Court of Criminal Appeal dismisses appeal against murder conviction where separate trial was refused and co-accused evidence admitted.

UNAPPROVED

THE COURT OF CRIMINAL APPEAL

299/08 & 4/09

Murray C.J.

Budd J.

McMahon J.

BETWEEN

THE PEOPLE AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS

PROSECUTOR/RESPONDENT

-v-

JOHN PAUL BRETT

APPLICANT/APPELLANT

JUDGMENT of the Court delivered by Murray C.J. on the 7th day of April 2011

In this matter the applicant applies for leave to appeal against his conviction, after trial by jury, for the offence of murder namely

that on the 25th August 2007 at Ballinure Road, Mahon, in the County of Cork, he murdered Brian McKee.

The applicant was jointly tried with his co-accused Jason Quinlan before the Central Criminal Court sitting in Cork. Both accused were

convicted of the offence by a majority verdict of the jury.

Grounds of Appeal

The grounds of appeal as argued at the hearing of the appeal were as follows:

The learned trial judge erred in his decision to permit counsel for the second named accused to elicit evidence from his witness,

Rebecca Delaney, to the effect that she saw the first named accused carrying a knife on the evening before the fatal stabbing

of Brian McKee in the early hours of 25th August 2008.

The learned trial judge erred in failing to discharge the jury after the said Rebecca Delaney gave evidence that she saw the first

named accused carrying a knife.

The learned trial judge erred in refusing an application made during the trial, on 6th December 2006 for separate trials.

These grounds of appeal relate to the evidence given by Ms Rebecca Delaney as a witness for the defence called on behalf of the co-

accused, Jason Quinlan. She was the girlfriend of Jason Quinlan and objection was taken to the admissibility of certain aspects of her

evidence which is referred to in greater detail later in this judgment.

There were other grounds of appeal lodged but these, which related to the manner in which the case was let go to the jury, were not

argued at the appeal hearing. In any event no requisition concerning these matters was made at the time in the trial.

Background Facts

The deceased victim, Mr. Brian McKee, died as a result of multiple stab wounds which the prosecution claimed, on the basis of the

evidence tendered at the trial, were inflicted in the course of an assault on the deceased by the applicant and his co-accused Jason

Quinlan. The prosecution case at the trial was that the applicant and his co-accused were engaged in a joint enterprise to assault

the deceased as a consequence of which they were both guilty of murder.

At this point it is convenient to recall the evidence of Dr. Michael Curtis, the Deputy State Pathologist, concerning his findings at the

post mortem examination of the deceased as summarised by the trial judge in his charge. The pathologist found that the deceased

had a black eye on the right hand side and bruising to the lower limb which may have been caused by punches. There were a number

of superficial penetrating wounds to the upper chest on the left side which may have been caused by a broken bottle. A shard of

glass was obtained from the soft tissue of the chest wall. He had sustained a number of stab wounds to the chest on the left side,

one of them being on the back. Only one of these penetrated the chest cavity. This penetrated the upper lobe of the left lung; there

was no defence type injuries on the body. In the course of his evidence the pathologist stated “there was cocaine in the blood and in

my opinion the damaged knife and blade produced may have caused the wound other than those on the front of the chest, which

were caused by glass. I designated the cause of death as being multiple stab wounds.”

Earlier Events

It is only necessary to refer to certain salient aspects of the events leading up to the assault in which the deceased died for the

purposes of placing the issues raised by the applicant in this appeal in context. Not long after midnight of 24th August 2007 the

deceased, Brian McKee and a friend Pat Bradley returned to the house of another friend and neighbour, Raymond Keating, at St.

Michael’s Lawn, Mahon, Cork. In the meantime a large number of young people from the same area had been at a beach party in

Myrtleville, Co. Cork. It was apparent from evidence at the trial, that a significant amount of drugs and alcohol were taken at this

beach party. Around 4 a.m. on the morning of the 25th August 2007 a group of these young people returned from the beach party to

Mahon and congregated near the green on St. Michael’s Lawn. Included in this group were Ms Ciara Delaney, Jason Quinlan, the co-

accused of the applicant, and Rebecca Delaney. Ciara Delaney had for a significant time been the girlfriend of the deceased Brian

McKee but they had been separated about six months earlier. They were rearing two children together and Ms Delaney had custody

of them. The relationship between the two parents was fractious and was subject to rows breaking out between them which occurred

during the course of the events leading up to Mr. McKee’s death. The Rebecca Delaney referred to above is a sister of Ciara Delaney

and is the girlfriend of Jason Quinlan, the co-accused.

This group on the green at Mahon was subsequently joined by the applicant, John Brett, and his girlfriend, Sinead Hogan and others.

Most of those present had grown up in Mahon and knew one another well. This was not the position of the applicant but he had an

acquaintance with his co-accused, Jason Quinlan. The area near the green in Mahon where they were mostly congregated was known

as “the bollards” at the mouth of a pedestrian lane.

At one point Ciara Delaney, and another person, Amanda Collins, left the group and went to Raymond Keating’s house where Brian

McKee was at the time. An intense row broke out between Ciara Delaney and Brian McKee. The couple were screaming at each other

and provocative insults were exchanged. Brian McKee spat in the face of Ciara Delaney. Two persons asleep in the house were woken

up, Mr. Pat Bradley, who had passed out from drink on the couch in the kitchen, and Charlene Murphy who was asleep upstairs. Ms

Murphy came downstairs and asked the rowing couple to leave. Meanwhile Rebecca Delaney, having heard her sister Ciara screaming,

came across from “the bollards” towards the Keating house to join her. Other members of the group were to follow her including the

applicant, John Brett, his girlfriend Sinead Hogan, and others.

Rebecca Delaney intervened in the shouting and screaming between Brian McKee and her sister Ciara and there was some shift in the

focus of the fight between her and Brian McKee. There was evidence that Rebecca Delaney was shouting and slapping Brian McKee

for having spat at her sister. The situation had continued to be very heated. The co-accused, Jason Quinlan, threw a punch at Brian

McKee and one was thrown back but apparently neither connected. There was evidence that during all this Jason Quinlan was

conscious of the fact that Rebecca Delaney was in the early stages of pregnancy with his child. It appears that a point was reached

where Raymond Keating, Pat Bradley, and the deceased, Brian McKee, returned to the Keating house. There was evidence that Brian

McKee took a knife from the kitchen at this stage. Also there was evidence that Raymond Keating and Pat Bradley sought to restrain

Brian McKee from leaving the house but he successfully resisted that and ran out onto the green.

At this point the applicant, Jason Quinlan, the co-accused, and some others had moved some distance away from the Keating house.

There was evidence that Brian McKee ran towards this group shouting. There was conflicting evidence as to whether he had a knife

at that point but certainly there was evidence that people shouted that he had a knife. There was then evidence that Jason Quinlan

started to move towards Brian McKee who turned and began to run away. Jason Quinlan ran after him closely followed by the

applicant. Brian McKee stumbled and fell as both these men caught up with him. They went down on Brian McKee, first Jason Quinlan,

the co-accused, immediately followed by the applicant. According to evidence before the Court it was in the course of this assault

that Brian McKee received the stab wounds and other assaults referred to above including a black eye and a wound to his shoulder in

which shards of broken glass were found.

In the evidence called and relied upon by the prosecution it was not part of the prosecution case that the applicant was armed with

a knife or had used a knife in the assault. It was the prosecution case that the applicant was engaged in a joint enterprise with Jason

Quinlan who fatally stabbed the deceased. In doing so the prosecution contended, on the basis of evidence tendered at the trial,

that the applicant had been seen breaking a bottle prior to the attack on Brian McKee and had been responsible for inflicting the

wound to the deceased’s shoulder in which shards of glass were found as well as physically assaulting him with his fists in the joint

attack.

There was no evidence from any of the prosecution witnesses that the applicant had at any stage been seen in possession of a knife.

Such evidence was to come from the witness, Rebecca Delaney who was called to give evidence on behalf of the accused, Jason

Quinlan, after the applicant had given evidence in his own defence following the completion of the presentation of evidence by the

prosecution. That evidence related to the alleged possession of a knife by the applicant.

Subsequent to the assault a knife had been found by the Gardaí in an area described as “the scene of assault”. This was a steak

knife and no fingerprints were found on the blade. The deceased’s blood was found to be on this knife. Raymond Keating admits that

the knife in question came from his home. Charlene Murphy also identified it as a knife missing from that house.

The evidence of Rebecca Delaney

As previously mentioned Ms Rebecca Delaney was the girlfriend of the co-accused, Jason Quinlan by whom she was pregnant at the

time when these events took place. She was interviewed by the Gardaí on a number of occasions as part of their investigation. She

made several statements to the Gardaí. These consisted first of all of notes of an interview with her on August 25th 2007 the record

of which she signed and approved. On the same occasion or date she made what was described as a formal statement which she also

signed and acknowledged to be correct. Subsequently on the 28th August 2007 she made two statements to the Gardaí one a short

one and the other a longer statement giving a different account of the course of events surrounding the fatal assault than she had

given on August 25th. Both statements were signed and acknowledged to be correct. The short statement stated “In relation to my

statement that I made last Saturday to the guards, there was parts of it that I didn’t tell the truth in. I was very upset about what

had happened. The statement that I made today, 28th August 07, is the truth.”

In giving direct evidence at the trial she was asked by counsel for the co-accused, Jason Quinlan, who had called her as a defence

witness, about what happened at the time when the applicant first arrived in a car at Mahon near the Keating house. She stated that

she noticed that the applicant then had a knife down his pants. She said she did not see the handle, all she could see was the blade,

it was a sharp blade she stated and that she had seen it tucked down in his pants on his left hand side. She said she saw it when the

applicant was getting out head first out of the car.

In her direct evidence she also sought to correct a portion of her earlier statement to the Gardaí where she had said “At this point

Brian grabbed the knife back off me”. She said the knife in question was found by her sister, Ciara in her front garden and handed up

to the Gardaí. She said she had dropped it there and had not told anybody about it.

She also stated in her evidence that she saw the attack taking place and she did not see Jason Quinlan with a knife in his hand. She

saw him going down on Mr. McKee and hitting him.

At the trial counsel for the applicant objected to the witness, Rebecca Delaney giving evidence of having observed the applicant in

possession of the knife when he arrived in the area for the first time. This objection was made by counsel in anticipation of the

evidence she was about to give, based on copies of her statement which had been furnished to counsel in advance of the trial.

Rebecca Delaney was a witness whom the prosecution had decided not to call as one of its witnesses, which of course it was

perfectly entitled to do. The prosecution had, of course as they were obliged, disclosed all her statements to the defence acting for

the applicant prior to the trial. Also, at an early stage of the trial, counsel for the co-accused, Jason Quinlan, had applied for witness

summonses in respect of a number of witnesses one of whom was Rebecca Delaney. The defence therefore would have been aware

that there was a possibility that this witness would be called as a defence witness on behalf of the co-accused and counsel for the

defence were also aware of the evidence she was liable to give.

Objections at the Trial

At the trial counsel for the applicant raised objections, in the absence of the jury, to the witness Rebecca Delaney proceeding to give

evidence, in accordance with one of the written statements, concerning the allegation that she had seen the applicant with a knife

when he first arrived and got out of the car in which he was travelling

Counsel pointed out to the learned trial judge that the possession of a knife by the applicant was not part of the prosecution case

against his client. It was submitted that introducing such evidence would be highly prejudicial to the applicant and of no probative

value because there was no evidence to connect it to the incidents that are the matters which the jury have to decide upon.

Counsel for the co-accused submitted that he was entitled to call the witness as the matters she would deal with were part of and

went to his defence. Counsel for the prosecution did not object, correctly in the Court’s view, to the right of counsel for the defence

to call a witness as part of their defence. Counsel pointed out the credibility of the witness would be very much in issue and she

could be cross-examined by counsel for the applicant as indeed she would be by the prosecution.

The learned trial judge observed that the evidence of the witness would form part of the corpus of evidence in the case as a whole

and would be admissible against either party. Referring to Mr. McCarthy, counsel for the co-accused, Jason Quinlan, Carney J. stated

that if Mr. McCarthy considered such evidence necessary in the interests of making his case he could not see how he, as the trial

judge, could exclude it. He observed that the well known expression “the hazards of a joint trial” would seem to cover the situation.

Counsel for the applicant submitted that the evidence might open what he described as a “Pandora’s Box” by bringing a new issue into

the frame and other witnesses may have to be called to rebut what was about to unfold, as he put it. It was not part of the case

which he was alerted to be facing, insofar as the D.P.P. brought the case. Counsel for the applicant, Mr. O’Carroll, added that his

client had already gone into the witness box and given his evidence and had been available for cross examination. This evidence,

which it was proposed to adduce by a co-accused was not put to his client so as to give him a chance of dealing with it. Counsel for

the applicant then said that if this is now the case he would have to make an application for separate trials at this stage. The learned

trial judge refused the application for a separate trial and indicated that counsel for the applicant could recall any witness and any

further witnesses could be called providing it was done before closing speeches. He also indicated that Mr. O’Carroll could recall his

client, the applicant, if he wished. Counsel for the applicant declined saying that his client had given his evidence and had run the

hazards of the cross-examination and that aspect was finished. These matters had not been put to him when he was in the witness

box and that it would be unfair in the extreme for this to happen now. It is for this reason that he had to make an application for a

separate trial.

Submissions of the Applicant in this Appeal

The essence of the submissions on behalf of the applicant was that the decision of the learned trial judge to allow Rebecca Delaney

to give the evidence which she did was prejudicial to a fair trial of the applicant such that the verdict should be set aside as being

unsafe. Up to the point at which she was called to give the evidence concerned, counsel for the applicant understood that the co-

accused, Jason Quinlan, was putting forward a defence of self defence. In any event counsel for the applicant had dealt with the

evidence given by the prosecution witnesses on the basis that there was no case being made against him that he at any stage had

or used a knife. Counsel repeated the submission that this evidence opened a Pandora’s Box from the applicant’s point of view and if it

had been known that this evidence would be given, the witnesses for the prosecution would have been examined in much greater

detail concerning the fact that no one had seen the applicant at any stage with a knife. One of the prosecution witnesses had stated

in her statement in the book of evidence that when the applicant, John Brett arrived and got out of the car that she did not see any

knife in his possession. This particular aspect of her evidence was not led as it did not seem relevant. Also in the written submissions

it was suggested that Dr. Michael Curtis, the Pathologist and possibly Garda Brian O’Donnell be recalled, the former to revisit his

evidence concerning the wounds inflicted on the deceased and the evidence he gave in relation to the two knives which were

produced in the course of the trial. Garda O’Donnell had not been called as a witness but it is not at all clear from the written

submission what advantage or assistance would be given to the defence if this witness was called. It was also submitted that the

evidence of Rebecca Delaney that the applicant was in possession of a knife when he first arrived by car at the scene of all these

events might have led to the inference that one of two knives produced in evidence at the trial was used by the applicant

significantly later when the fatal attack was made on the deceased, (although the evidence was that each knife came from the

Keating household).

Finally it was submitted that it was unfair that the applicant, having already given evidence in his own defence and having been cross

examined, should have to go through the hazard of further cross examination if he was recalled to rebut this evidence.

Submissions on behalf of the Director of Public Prosecutions

Counsel for the D.P.P. submitted that for the purpose of conducting his own defence the co-accused, Jason Quinlan was entitled to

call any witness who could give evidence relevant to the issues concerning his guilt or innocence. On this basis the prosecution could

not object to the admissibility of such evidence although it did not rely on such evidence in the case which the prosecution was

making against the applicant. The applicant’s defence team had advance notice of the statements made by Rebecca Delaney to the

Gardaí including the one which contained the piece of evidence to which this team objected. They were also aware that she was

liable to be called in view of the fact that Jason Quinlan had sought and obtained a witness summons in respect of her for the

purposes of the trial. It was submitted that the learned trial judge was correct in describing what occurred as one of the normal

hazards of a joint trial and counsel for the defence was well placed to deal with and contest the evidence given by the witness,

Rebecca Delaney, in cross-examination and was granted liberty to recall the applicant or any other witness or to call further

witnesses if they so chose. In the circumstances and in the context of a trial as a whole it could not be said that the defence of the

applicant was unfairly prejudiced. Nor could the exercise by the learned trial judge of his discretion not to grant a separate trial at

that stage be regarded as either improper or unfair. He also fairly directed the jury as to the manner in which they should approach

the issues of the guilt or innocence of both accused and no criticism or requisition was made of the trial judge after the conclusion of

his charge to the jury touching on any matter related to this appeal.

Decision

The trial in this case commenced with a joint trial of the applicant and his co-accused, Jason Quinlan. No issue is taken with the

decision to try them jointly until the witness, Rebecca Delaney, gave evidence at an advanced stage of the trial and after the

prosecution had closed its case. Joint trials of co-accused is a long established mode of trial. An accused facing a joint trial may

apply to the Court to have a separate trial. Whether such an application should be acceded to is a matter for the discretion of the

Court. The fundamental and important consideration is whether there is a real risk that a joint trial would render the trial of one or

other of the accused unfair or result in a miscarriage of justice so that a verdict of guilty could not be considered safe. There are a

number of reasons why it may be appropriate to hold a joint trial of co-accused but the most important of them relates to the

concern that, when two or more persons are charged in connection with jointly committing a crime which is a single transaction, each

of them, if tried separately, could attempt to cast the entire blame on one or more of the others. A separate trial in such

circumstances would mean that a jury would not have the totality of the relevant evidence in order to do justice properly in the case,

whatever their ultimate verdict might be. It is in the public interest that joint trials in appropriate circumstances take place provided

of course there is a fair trial.

The situation which has arisen in this case is typical of, an indeed inherent, in joint trials where one accused calls a witness who

gives evidence adverse to the interests of the defence of another accused.

In joint trials evidence may be given against one accused which is not admissible against another accused. For example one accused

may have made a statement to the Gardaí implicating a co-accused in the crime. That evidence will be admissible as evidence against

the person making the statement but not against the co-accused. Similarly, one accused may call witnesses for the defence to give

an account of facts relevant to the commission of the crime and that becomes part of the evidence in the case even though

unfavourable to another accused. The fact that such matters may occur in the course of a joint trial does not of itself create the risk

of an unfair trial or result in a miscarriage of justice. It may do so. It all depends on the circumstances and context of each case. A

witness called by one co-accused may be cross-examined by counsel for the other accused like any other witness. It is inherent in

joint trials that such witnesses may be called by a co-accused. This does not render a trial unfair, particularly when the other

accused has a fair opportunity to address and contest the evidence of such a witness.

As has been previously indicated, in this case when Ms Rebecca Delaney was called to give evidence counsel for the applicant

intervened in the middle of her evidence to object to what he foresaw, from the statement with which he had been previously

provided, she was about to say. He objected to that evidence being given or alternatively asked for a separate trial which the learned

trial judge in his discretion refused.

In considering the issues raised in this appeal the Court must look at the reality of the course of the trial, and all the evidence

tendered, which is the basis on which the learned trial judge made his decision not to grant the application for separate trials.

Of all the witnesses called, no witness stated that they saw the applicant with a knife when he ran after the deceased or when he

assaulted him. Moreover the prosecution case was that the applicant did not have a knife when he assaulted or participated in the

assault on the deceased and was not seen at any stage on that evening with a knife. That was the prosecution’s evidence and the

position of the prosecution on the basis of the evidence called did not alter at any stage in the trial. In short, of all the range of

people who were there on the night none of them said that they saw the applicant with a knife at any stage until Rebecca Delaney

came to be called to give evidence, by counsel on behalf of the co-accused, her boyfriend Jason Quinlan. To put that in context her

evidence was that the applicant had a knife when he first arrived by car on the scene. Without taking away from any significance

which might be attached to that evidence, it is nonetheless relevant to point out that this was at a point in time well in advance of

the series of events which led later to the fatal assault and neither did she give evidence of seeing the applicant with a knife at the

time of the assault.

As counsel for the applicant fairly acknowledged, the defence had received, prior to the trial, the various statements which the

witness, Rebecca Delaney, had made to the Gardaí including the one in which she admitted telling lies in her first statement. The

defence was also aware of the fact that a witness summons had been issued in respect of her at the request of the co-accused.

Indeed when she did come to give evidence, counsel for the applicant was alert to the fact that she was about to give evidence

concerning the applicant’s possession of a knife when he arrived. That is why counsel objected. It is of course true that counsel for

the applicant could not actually know that Rebecca Delaney was going to be called until she was called and thus did not know it until

after his own client had given evidence. He may indeed have assumed that the essence of the co-accused’s defence was self

defence and that evidence called by counsel on behalf of him would not touch on matters beyond that. However, the fact is that co-

accused are entitled to call witnesses in their own defence and the test, as indicated above, in this case is whether the applicant’s

defence was unduly prejudiced so as to give rise to an injustice and in particular whether he had an adequate opportunity to contest

and deal with such evidence.

As was observed and indeed acknowledged during the course of the hearing of the appeal, the cross-examination of the witness by

counsel for the applicant was thorough and complete and fundamentally called into question her credibility and veracity. As the

written submissions of the applicant point out her testimony “was later so utterly thrown open to question”. Of course the relevance

of these observations has nothing to do with the degree to which the truthfulness of her evidence may have been impugned in the

eyes of the jury. That was entirely a matter for the jury. It does illustrate however that even though counsel did not actually know in

advance that this witness was going to be called he was, in the circumstances of the case, fully in a position to expose to scrutiny

and contest the evidence of the witness on behalf of the applicant. There is nothing whatsoever to indicate that he was any less

able to do so then, than if he had been told in advance of the trial that she would in fact be called.

The evidence objected to was this single piece of evidence from this witness, Rebecca Delaney, concerning the alleged possession by

the applicant of a knife when he first arrived at the green in Mahon. The witness had earlier given evidence, without objection, to the

finding of a knife in the front garden of the Keating house and of handing it to the Gardaí. No objection was taken at the trial to that.

In any event, without it being necessary to review the evidence in relation to knives referred to at the trial, it is clear that counsel

for the applicant had a full opportunity to contest and deal with all the evidence of the witness and any implications it may have had

for the defence of the applicant.

The defence did take exception to the fact that when the applicant gave evidence in his own defence counsel for the co-accused

had not put it to him that he had had a knife when he arrived even though counsel was proposing to call evidence of that fact.

The learned trial judge, properly and fairly in the Court’s view, told the defence that they were at liberty to recall their client if they

wished on this point. That was a matter for the defence to decide. Given that he had chosen to give evidence and that the defence

complained about the failure of counsel for the co-accused to put to him or question him about this matter it can hardly be said that

recalling him on this particular point would have involved a material, if any, degree of unfairness. Of course it remained entirely a

matter for the defence whether he should be recalled and they chose not to do so. Similarly, the Court is of the view that other

concerns expressed by counsel for the applicant were reasonably met by the indication given by the learned trial judge that the

applicant could recall any witness or present any new witness to address the issue if it was thought this was in his interests having

regard to the evidence given by the witness Rebecca Delaney. Although the evidence of the witness was adverse to the interests of

the accused in this appeal the Court does not consider that there are any grounds for concluding that in the circumstances of this

case there was any prejudice to the fairness of the trial of the applicant.

The Court is satisfied that counsel for the applicant was afforded an opportunity and was in a position to fully and fairly address and

contest the evidence of Rebecca Delaney.

The foregoing were the circumstances in which the learned trial judge had to rule on the application made for a separate trial and

therefore this was in effect an application to discharge the jury as regards the charges against the applicant.

In Attorney v. Joyce and Walsh [1929] I.R. 526 at 537, approved on a number of occasions by this Court, Kennedy C.J. in delivering a

judgment of the former Court of Criminal Appeal said:

“Where … persons jointly indicted plead not guilty, the trial judge may direct that they be separately tried if, in his

opinion, separate trials are desirable in the interests of justice. The trial judge has a discretion in the matter which must

be exercised judicially. The exercise of such discretion may be reviewed by this Court and a retrial directed, if we are

satisfied that a refusal to direct separate trials has resulted in a miscarriage of justice.”

Having regard to the facts and circumstances of this case, including the opportunity afforded to the applicant to cross-examine

Rebecca Delaney, re-examine witnesses or call further evidence, and the evidence tendered as a whole at the trial, the Court is

satisfied that, in permitting the trial to proceed and in refusing the application of counsel for the applicant for a separate trial, the

learned trial judge exercised his discretion within the bounds which were open to him and the exercise of that discretion did not result

in a miscarriage of justice or result in a verdict which could be considered unsafe.

Accordingly the application of the applicant is refused.