Court of Appeal dismisses murder appeal, upholding jury verdict on intent despite appellant's claim of accidental shooting.

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Mahon J.

Appeal No.: 200/2012

Between

The People at the Suit of the Director of Public Prosecutions

Respondent

- and -

Kenneth Collopy

Appellant

Judgment of the Court delivered on 5th day of May 2016 by Mr. Justice Mahon

1. The appellant was convicted of murder on 29th March 2011 following a nine day trial at the Central Criminal Court. He was

sentenced to life imprisonment. This appeal is against conviction.

2. At about 9.30 p.m. on the evening of 8th December 2009, Daniel Fitzgerald was shot a number of times outside the mobile home of

his uncle, Paul Fitzgerald, at Cloughnadromin, Ballysimon, in Co. Limerick. On that evening, Mr. Fitzgerald visited his uncle and his

family. As he was emerging from his uncle’s mobile home, he turned around and informed his uncle that there was a car in the process

of turning in the yard to the front of the mobile home. Mr. Fitzgerald then continued outside whereupon he was shot. Mr. Fitzgerald

sustained two bullet wounds, one to his head, and one to his right thigh, and died soon afterwards. A number of shots were also fired

at, and through, the mobile home.

3. The appellant admitted the unlawful killing of the deceased, but denied murder. Effectively, the appellant contended that his

intention was to fire shots at the mobile home in retaliation for an earlier incident relating to his mother’s home but not intending to

shoot anyone, that it was dark at the time, and that he was unaware that the victim or anyone else had just emerged from the

mobile home and was in its vicinity at the time of the attack.

4. Earlier on 8th December 2009, the appellant met with Jason O’Donoghue, Stephen Wallis, Christopher Mulqueen and David Bussoli.

He asked Mr. O’Donoghue to drive him in his car to Croughnadromin, Ballysimon, Co. Limerick. Mr. O’Donoghue refused to do so

because he was aware that the appellant had a gun on his person, and he abandoned his car along with Mr. Wallace, whereupon Mr.

Bussoli, Mr. Mulqueen and the appellant proceeded to drive Mr. O’Donoghue’s car to the location of the attack. The appellant

discharged approximately seventeen bullets from a gun in the direction of the mobile home, two of which struck Mr. Fitzgerald.

5. Mr. Mulqueen and Mr. Bussoli made statements to the gardaí, and gave evidence at the trial. Mr. Mulqueen’s evidence was that he

had not seen the appellant discharge his weapon, as he was lying down in the back of the car. He said that it was his understanding

that the appellant did not intend to murder anyone or cause harm to anybody, but rather to shoot at the mobile home. In his video

recorded statement to the gardaí, Mr. Bussoli said that he was in the front passenger seat in the car, that when they drove into the

Fitzgerald yard, a man emerged from the mobile home, whereupon a gun came across his face and a number of shots were discharged

by the appellant. He said he saw the man fall to the ground.

6. When giving evidence at the trial, Mr. Bussoli claimed that he was unable to remember the events of 8th December 2009. An

application was duly made pursuant to s. 16 of the Criminal Justice Act 2006 for the admission into evidence of the video recording of

Mr. Bussoli making his statement to the gardaí on 14th December 2009, on the ground that his evidence to the court was materially

inconsistent with his video recorded statement.

The grounds of appeal

7. The appellant appeals his conviction on a number of grounds, as summarised below:-

(i) The video recorded statement of Mr. Bussoli ought not to have been admitted into evidence.

(ii) The decision to admit the said video recorded statement of Mr. Bussoli into evidence coupled with the fact that Mr.

Bussoli claimed a total lack of memory in relation to the date in question deprived the appellant of the opportunity to

cross examine and challenge the content of the video recorded statement.

(iii) The learned trial judge failed to adequately direct the jury in relation to accomplice evidence. It is contended on

behalf of the appellant that Messrs Mulqueen and Bussoli were, potentially, accomplices of the appellant in that they

accompanied the appellant on the evening in question and were with him when the appellant shot and killed Mr.

Fitzgerald. Both Messrs Mulqueen and Bussoli were arrested in the course of the murder investigation but were never

charged with murder, or any other crime in connection with the incident.

(iv) The learned trial judge failed to adequately or at all direct the jury in relation to the separate and distinct concepts of

recklessness and intent.

(v) The unanimous jury verdict of guilty was perverse.

Section 16 of the Criminal Justice Act 2006

8. Section 16 of the Criminal Justice Act 2006 provides as follows:-

"16(1) Where a person has been sent forward for trial for an arrestable offence, a statement relevant to the

proceedings made by a witness (in this section referred to as “the statement”) may, with the leave of the court, be

admitted in accordance with this section as evidence of any fact mentioned in it if the witness, although available for

cross-examination—

(a) refuses to give evidence,

(b) denies making the statement, or

(c) gives evidence which is materially inconsistent with it.

(2) The statement may be so admitted if:-

(a) the witness confirms, or it is proved, that he or she made it,

(b) the court is satisfied:-

(i) that direct oral evidence of the fact concerned would be admissible in the proceedings,

(ii) that it was made voluntarily, and

(iii) that it is reliable,

and

(a) either:-

(i) the statement was given on oath or affirmation or contains a statutory declaration by the witness

to the effect that the statement is true to the best of his or her knowledge or belief, or

(ii) the court is otherwise satisfied that when the statement was made the witness understood the

requirement to tell the truth.

(3) In deciding whether the statement is reliable, the court shall have regard to:-

(a) whether it was given on oath or affirmation or was video recorded, or

(b) if paragraph (a) does not apply in relation to the statement, whether by reason of the circumstances in which

it was made, there is other sufficient evidence in support of its reliability,

and shall also have regard to:-

(i) any explanation by the witness for refusing to give evidence or for giving evidence which is

inconsistent with the statement, or

(ii) where the witness denies making the statement, any evidence given in relation to the denial.

(4) The statement shall not be admitted in evidence under this section if the court is of the opinion:-

(a) having had regard to all the circumstances, including any risk that its admission would be unfair to the

accused, or if there are more than one accused, to any of them, that in the interests of justice it ought not to be

so admitted,

or

(b) that its admission is unnecessary, having regard to other evidence given in the proceedings.

(5) In estimating the weight, if any, to be attached to the statement regard shall be had to all the circumstances from

which any inference can reasonably be drawn as to its accuracy or otherwise.

(6) This section is without prejudice to sections 3 to 6 of the Criminal Procedure Act 1865 and section 21 (proof by

written statement) of the Act of 1984.”

The Section 16 issue

9. When Mr. Bussoli was called to give evidence, he claimed that he was unable to remember the events of 8th December 2009, save

for the fact that he was painting his mother’s home on that date. He maintained that he was on medication at the time and had

consequential memory difficulties. In the course of a voir dire, the learned trial judge heard evidence from two garda witnesses who

had been involved in the video recorded questioning of Mr. Bussoli.

10. The learned trial judge also considered medical reports and documentation relating to the medication being taken by Mr. Bussoli,

and which he maintained that when taken with cannabis adversely affected his memory. The learned trial judge did not accept that

this was the case. He also viewed the video taped recording of the making of the statement in question. The learned trial judge

proceeded to admit the video taped statement of Mr. Bussoli pursuant to s. 16 of the Criminal Justice ct 2006. In his ruling he

stated:-

“I am satisfied that the video tape is admissible in evidence for the purposes of section 16 of the Criminal Justice Act of

2006. I am satisfied that in relation to matters the evidence of Mr. Bussoli goes beyond the evidence of Mr. Mulqueen,

and accordingly it cannot be said that it is unnecessary having regard to other evidence in the matter. I do not see any

unfairness in admitting the statement or the interview tape. I do on the other hand see an unfairness to the people of

Ireland if it was not admitted. I am satisfied that the statement and interview is reliable in the circumstances in which it

was made. Mr. Bussoli had been released from section 50 detention, he was a free agent, he was free to go, but he

decided of his own violation to remain and make a statement. It was made quite clear to him in the course of – I

should’nt say in the course of but prior to the commencement of the interview that he is free to leave at any stage. He

does’nt show any reluctance at any stage in the course of the interview, and I am satisfied that it is reliable. He is

present in court and is available for cross examination. It is suggested that there can be no meaningful cross

examination of Mr. Bussoli but I do not see that as being the case. As Ms. Ring has pointed out, if there are elements

where he does not seek to assist the court, then those matters can be dealt with by way of cross examination of the

officers who were involved in the investigation and detention of Mr. Bussoli. Accordingly I will admit the video into

evidence as evidence as set out in section 16 of the Criminal Justice 2006..”

11. Under the provisions of s. 16 of the 2006 Act it is necessary, in order for a statement to be admitted into evidence under the

provisions of s. 16, that the trial judge be satisfied, inter alia, that the statement in question was made voluntarily and, that it is

reliable. It is evident from his ruling in relation to the application to admit the s. 16 statement, that the learned trial judge was

satisfied that the statement had been made voluntarily, in that he remarked that Mr. Bussoli had decided of his own violation to

remain and make a statement. The learned trial judge also expressed his satisfaction that the statement was reliable. The learned

trial judge had had the opportunity to view the video recording of the statement, and to hear the evidence from Mr. Bussoli and the

gardaí. He had had, as was stated by McKechnie J. in DPP v. Murphy [2013] IECCA 1 at para. 15, “the unrivalled advantage which the

trial court has in its ability to see and hear witnesses and to observe their manner and demeanour when giving evidence”.

12. The learned trial judge had clearly considered very carefully the circumstances in which Mr. Bussoli came to make his statement,

and his excuse for his failure of recollection when giving oral evidence in the course of the trial.

13. In DPP v. O’Brien [2010] IECCA 103, Macken J., referred to the necessity on the part of a trial judge, in order to determine the

reliability of a statement:-

“To examine the circumstances and factors surrounding the making of the statement, to ensure this is a reliable

statement in the sense that it is one which can be relied upon, rather than requiring the court to be satisfied that the

actual content of the statement is reliable in the sense that it is true.”

14. In DPP v. Campion [2016] IECA 274, at para. 35, Birmingham J. in the course of delivering the judgment of the court stated:-

“It is quintessentially a matter for the jury to decide whether they can identify where the truth lies, and if the view is

that the truth is to be found in the earlier statement sought to be relied on by the prosecution, whether they can be

sufficiently confident that that is the case and that they can proceed to return a verdict of guilty beyond reasonable

doubt. Section 16(3) provides guidance to a court considering whether a statement is reliable by directing attention to

whether it was given on oath or affirmation, or was video recorded, and if not so, whether by reason of the

circumstances in which it was made, there was other sufficient evidence in support o reliability.”

15. The court is satisfied that the learned trial judge was correct in his decision to admit into evidence the video taped recording of

the statement of Mr. Bussoli, having decided, in accordance with the provision of the legislation, that the statement had been made

voluntarily, and was reliable. This ground of appeal is therefore dismissed.

The accomplice issue

16. The appellant contends that the learned trial judge failed to adequately direct the jury in relation to accomplice evidence, and in

particular to treat Mr. Mulqueen and Mr. Bussoli as accomplices. It is contended that, potentially, both these men were accomplices’

of the appellant in that they had accompanied the appellant in the car, in the knowledge that the appellant was armed, and had

generally facilitated the appellant up to the point of the discharge of the gun which led to the death of Mr. Fitzgerald.

17. Mr. Mulqueen and Mr. Bussoli were arrested and questioned in relation to the death of Mr. Fitzgerald. It is acknowledged that in

the course of his detention, Mr. Bussoli was told by gardaí that he was in serious trouble and could face a sentence of twenty years

imprisonment. There was no evidence to suggest that either Mr. Mulqueen or Mr. Bussoli had themselves actively engaged in the

planning or the implementation of the attack on the Fitzgerald mobile home. It was not suggested that they were anything but

passengers in the car at the time or that they could have done anything to prevent the incident occurring. As Hawkins J. stated in RV

v. Cooney [1882] 8 Q.B.D. 534:-

“..it is of no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Non interference to

prevent a crime is not itself a crime.”

18. In the course of his closing address to the jury, Mr. Grehan, S.C, on behalf of the appellant referred to the care with which he

contended the jury should treat the evidence of Mr. Mulqueen and Mr. Bussoli. He said:-

“And you might consider for a moment that you need to approach with some little bit of care the evidence of Mr.

Mulqueen and Mr. Bussoli, they, after all remained in this car, they after all knew clearly, I would suggest to you, that it

was intended to shoot into the caravans, as Mr. Mulqueen told you was the intention, that it was not the intention to kill

Daniel Fitzgerald, that there was no particular caravan any caravan in all.”

19. In the course of his charge to the jury, the learned trial judge did not give any particular warning to the jury to be careful in

relation to the evidence of Mr. Mulqueen and/or Mr. Bussoli such as might constitute an accomplice warning.

20. It had not been suggested by Mr. Grehan, S.C., prior to the commencement of the charge that such a warning ought to be

considered by the learned trial judge. However, after the conclusion of the charge, Mr. Grehan requisitioned the learned trial judge in

the following terms:-

“…in relation to the evidence of Mr. Bussoli and Mr. Mulqueen, it would seem to me that on any interpretation they had

some knowledge of something going to happen and they come within the rubric of accomplices and that some kind of

warning should be given to the jury that they should be somewhat cautious in respect of their evidence because of the

very real danger that somebody in that position might seek to, as it were, put it all onto somebody’s shoulders in terms

of their version or account of events. And, as I say, that is perhaps a particular problem with Mr. Bussoli who can’t be

cross examined in relation to his account so that is the first matter.”

21. Ms. Baxter, on behalf of the respondent, addressed the learned trial judge as follows:-

“…In relation to the evidence of Mr. Bussoli and Mr. Mulqueen there was never any suggestion that they were

accomplices, but the court has already directed them to assess them and their evidence and in relation to the manner

in which they gave their evidence and I think that’s a jury matter.”

22. In response, the learned trial judge remarked:-

“Well, certainly there has been no suggestion that Mr. Mulqueen was an assessory before or after the fact.”

23. Ms. Baxter responded:-

“..and in relation to Mr. Bussoli, that the court has already pointed out as emphasised by Mr. Grehan indicated that

there was no opportunity to cross examine Mr. Bussoli and that they can take that on board also.”

24. Mr. Grehan did not seek to further address the court on the matter. The learned trial judge proceeded then to re-address the jury

in relation to a number of issues, but did not address them in relation to an accomplice issue. He did however advise the jury, thus:-

“I think I did tell you that you should be cautious in relation to the evidence of Mr. Bussoli having regard to the fact that

Mr. Grehan was not capable of any meaningful cross examination of him.”

25. In the circumstances of this case, the learned trial judge was entitled to take the view, as apparently he did, that neither Mr.

Mulqueen or Mr. Bussoli could properly or reasonably be viewed as accomplices. While an accomplice warning is appropriate in some

cases it is not a warning that needs to be given, or indeed ought to be given in circumstances where there is little to suggest that

the individual or individuals concerned could reasonably be viewed in that light. An appropriate reference was however made to the

jury in relation to Mr. Bussoli because of the fact that Mr. Grehan had not been in a position to cross-examine him.

26. While it is not essential that it be done, it is useful, and indeed, preferable that prior to charging the jury a trial judge be

addressed by counsel for the accused (or indeed for the Director) to the effect, if such is contended by one or other, that the jury

ought to be given an accomplice warning or other specific warning or advice, so that, if considered appropriate by the trial judge such

can be done in the course of the charge, rather than in response to a subsequent requisition.

27. This ground of appeal is therefore dismissed.

The issue of recklessness and intent

28. The appellant maintains that the jury were not adequately informed of the concepts of “recklessness” and “intent”. It is submitted

that the learned trial judge’s directions to the jury on the issue of recklessness failed to properly explain that recklessness is

subjective in nature, and a conscious disregard for a risk or, in other words, conscious risk taking, is to be subjectively and not

objectively considered.

29. The appellant places reliance on the quotation of an extract from Charleton, Offences Against The Person, [1992] at paras. 2.21,

namely:-

“Intent is not recklessness; it is not the conscious taking of an unjustifiable risk. The line of distinction must not be

blurred. It follows that although mental states may vary intent will involve a realisation that it is virtually certain or at

least highly probable that a result will be achieved or a consequence will follow as a result of an action or an omission to

act. Complete certainty is as difficult a state of mind to achieve in the commission of a crime as another human

endeavours. It is thus not necessary to form intent. A state of mind which can, in ordinary language, be categorised as

risk taking does not suffice.”

30. More specifically it is submitted that a failure to adequately instruct the jury was detrimental to the appellant’s case that the only

true issue to be determined was whether or not the appellant intended to kill or cause serious injury to someone during the incident

on 8th December 2009, or whether the appellant was merely reckless when he discharged the weapon in the direction of the

Fitzgerald caravan. It is contended that the learned trial judge failed to address the fact that recklessness is a less culpable mental

state than intent.

31. In the course of his address to the jury, Mr. Grehan, S.C., (on behalf o fthe appellant), stated the following:-

“Kenneth Collopy bears responsibility for his death and nobody else. He shot at the caravan and Mr. Fitzgerald, an

entirely innocent man, is dead. This does not make your task easier, I would suggest to you, it makes it more difficult

because if you are to convict Mr. Collopy of murder you have to be satisfied that he intended to kill Daniel Fitzgerald or

cause him serious injury, not that he simply went out there to shot off a load of rounds at a caravan, in the misguided

belief that he was acting in some kind of revenge for his mother’s caravan. And if, ladies and gentlemen, at the end of

the day you are left in a situation where there is a doubt in your minds as to whether the prosecution have proved that

the had that intent, and you must look at it in terms of, subjectively, have they shown that Kenneth Collopy intended to

kill. If you have a doubt in your minds about that then the appropriate verdict is not murder, it is one of manslaughter.”

32. In the course of his very comprehensive charge to the jury, the learned trial judge stated:-

“To paraphrase the criminal justice act of 1964, and what it says is that, where a person kills another unlawfully, that

killing shall not be murder unless the person intended to kill or to cause serious injury, be it to the person who was killed

or to some other person. It is no defence to say “I intended to shoot Ms. Ring and I hit Mr. Grehan”. That would not give

me a defence to killing Mr. Grehan, and that is the way the law is. It is the question of the intention to kill somebody, be

it the person killed or otherwise.”

33. And

“In the present instance, ladies and gentlemen, Mr. Grehan has conceded that his client is at least guilty of

manslaughter. I have given you the definition of murder and unlawful killing is a manslaughter. The definition provides

that where a person kills another unlawfully then if there is an unlawful killing, the offence is at least manslaughter.

Thereafter it is for the prosecution to raise the level of involvement or the gravity of the offence from manslaughter to

that of murder. And to do that, ladies and gentlemen, they have to, as I say, establish that the person intended to kill or

to cause serious injury and what you must look to, ladies and gentlemen, is not the intention of the accused man when

he might have gone out to the Fitzgerald home, but what his state of mind was when pulling the trigger and that is the

crucial issue in this case. You don’t need to consider or concern yourself about whether there was an unlawful killing or

not, that is conceded. It is a question of what was the intention. And it is the state of mind at the time the trigger was

pulled. Murder does not have to premeditated. You don’t have to plan on killing somebody for perhaps days or weeks or

even hours. It is what is in your mind at the time you actually carry out the unlawful killing.”

34. There followed a detailed requisition from Mr. Grehan. One of the issues addressed by him was his concern that the jury not been

sufficiently charged in relation to the concepts of recklessness and intent. The learned trial judge agreed to re-address the jury, and

did so in the following terms:-

“..and to turn then to the issue of murder; I am told that I might have categorised the killing of Mr. Fitzgerald as an

unfortunate accident or that that was Mr. Grehan’s case. That is not Mr. Grehan’s case. Mr. Grehan says that there was

recklessness here on the part of his client but that recklessness is different from an intention to kill or to cause serious

injury. Recklessness is a conscious taking of an unjustifiable risk, and if it is recklessness and no more it remains at the

level of manslaughter.

The other matter that I have been asked to bring to your attention, ladies and gentlemen, is that in a case such as this

where the charge is murder, you are not entitled to convict of murder unless you are sure that death or serious injury

was a virtual certainly from the conduct of the accused man and that he appreciated that to be the case.

35. Mr. Grehan did not again seek to re-visit this issue with the learned trial judge.

36. The court is satisfied that the charge to the jury was comprehensive in relation to the concepts of recklessness and intent.

Indeed it is difficult to comprehend how more clearly and plainly these concepts might have been explained to the jury.

37. This ground of appeal is therefore dismissed.

Was the verdict perverse?

38. The jury were comprehensively charged in relation to all the important aspects of this case. It was not a difficult case in the

sense that its facts were reasonably straightforward. The task on the part of the jury in reaching a verdict was made somewhat

easier in the sense that the appellant acknowledged from the outset that he had unlawfully killed Mr. Fitzgerald. It was a matter for

the jury to decide whether Mr. Fitzgerald was the unfortunate and unintended victim of a reckless attack on mobile homes in his

uncle’s yard, or whether there was an intention on the part of the appellant to kill or seriously injure. The jury had all the facts before

them, deliberated upon them, and reached a verdict. The facts as presented to the jury were well capable of providing the basis for a

verdict of guilty of murder, and such a verdict is therefore not, in the court’s view, perverse.

39. The appeal is therefore dismissed.