allows a court to refuse bail if the court is satisfied such refusal is necessary to prevent the person committing a serious offence while on bail. Cummins has 69 previous convictions, including criminal damage, burglary and arson and the court heard that 12 of these convictions had occurred since Mr Dooley's murder in 2014.
Mr Dwyer submitted that Davy had made "enormous inroads" dealing with his psychiatric history and had served most of his time in Mountjoy West, which is reserved for "trusted and enhanced prisoners". "He is now facing a maximum sentence of ten years and it is at least possible that he would receive a sentence of the same or less so I ask the court to grant him bail," he said.
Seoirse O Dunlaing BL, for Cummins, submitted that his client had "matured somewhat" and used his time productively in prison.
Ruling on the men's bail applications today, Mr Justice White called it "a complicated situation", which he said had "a bit of legal uncertainty". Furthermore, the judge said some discount from the ten years would have to be given to the accused men for their early pleas.
However, he pointed out that there were "distinctions on the evidence" between both men's positions.
Referring to Davy, Mr Justice White said he was an enhanced prisoner in Mountjoy Prison and he would be entitled to a quarter off his sentence for good behaviour. He said he would therefore grant Davy bail from August 23 on his own bond of €100.
The judge highlighted that Cummins was in a "completely different situation" and the court would have to give "serious consideration" as to whether he would be sentenced consecutively for Section 7 Subsection 2 of the Criminal Law Act 1997 as he had other offences which post-dated that offence. "I'm not saying the court will impose a consecutive sentence but it is a live issue," indicated Mr Justice White, adding that he would not grant Cummins bail and he must remain in custody until his sentence hearing on September 2.
Mr Justice White read Davy's bail conditions, which include that he must obey a daily curfew of 7am to 10pm, provide a mobile phone number to gardai which he must carry at all times, stay out of Edenderry and not apply for any duplicate passport or travel documents.
In a judgement released last month by the Court of Appeal, Ms Justice Isobel Kennedy wrote that while it was certain that the three men knew that James Davy was in possession of the baseball bat, "we think that this is less significant and less sinister when viewed in the context of the evidence".
During the murder trial, the jury heard that James Davy was carrying a baseball bat that he said he needed for protection as he had been beaten up the last time he came to Edenderry.
"The baseball bat was in the possession of James Davy and was visible at stages throughout the evening in question, it is not the position on the evidence that it was retrieved just prior or for the purpose of going to the deceased’s home. In those circumstances, was there evidence from which the jury could infer that Matthew Cummins and James Davy realised or foresaw that Sean Davy might act as he did? We think not," she said.
The trial heard that the three men got into Mr Dooley's home through a window at about 5.30am on a cold, snowy morning. Matthew Cummins had been in Toddy's house before and knew him as a kind man who would always say hello.
Cummins climbed in a window and then opened another window to let the other two in. Toddy, who was described as "soft" by one garda witness, was used to having young visitors at irregular hours and it appears he did not object. He sat down in his armchair, opened a can of Budweiser and drank with the intruders.
The three drank with Toddy for a time but at some point Mr Dooley was beaten to death and attempts were made to set his dead body on fire. The State had argued that all three men were equally guilty and were involved in a "joint enterprise" to murder Mr Dooley.
Ms Justice Kennedy said that "the manner of entry is not as sinister as might ordinarily be the case, in that this also must be examined in the context of the circumstances. It is apparent from the evidence that young people went into Mr Dooley’s house to socialise and used the window as the means of entry".
The three men gave different accounts of what happened in the house.
Matthew Cummins claimed that "out of the blue" Seán Davy walked up behind the 64-year-old and beat him on the back of the head with the bat, before coming around the armchair to continue the beating from the front.
Seán Davy claimed that James Davy was responsible for most of the blows, and that he himself struck Mr Dooley once, but "not full force". James Davy denied laying a hand on Mr Dooley, saying that Seán Davy beat him with the bat and Matthew Cummins kicked Mr Dooley but not with much force.
Caroline Biggs SC, for Cummins, had argued that at no stage during the trial had the DPP “pinned her colours to the mast” to say whether the case was one of joint enterprise or aiding and abetting.
“It was just throw enough mud at this case and it will stick,” she suggested. She also argued that the judge should have severed the indictment.
Ms Biggs had argued that her case was not properly put to the jury by the judge and that the law regarding joint enterprise was also not properly explained.
Ms Justice Kennedy said it is essential that there be evidence of an agreement before there can be a joint enterprise.
She said the court could not agree with the DPP's assessment that the entry through the window and the introduction of the baseball bat together with other factors made it clear there was a tacit agreement to inflict serious harm on the deceased and thus there was evidence of a joint enterprise.
Addressing any evidence of joint-enterprise by the three men, Ms Justice Kennedy said: "The conduct of James Davy and Matthew Cummins in the aftermath of the murder of Mr Dooley was reprehensible. The efforts to burn the body, the stealing of property and the disposal of incriminating items are all deeply unsavoury."
"However, while those factors could certainly be considered in inferring the existence of an agreement, they are not determinative. If the circumstances concerning the possession of the baseball bat and the entry into the house were different, then the conduct in the aftermath would certainly be additional factors lending weight to the existence of an agreement and acts done in furtherance of and in contemplation of that agreement. But, this is not the evidence in the present case," she said.
"We find ourselves in agreement with the arguments advanced on the part of each appellant. There simply was an absence of evidence from which the jury could infer the existence of an agreement in the first instance," said Ms Justice Kennedy.
However, Ms Justice Kennedy said the court rejected the appellants' argument that the men should have been tried separately, saying that the jury had the right to hear the facts of the case "in totality".
"We find that the trial judge erred in failing to direct the jury to return verdicts of not guilty of murder. However, there is overwhelming evidence of guilt insofar as an offence under the Criminal Law Act, 1997 is concerned," she said.
"We will allow the appeal and quash the conviction for murder, however we will substitute a conviction for assisting an offender pursuant to the Criminal Law Act 1997."
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