Irish Court of Criminal Appeal

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Cite as: [2005] IECCA 4

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Judgment Title: D.P.P.-v- Brian Willoughby Neutral Citation: [2005] IECCA 4 Court of Criminal Appeal Record Number: 63/03 Date of Delivery: 18/02/2005 Court: Court of Criminal Appeal Composition of Court: Kearns J., deValera J., Clarke J. Judgment by: Kearns J. Status of Judgment: Approved

Judgments by	Result	Concurring	Dissenting
Kearns J.	Refuse leave to appeal

Outcome: Refuse leave to appeal

13

Kearns J.
de Valera J.
Clarke J.

BETWEEN
JUDGMENT of Mr. Justice Kearns delivered the 18th of February, 2005.
The appellant was on the 2nd April, 2003, convicted in the Central Criminal Court of the murder of Brian Mulvaney on the 11th of March, 2000, at Templeogue in the City of Dublin. Another accused, Stephen Aherne was found guilty of manslaughter and a third accused, Neill Barbour, was acquitted.
The deceased was aged 19 years and had been the victim of a savage assault on the night of his death. In the hours preceding his death, he had been present along with the appellant and other youths at a house party in the area. It appears that both drink and drugs, including ecstasy, were available at the party. The post-mortem on the deceased carried out by the State Pathologist, Professor Harbison, revealed that the deceased had a blood alcohol reading of 89mg% and some small intake of benzodiazepines. The initial report from State Pathologist Professor John Harbison did not refer to the fact that Brian Mulvaney had also consumed ecstasy. At about 1:30am, the appellant and the deceased left the party together to visit a nearby shop, apparently for the purpose of purchasing cigarette papers to roll some joints of cannabis. They were joined by the second and third named accused and, sometime after 2:00am, having been lured by the three to a quiet spot, the deceased was set upon. He broke free from this initial assault and ran about 100 yards before being caught, at which point he was repeatedly kicked and beaten to the head and other parts of the body. A length of timber was also used in the beating. He was found shortly afterwards lying on his back in the middle of the roadway in an unconscious state. His upper clothing had been torn off by his assailants. He was having great difficulty in breathing when first found by witnesses Canny, Connolly and Devine at about 2:30am. He was turned on his side in an effort to facilitate breathing. An ambulance arrived at approximately 2:40am. He was then noted not to be breathing and various efforts to restore breathing failed. The ambulance crew conveyed him to Tallaght Hospital where he was pronounced dead approximately 1 hour later. Professor Harbison noted that the deceased’s lungs had accumulated blood and other fluid and concluded that the source of same in the lower lobes of the deceased’s lungs was due to the facial injuries sustained by the deceased in the course of the assault. These injuries, particularly in the region of the mouth and nose, resulted, in Professor Harbison’s opinion, in the inhalation of blood into the lungs leading to death by asphyxiation. He noted the deceased’s airway from the tongue downwards to the windpipe or trachea and into the lungs contained a mixture of blood and mucus. The deceased’s cough reflex, which might have enabled him to cough up this blood and fluid, was, in Professor Harbison’s opinion suppressed owing to a concussion which in turn had been caused by multiple head injuries suffered during the assault.
The appellant did not give evidence during the trial, nor did he seek in any way to resile from the statement which he subsequently made to the Gardaí at Terenure Garda Station in the presence of his mother on the 11th March, 2000, in which he stated:

“I just want to tell you what happened while my Mam is here. I was at a party and I left the party with another guy. I don’t know this guy. We walked to the Orwell Shopping Centre. There we met Gookie at the Orwell Shopping Centre. The other guy was slagging the Orwell crowd and the area. A fight broke out. The fight started at the back of the church. There was no weapon used during the fight at the back of the church. I was using my fists and my feet on this guy. He got away and we chased him over to the Watercourse. I caught up with him and I began to beat him again. I was using my fists and my feet. I was punching and kicking him. I was kicking and jumping on his head when he was on the ground. I kept kicking kicking. I did not use any weapon I just kept kicking him and jumping on him. Gookie shouted at me to leg it and I just ran and left him lying on the ground. When we were pulling out of this guy his hoodie and top came off. I don’t remember what happened to them. At 21:01 D/Sgt Seamus Quinn enters interview room and shows Brian Willoughby a length of timber. That’s the stick I seen in the attack. Gookie got that stick from somewhere. I am happy that is the stick that was used during the attack on the guy, I kicked and punched. 21:04 D/Sgt Quinn leaves the interview room. I don’t feel that I was responsible for what has happened I just went berserk. I am sorry for his family. This statement has been read over to me and it is correct. I do not wish to change anything.”

While the court will return to the facts of the assault and other evidence at a later point, it should be noted at the outset that at no point either during the party, or thereafter until the time of his death, did the deceased evince any signs of illness, diminished consciousness, erratic behaviour or anything untoward or unusual. On the contrary, the evidence in the case demonstrated that his actions both at the party and from the time he left the party were consistent with those of a normal healthy young man of his age. Indeed on the accused’s own account, the deceased endeavoured to escape the assault perpetrated upon him and was later found to have some defensive injuries to his hands and arms. While he was only pronounced dead on arrival at the hospital, it seems clear that his death took place not long after the assault. Following the arrival of the ambulance on the scene, desperate efforts were made to resuscitate the deceased which included the use of a pump and suction to clear his airways.
The trial of the accused came on in February, 2002, at which point it emerged that further toxicology analysis in respect of the deceased’s blood had revealed that the deceased had ingested a quantity of ecstasy on the night of his death. His post-mortem blood ecstasy level of 2microgram/ml was later stated, in the 2003 trial, by Dr. Bridin Brady, a senior chemist in the State Laboratory, to be a ‘potentially’ fatal quantity. However, that evidence was severely qualified by her when she indicated that many persons could take such a dosage without any significant ill-effects, whereas the same quantity could prove fatal for a susceptible person in certain instances. Equally, significantly higher quantities had not caused death in other cases.
When this issue emerged during the course of the first trial in February, 2002, counsel for all accused insisted upon their entitlement to have some remaining blood samples of the deceased analysed and to seek expert opinion thereon. As that process would take some time, the jury was discharged by the then trial judge, Butler J, and a lengthy adjournment of the case then followed.
In the aftermath of the aborted trial, counsel for all accused collectively decided they would retain an independent pathologist on the issue of causation. Professor Busuttil, a forensic pathologist from Edinburgh in Scotland was then retained by the legal representatives for the second named accused on behalf of all co-accused. It was further agreed between the representatives of the accused that senior counsel for Stephen Aherne would travel to Edinburgh for the purpose of consulting with Professor Busuttil. It was also agreed that Aherne’s counsel would conduct the cross-examination of Professor Harbison on the issue of causation and lead the direct evidence and any re-examination necessary from Professor Busuttil when he gave his evidence at the trial. All of this strategy was put into effect.
From this it can be seen that the accused’s legal representatives were keenly aware of the importance of this issue and had some 13 months within which to conduct all necessary inquiries as to the possible role played by the ingestion of ecstasy in terms of causation.
In the course of his evidence at the re-trial, Professor Harbison did not alter his view as to the cause of death, notwithstanding the new developments which had occurred. He remained of the view that the deceased died of asphyxiation due to the accumulation of blood/fluid in the lower lobes of his lungs emanating from facial/nasal injuries and which the deceased was unable to cough up, owing to his comatose state attributable to head injuries received in the assault. He described three or four of the impacts to the head as having led to concussion and loss of consciousness. Specifically, he ruled out any suggestion that blood in the lower lobes of the lungs could have been caused by drug overdose. He identified the liquid in the lungs as consisting of blood and mucus, the latter being nasal mucus, and was not at trial challenged on this view although Professor Busuttil later in his evidence offered the view that the fluid in the lungs could be attributable to pulmonary oedema.
Professor Busuttil did not disagree with Professor Harbison insofar as the mechanism of death was concerned, namely, that the inhalation of blood while Brian Mulvaney was unconscious resulted in death by asphyxiation. He also agreed that a state of unconsciousness could suppress the coughing reflex which would normally enable a person to cough up blood and fluid in his lungs.
He differed from Professor Harbison however, both as to the cause of unconsciousness and as to the effects of ecstasy consumed by the deceased when taken in conjunction with alcohol and other drugs on the night in question. Insofar as the assault was concerned, no marked damage had been found to the deceased’s brain, nor were there any deep injuries to the facial bones, and in the ordinary course such injuries should not have proved fatal. He later agreed, however, that blows to the head suffered by the deceased could have resulted in concussion and unconsciousness, although he did not feel they would have caused a state of unconsciousness so deep or lasting as to suppress the coughing reflex mechanism. He felt that ecstasy was also a possible contributor to the deceased’s state of unconsciousness having regard to the high level of ecstasy which could directly affect the heart or brain, or both, itself causing unconsciousness and/or death by toxic poisoning. Any abnormality of the heart would also be significant in that it would render a person more susceptible and he noted in the instant case that the deceased’s heart was larger than normal. He was not aware however of any pre-existing heart condition.
He agreed, however, that the level of alcohol present was not great and that the presence of benzodiazepines in this case was not of any major import. He also agreed that if the deceased had not been battered in such a way that he was bleeding from his nose and lips he would not have died, because there would not have been a source for the bleeding which went down the back of his throat as he lay on the ground. He also agreed in cross-examination that he had no details of the actual assault and had not read any statements from the witnesses as to the facts. He further agreed on cross-examination that where a person died from toxic poisoning by ecstasy, one would expect to find evidence of cell death or necrosis of the liver and that no such evidence had been reported in the instant case. Specifically, he agreed with Mr. O’Connell in cross-examination that ingestion of ecstasy does not cause lungs to fill up with blood. He also agreed that there was no evidence of hyperthermia, which is overheating of the body and a central feature of ecstasy deaths, in the present case. He accepted there was no pathological evidence to support a contention that this was an ecstasy death. However, had this been a sudden unexpected death at a party involving a man of this age group who had this level of ecstasy consumption, it would be appropriate to look to ecstasy as the cause of death. A person could lapse into unconscious out of the blue, simply because of the effect of the drug on the brain or heart.
Subsequent to the trial and conviction of the appellant a retired pathologist, Professor Dermot Hourihane, who had apparently followed newspaper reports of the case, contacted the appellant’s solicitor to express concerns as to the cause of the death of Brian Mulvaney. According to the affidavit sworn by the appellant’s solicitor in respect of the application now made to this court to admit new or additional evidence, Professor Hourihane intimated to the appellant’s solicitor that his experience had taught him that blood in the lungs was a classic symptom when ecstasy poisoning had occurred. It appears that this view was communicated to Mr. O’Rourke by Professor Hourihane before he received the documents set out hereunder. They were then sent to him and the documentation included a transcript of the evidence given at trial by Professors Harbison and Busuttil, their various reports, a report of Dr. Van Pelt (a toxicologist and witness for the defence who was not called at the trial), toxicology reports from the State Laboratory and from Beaumont Hospital, Professor Harbison’s statement about ecstasy and it’s effects and the autopsy photographs of the deceased. Thereafter Professor Hourihane also received copies of slides from the State Pathologist’s office which were made from tissues taken during autopsy for histological examination. Professor Hourihane does not appear to have been supplied with a transcript of the evidence heard in the Central Criminal Court, other than the evidence of Professor Harbison and Professor Busuttil. Specifically, he does not appear to have had sight of either the statements or evidence of witnesses who testified as to the behaviour of the deceased at the party or of those who gave accounts of his movements and condition thereafter up to, including, and after the time of his assault, or the accounts given by the ambulance team of efforts to clear the deceased’s airways.
Professor Hourihane, whose qualifications and experience are not in dispute, proceeds in his report dated 7th December, 2004, to set out his findings. His report states how death from ecstasy follows “psychological (sic) changes and altered consciousness”. The most common effect, he states, is excessive sweating and high temperature. These give rise to the pathological changes of heat-stroke, a condition usually found in warm, humid climates, especially after unaccustomed exercise. The changes found are varied, but most often “they are the result of an abnormal state of bleeding with areas of death of groups of cells (focal necrosis) also found (heart, liver, pituitary).”
Autopsy findings from heat-stroke may include swelling of the brain. In Professor Hourihane’s opinion, the bleeding state from heat-stroke may give rise to scattered pin-point haemorrhages (petechiae) and such haemorrhages are most often found in lungs, heart and brain, and when present in the lungs affect the lower lobes predominantly. Blood may also be found mixed with mucus in the larger airways.
Professor Hourihane’s essential point however is the following. The finding of separate alveoli containing blood or oedema fluid is clearly present in the histology slides taken from the deceased and in his opinion is strong evidence for the existence of heat-stroke brought on by ecstasy. In his view, the presence of both would not be expected if the blood had trickled into the lungs from above, nor to his knowledge, is it a feature of pulmonary haemorrhage from other causes. In the instant case he felt there was both abnormal bleeding and in addition to the lung changes, he believed there was some evidence of fresh haemorrhage on the posterior surface of the heart as well as small haemorrhages in the histology slides of brain, myocardium, kidney capsule and pancreas.
Somewhat surprisingly, given the fact that Professor Hourihane was not furnished with critical documentation containing the testimony of other lay-witnesses already referred to, he continues:

“the possibility of inhalation of blood from a cut lip (sic) seems fanciful and unconvincing to me – if it had occurred, as suggested by Professor Harbison, then surely fresh blood would be plentiful in mouth and trachea (windpipe) instead of the small amount of ‘blood and mucus’ as shown in photos 25A and 26A in folder B?”

He went on to say that whether the blood in the lungs originated from the ‘cut lip’, as he felt had been suggested by Professor Harbison and agreed to by Professor Busuttil, or “as I am proposing, arose from bleeding from blood vessels within the lungs, the effect on respiration would be the same, so that asphyxia might follow in either case.
The significance of this is that it may not be possible to say whether petechial haemorrhages in the brain, skull and eyes (orbits) are the result of such asphyxia, or of the bleeding of heatstroke, or of the injuries inflicted to the head of the deceased.”
He also felt that the deceased’s ‘abnormal’ heart size might have been a contributory factor to death due to ecstasy overdose and also noted that the deceased’s thyroid was ‘overactive’, which could also be yet another contributory factor.
Mr. McMahon, Senior Counsel for the appellant, has urged the court to hear this new and additional evidence for the purpose of determining whether or not the conviction arrived at by the jury on the 2nd April, 2003, is safe. He contends that this information was not known to the accused legal team at the date of trial, that the same is credible and from a reputable source and may well have been sufficient, had it been available to the jury, to raise a reasonable doubt as to the cause of death of the deceased.
When the court sat to hear this appeal, copies of a letter dated the 26th January, 2005, written by Professor Busuttil which purported, following some discussion with Professor Hourihan, to address further some of the causation issues, were, without either leave of the court, or, it seems, the consent of the prosecution, simply handed up to members of the court to consider. The letter was not the subject-matter in any way of the Notice of Motion brought herein. The court strongly deprecates the tendering of material in such a fashion and declined to have regard to same.

Relevant Legal Principles
One may commence by stating that the Court of Criminal appeal clearly may hear new or additional evidence in certain circumstances.
Section 33 of the Courts of Justice Act, 1924, as inserted by s.7 of the Criminal Justice (Miscellaneous Provisions) Act, 1997, provides as follows:

“(1) The appeal, in case such certificate or leave to appeal is granted, shall be heard and determined by the Court of Criminal Appeal on –

(a) A record of the proceedings of the trial and on a transcript thereof verified by the judge before whom the case was tried and
(b) Where the trial judge is of opinion that the record or transcript referred to in paragraph (a) of this subsection does not reflect what took place during the trial, a report by him as to the defects which he considers should record or transcript, as the case may be, contains,

With power to the court to hear new or additional evidence, and to refer any matter for report by the said judge.”

This issue was most recently addressed by this court in The People v George Redmond (2004) 1 ECCA.
In that case Mr. Redmond had been tried and convicted on two counts of corruption arising from an alleged payment to him by one Brendan Fassnidge of £10,000 in cash in return for assistance in the purpose of a right of way. Fassnidge alleged he had procured the £10,000 from the Bank of Ireland in Blanchardstown before handing it over to the applicant. The prosecution did not produce the records from the bank in advance of the trial, even though there was an authorisation from Fassnidge and the evidence of a Garda witness was that no records were available. However, in the course of the trial, the bank manager suggested that records were available. The defence, not knowing what the records might show, elected to proceed without seeking sight of the records. After the applicant was convicted the bank records were ultimately obtained and did not support the allegations made by Fassnidge against Mr. Redmond.
In considering whether or not to admit the evidence on appeal, Denham J. stated (at p. 9):

“Counsel for the Prosecution stressed that it was a tactical decision by counsel to proceed with the trial after Mr. Sheeran’s evidence, and having taken that tactical decision the applicant could not now seek to revisit the matter in a different way. While there are, of course, cases where a tactical decision by counsel on behalf of a defendant may preclude him from raising a point in a court of appeal, this is not such a case. In this case, in the course of the trial it became apparent that there was admissible, relevant evidence, the nature and extent of which was unknown. In the circumstances where counsel had previously been given the impression that no such records were in existence, counsel cannot be faulted for not embarking on an inquiry of a witness nor of seeking to have a jury discharged.”

The court went on to adopt and apply the principles with regard to such applications which had been established in The People (at the suit of the Director of Public Prosecutions) v O’Brien (unreported, CCA, 29th January 1990) In that case McCarthy J. in an ex tempore judgment, identified three criteria as to whether or not certain evidence should be admitted as fresh or new evidence:

“Firstly…the existence of such evidence could not reasonably have been known at the time of the trial, secondly that it wasn’t in fact known to the accused or his advisors and, thirdly that it would materially affect the decision.”

While the court in Redmond adopted and applied these principles, it stated that the “three stated criteria are not the sole grounds for allowing in new evidence.”
Denham J. stated (at p.10):

“In this case the court decides the application on a broader basis. In a sense the prosecution knew of the evidence when Mr. Sheeran went and inspected the file and gave evidence mid-trial. Thus, as in O’Brien, it would be incorrect to say it could not reasonably have been known to the defence during the trial. But the circumstances were that it was not disclosed to either side before or initially at the trial. The court considers that it would not be fair if the only remedy available to the applicant was to seek a discharge of the jury and a new trial, in the course of the trial. The applicant is entitled to a fair trial. In the circumstances of this case, the court is satisfied that it could give rise to an injustice if the applicant were not given the opportunity of producing this evidence on the hearing of the application for leave to appeal and accordingly will grant this application.”

Accordingly, it may be seen that the Redmond decision provides a basis for suggesting that even where the three criteria in O’Brien cannot be met, there may still be cases where the requirements of a fair trial demand that new evidence be admitted.
It goes without saying that the public interest requires that a defendant should advance his whole defence at trial and not seek to do so years later. It would subvert the trial process if a defendant were to be generally free to mount on appeal a case which, if sound, could and should have been advanced before a jury. This is particularly the case where it is sought to introduce expert evidence on appeal to support a defence. As is pointed out in Archbold (Criminal Pleading, Evidence in Practice) 2001 Ed, par.7.214:

“There would rarely be a reasonable explanation for failure to call such evidence at trial, for expert witnesses were interchangeable in a way in which factual witnesses were not.”

It is also highly undesirable that the family and relations of a deceased victim of a crime carried out in violent and horrific circumstances should be subjected to any undue prolongation of the criminal process although we recognise that situations can and do arise where that is unavoidable.
A number of English authorities were opened to the court by counsel for the appellant to argue that this court should hear the new evidence.
In R v Lomas 53 Cr. App. R. 256 the appellant had been convicted of murder of his wife. A pathologist gave evidence that the cause of death was due to compression of the neck. He preferred not to call it strangulation because he had never seen a case of death from such a cause with less outward or internal signs of injury. He did however make findings which led him to the opinion that there had been continuous pressure on the deceased woman’s neck maintained for a period of thirty seconds. While the defence had the assistance of an expert pathologist, he was never called. On the hearing of the appeal, the appellant sought leave to call a distinguished pathologist who had been consulted following conviction and who had read the whole of the evidence, consulted with both the prosecution pathologist and the defence pathologist and had seen the neck structures which had been preserved by the prosecution pathologist. As a result of his study, he disagreed profoundly with the prosecution pathologist, stating the there was no evidence to support his view of firm, continuous pressure for at least thirty seconds. He felt that the compression could well have been for a very few seconds only.
The court referred to s.23 of the Criminal Appeal Act, 1968, under which new evidence could be received by it, noting that where such evidence is tendered to the court, it was thereby provided that the court should receive that evidence “unless they are satisfied that the evidence, if received, would not afford any ground for allowing the appeal.” The court noted that the evidence should be received by the court “if it appears to them that the evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal and they are satisfied that it was not adduced in those proceedings but there is a reasonable explanation for the failure to adduce it.”
In the Lomas case the explanation offered to the court of appeal was that the defence only had available to it a relatively inexperienced pathologist who was not prepared to dispute anything in Dr. Hunts evidence.
In deciding in that case to admit the evidence, Fenton Atkinson, LJ. stated (at p.261):

“This court was most reluctant to allow this fresh evidence to be given. The normal case where fresh evidence is tendered and received under this section is on a question of fact, where, for example, some eye-witness or alibi-witness not previously available has later been discovered. Although the section in its terms appears wide enough to embrace fresh evidence of scientific or medical opinion, it seems to this court that only in the most exceptional cases would it be possible to say that there was any reasonable explanation for not adducing such evidence at the trial, and it is said with force by Mr. Inskip that if the defence are content to go into the trial with the somewhat inexperienced pathologist, (a) without asking for an adjournment to secure the assistant of a more experienced pathologist, (b) they should not be allowed in this court to have a second chance. Mr. Inskip asked rhetorically if this application were allowed, where is it to stop?
However, in this case we decided to admit the evidence. We think the appellants advisors took reasonable steps to secure the necessary medical evidence before trial and had from their proposed witness a report which in certain important respects assisted their case, and it was reasonable, particularly with the long vacation about to begin, not to ask for an adjournment to obtain a more experienced pathologist. They could foresee that, when the time came, their expert would find himself unable to disagree in any respect with Dr. Hunt. When defending counsel learned during the prosecutions case that the pathologist whom he had hoped to call could not disagree in any respect with Dr. Hunt, he could have asked for an adjournment, but it would have been unrealistic to have expected him to have done so in the circumstances.
We think further that on the facts of this case, particularly the fact that the injury to the tissues of the neck was so slight, justice required that if the medical opinion of Dr. Hunt on the single point which was the sole foundation for the charge of murder could now be challenged by a pathologist of equal standing, the appellant should be allowed to call such evidence. But just as the Court of Criminal Appeal which allowed fresh medical evidence to be called on appeal in Harding (1936) 25 Cr. App. R. 190 stressed the wholly exceptional nature of the course they took, so we regard this as an exceptional case depending on its own special facts and not as a decision giving any encouragement to similar applications in other cases in the future.”

In Harding, the appellant was convicted of the murder of her infant child in March, 1936, and sentenced to death. Her baby had been drowned in a canal. The appellants case was that she had fainted while feeding the baby and when she came to she realised the baby had rolled into the water from the canal bank. The new evidence which was allowed on appeal was evidence to the effect that the post-mortem condition of the infants body was compatible with death from shock due to water suddenly going up the nostrils, and that that could have happened if the infant had fallen from the appellants arms and rolled down the bank into the canal. Hewart L.C.J. stated (at pp.196-197):

“The question for this court to consider is whether, if that evidence had been given before the jury, it might have had the effect of raising in the minds of the jury a reasonable doubt. The function of the prosecution is, of course, to establish the case beyond a reasonable doubt. If it fails to fulfil that condition, the prisoner is entitled to be acquitted. The burden of proof is never upon the prisoner. Acquittal must follow if the evidence is such as to cause a reasonable doubt, because that is only another way of saying that the prosecution had failed to establish the case.
Looking at this evidence with care and recognising the force of the rest of the evidence in this case, we are clearly of the opinion that, if this evidence had been offered in the court below, there might have been upon the part of the jury a reasonable doubt as to the guilt of the appellant; or, to put it in another way, we cannot say that, if that evidence had been offered, the jury must inevitably have come to the same conclusion. In those circumstances the only conclusion which is possible for this court is to say that the appeal must be allowed, and the conviction quashed.”

The court, however, stressed that there were exceptional circumstances in that particular case.
It is also extremely important in the context of an application of this nature, as noted by the court in Harding, to look at the rest of the evidence so that the proposed new evidence can be properly evaluated in that context.
This must be particularly so when, in a case such as the present one, there are multiple accounts available to the court of trial as to what occurred on the night of the fatal assault, and as to the movements and activities of the deceased Brian Mulvaney up to and including the time of his death shortly after the assault.
On behalf of the prosecution, Mr. O’Connell S.C. has placed considerable reliance on the decision of the Supreme Court in The People (DPP) v Cunningham 2 IR (2002) 712.
This was a case where the Court of Criminal Appeal certified, pursuant to s.29 of the Courts of Justice Act, 1924, that its decision involved a point of law of exceptional public importance for determination by the Supreme Court to determine whether the Court of Criminal Appeal, in hearing an appeal against the severity of a sentence, is strictly limited to considering the stated facts existing at the date when the sentence was imposed or may it receive evidence relating to events or facts subsequently occurring. The court was clearly of the view that it should not receive such evidence.
Mr. O’Connell referred this court to the following passage from the judgment of Hardiman J (at p. 738):

“The Supreme Court, like the Court of Criminal Appeal, does not ordinarily hear fresh evidence but has power to do so under order of O.58 R.8 of the Rules of the Superior Courts. The way in which this jurisdiction is exercised in illustrated in such cases as Lynagh v Mackin (1970) IR 180 and Murphy v Minister for Defence (1991) 2 IR 161. Finlay CJ. In the second of these cases stated the matters which an accused seeking to introduce further evidence must show as follows at p. 164:
‘(1) the evidence sought to be adduced must have been in existence at the time of the trial and must have been such that it could not have been obtained with a reasonable diligence for use at the trial
(2) the evidence must be such that if given it would probably have an important influence on the result of the case, though it need not be decisive.
(3) the evidence must be such as is presumably to be believed or is apparently credible, though it need not be incontrovertible.’
The first and most basic of these requirements, that the evidence must have been in existence at the trial, in my view applies to an appeal to the Court of Criminal Appeal also and arises from the fundamental nature of an appeal on the note as opposed to an appeal by oral rehearing. This requirement may not apply to a ‘new or newly discovered’ fact relied upon for the purpose of an appeal pursuant to section 2 of the Criminal Procedure Act, 1993. That section, however, has no application, in the present case.”

These requirements differ subtly from the criteria laid down in The People (DPP) v O’Brien, which emphasise absence of knowledge on the part of the appellant of the proposed additional evidence, whereas the criteria in Cunningham focus more on the requirement to establish that the evidence was in existence at the time of the trial and must have been such that it could not have been obtained by the exercise of reasonable diligence for use at the trial.
This court has some doubt as to whether Cunningham is entirely appropriate to a case where leave is sought to introduce new or additional evidence to suggest that a conviction is unsafe. Cunningham was concerned exclusively with the jurisdiction of the Court of Criminal Appeal when reviewing a sentence and, as the quotation from Hardiman J. amply demonstrates, the Supreme Court took the view that the jurisdiction of the Court of Criminal Appeal was circumscribed in that regard because it’s function in reviewing a sentence was to do so on the trial note only and to decide whether or not there had been any error of principle. While Hardiman J. describes Finlay CJ. in Murphy v The Minister for Defence as setting out matters which an “accused” must show when seeking to adduce fresh evidence, that particular case, as is clear from following paragraphs, was a case where the plaintiff was claiming damages for a back injury. The court in Murphy restated (with some minor alterations) the principles already set out in Lynagh v Macken (1970) IR 180, which was also a civil case and which in turn was based on the three conditions elaborated by Lord Denning in Ladd v Marshall (1954) 1 WLR 1489, also a civil case
It seems to us that the criteria identified in O’Brien are more apposite when considering an application to introduce fresh evidence in an appeal against conviction in a criminal case. The principles are similar to those found to be appropriate by the Court of Criminal Appeal in England in R v Parks (1961) 3 All ER 633, where Lord Parker, CJ. summarised the principles in the following way (at p. 634):
“First, the evidence that it is sought to call must be evidence which was not available at the trial. Secondly, and this goes without saying, it must be evidence relevant to the issues. Thirdly, it must be evidence which is credible evidence in the sense that it is well capable of belief; it is not for this court to decide whether it is to be believed or not, but it must be evidence which is capable of belief. Fourthly, the court will after considering that evidence go on to consider whether there might have been a reasonable doubt in the minds of the jury as to the guilt of the appellant if that evidence had been given together with the other evidence of the trial.”
The court also noted:

“it is only rarely that this court allows further evidence to be called and it is quite clear that the principles on which this court acts must be kept within narrow confines, otherwise in every case this court would be asked in effect to carry out a new trial.”

This must be seen as an extremely important consideration, given that the Court of Criminal Appeal in A.G. v Kelly (1) IR (1937) 315 made it clear that where the court orders that fresh evidence be heard by that court as part of, and before determining, the appeal, it would give leave also to the State to cross-examine witnesses and to submit rebutting evidence.
Drawing these various strands together, it seems to this court that the following principles are appropriate to an application to introduce new or fresh evidence in the Court of Criminal Appeal:
(a) Given that the public interest requires that a defendant bring forward his entire case at trial, exceptional circumstances must be established before the court should allow further evidence to be called. That onus is particularly heavy in the case of expert testimony, having regard to the availability generally of expertise from multiple sources.
(b) The evidence must not have been known at the time of the trial and must be such that it could not reasonably have been known or acquired at the time of the trial.
(c) It must be evidence which is credible and which might have a material and important influence on the result of the case.
(d) The assessment of credibility or materiality must be conducted by reference to the other evidence at the trial and not in isolation.

Application of Legal Principles to the Facts of the Case
The court accepts that the particular interpretation given by Professor Hourihane to the pathology and histology findings in this case was not known to the accused’s legal representatives at the date of trial.
The court, however, is surprised, to say the least, that they did not have such knowledge.
In this case, there had been a traumatic and highly publicised trial in February, 2002, which collapsed on the very issue of the role played by ecstasy in the matter of the causation of death of Brian Mulvaney. The critical importance of exploring the role, if any, which ecstasy may have played in his death was thus glaringly obvious from February, 2002. An interval of some 13 months then elapsed before the retrial took place. On any view, that was ample time within which to research this issue thoroughly, completely and exhaustively. The question as to whether fluid found in the deceased’s lungs was injury- induced or present in the lungs for some other unconnected reason was clearly a matter which could have been canvassed with Professor Busuttil in consultation or correspondence and was a matter actually touched upon by Professor Busuttil when giving his evidence.
There is no suggestion whatsoever in the report of Professor Hourihane that in forming his opinion he is bringing to bear any new scientific or medical knowledge or insight which was unavailable at the time of either trial. On the contrary, the references cited by Professor Hourihane at p.7 of his report include studies published in the 1980’s and 1990’s, and indeed in one case (in relation to ‘heatstroke’), 1946.
Could, therefore, the view now expressed by Professor Hourihane have been obtained at time of trial either from him, or some other expert in the field, by the exercise of reasonable diligence and on making full and comprehensive enquiries? In our view, it could. There is no suggestion that there was any impediment in the way of acquiring this information. The fact that Professor Hourihane came forward by happenstance does not mean his views or opinions are either inaccessible, unusual or out of kilter with well recognised and readily available medical or scientific understanding. Indeed they are offered by Professor Hourihane as being part of such established medical and scientific knowledge.
The application accordingly fails one of the essential limbs of the test elaborated in the authorities.
Furthermore, the court is quite satisfied that nothing in the proposed evidence of Professor Hourihane would have made, in the words of O’Brien, a ‘material difference’, or, to put it another way, it could not in our view have raised a reasonable doubt in the minds of the jury on the issue of causation. In isolation or in a general sense Professor Hourihane’s views may be credible, but in our opinion are not capable of being seen as such having regard to the particular meaning of ‘credibility’, seen, as it must be, in the context of the facts of this case and the totality of evidence.
At the outset, the court would wish to stress that Professor Hourihane acted from entirely proper motives and is far removed from the ‘officious busybody’ or ‘meddlesome crank’ who may occasionally come forward with some esoteric view about a case. The court accepts that he acted as he did from well-intentioned concern to see that no injustice occurred in this case.
However, his report seems to us to have been compiled in something of an evidential vacuum, in that he lacked the critical accounts of lay-witnesses, including fire and ambulance crew, who saw Brian Mulvaney on that night. Those witnesses included both those attending the party, and also Nicola Canny, Damien Devine, Gerard Connolly and Gillian McGuinness, all of whom gave graphic evidence about the position of Brian Mulvaney’s body when he was first found, lying face up on his back with extensive bleeding from his facial injuries. To describe the deceased’s facial injuries simply as a ‘cut lip’ grossly understates the severe injuries described in detail by Professor Harbison. Professor Harbison’s report refers to a ‘cut lip’ but from his evidence we know that this was more than an ordinary cut lip – it was a deep and extensive laceration which was accompanied by other nasal and facial injuries. They were injuries likely to cause extensive, as distinct from slight, bleeding. Christopher O’Reilly from the ambulance team also described the considerable efforts made to clear the deceased’s airways by methods which included bagging and suction applied to the mouth, which said efforts resulted in the extraction of blood therefrom. This evidence showed there was blood in the deceased’s mouth and/or trachea. In not having this evidence, Professor Hourihan’s opinion must be seen as seriously open to question. It was all vital on the issue of causation. So also was the evidence of Garda Stack who at 2:15am drove past the location where the deceased’s body was found at 2:30am but saw neither the deceased or his attackers, thus tying the time of the assault and the breathing difficulty from blood and fluid in the lungs into the closest imaginable temporal proximity.
This is emphatically not a case where the deceased collapsed at a party where ecstasy was in plentiful supply, nor is it a case where at any time prior to the horrific assault which was perpetrated upon the deceased did he evince the slightest sign of being unwell. On the contrary, he was able to walk some distance to a shop, come away from same, endeavour to elude or escape his attackers and put up such resistance as he could, suffering as a result some defensive injuries to his hands and arms. The facial injuries suffered by the deceased seem clearly from the accounts of witnesses to have resulted in very significant bleeding which, having regard to the position of his body in the aftermath of the assault, could only have resulted in the inhalation of substantial quantities of blood. Professor Harbison has characterised any other fluid in the deceased’s lungs as mucus from the nasal cavities and was not, as has already been pointed out, challenged at trial on this opinion. The unfortunate deceased suffered multiple injuries with both lacerations and abrasions to the face and head and nobody either at the trial or since has suggested they were not such as were sufficient to bring about a loss of consciousness, even if they did not involve major fractures to the skull or facial bones. Further, we have been shown photographs of the deceased’s facial injuries which clearly suggest that the head and facial injuries were likely to have caused extensive bleeding, as was indeed confirmed to be the position by those first to arrive on the scene in the aftermath of the assault. The deceased had stopped breathing, had an extremely low pulse and was effectively dead when the ambulance crew arrived within a short time of this assault, so that everything points to and supports Professor Harbison’s view that the assault caused unconsciousness and suppression of the coughing response resulting in death by asphyxiation in this case.
For Professor Hourihane to be correct it would require the occurrence of a truly remarkable coincidence whereby the ecstasy poisoning contended for, or lung haemorrhage caused by ecstasy, occurred at precisely the same time as this vicious assault. The odds against such an event are, we would think, enormous. We do not believe Professor Hourihane’s contribution, however well-intentioned, can be seen as sufficiently ‘credible’ (giving the word its meaning in the particular context) to raise any doubt, yet alone a reasonable doubt, in the minds of the jury as to the cause of death in this case. A remote possibility is not in this regard to be equated with a reasonable doubt.
The Report dated 24th February, 2003, of Dr. van Pelt, which, very properly, has been disclosed to the court on the making of this application on behalf of the appellant, fortifies us in the conclusions we have reached. Dr. Pelt is a lecturer in toxicology/biochemical pharmacology in University College Cork. In his report he states:-

“… I have performed a thorough search of the scientific literature in relation to ecstasy related deaths and their causes (including the combination of ecstasy and cannabis and/or alcohol.) Around the time of death, Mr. Mulvaney did have a substantial concentration of MDMA (ecstasy) in his blood. However, in my view, there exists no link between the amount of ecstasy in the blood and the reported cause of death, i.e. blood in the lower lobes of both lungs based on the assessment of the available information.”

Accordingly, the court will refuse the application to hear or receive this additional evidence.
Other Grounds of Appeal
Essentially two other grounds of appeal arise in this case, being –
(a) Excessive intervention by the trial judge during the course of the evidence of Professor Fitzgerald, and
(b) The alleged failure on the part of the trial judge to adequately direct the jury that even if they found the accused was not insane at the time of the killing, they could nonetheless find that he did not have the necessary intent to found a conviction of murder by reason of his disturbed mental state at the time of the killing

(a) Interventions by the trial judge
It is submitted on behalf of the appellant that when the trial judge questioned Professor Fitzgerald at the close of his cross-examination by the prosecution, the trial judge went beyond mere clarification for the jury, but rather his questions amounted to conducting the case on behalf of the prosecution.
Having carefully perused the transcript of the entirety of Professor Fitzgerald’s evidence and the trial judge’s charge to the jury in respect of such evidence, we do not believe the trial judge went beyond what is permissible.
It goes without saying that judges must exercise restraint when making interventions and must not descend into the arena.
Archbold (Criminal Pleading, Evidence in Practice) 2001, has the following to say on this topic (at par.7-81):

“Interventions by the judge during the trial will lead to the quashing of a conviction: (a) when they have invited the jury to disbelieve the evidence for the defence in such strong terms that the mischief cannot be cured by the common formula in the summing up that the facts are for the jury, and that they may disregard anything said on the facts by the judge with which they do not agree; (b) when they have made it impossible for defending counsel to do his duty; (c) when they have effectively prevented the defendant or a witness for the defence from telling his story in his own way.”

In our view none of these considerations arise in the instant case.
Firstly, the questions put to the witness by the trial judge came at the conclusion of that witness’s evidence. This is the normal and appropriate time for a trial judge to clarify any point in evidence which he regards as being necessary. There was absolutely no question of the trial judge preventing Professor Fitzgerald from telling his story or giving his evidence in his own way.
When the appellant’s counsel raised an objection to the sequence of questions asked by the trial judge, he immediately desisted from asking any further questions and offered to both sides the opportunity of further questioning Professor Fitzgerald in respect of the matters he had by conversed with the witness. This offer was availed of by the appellant’s counsel.
The court was referred to the decision of the Court of Criminal Appeal in The People (DPP) v Scanlon CCA No. 25 of 1983 where a conviction was quashed for reasons which included, inter alia, interventions by the trial judge during the evidence.
This was a rape case where the only evidence capable of establishing that it was the accused who raped the complainant was a palm print found on the window of the room in which the rape occurred. The court noted the supreme importance of the evidence of the identification of the palm print and ruled that the interventions by the learned trial judge in both the direct evidence and the cross-examination of the technical witness proving the identification of the palm print was so extensive as to impede the proper cross-examination of this witness on behalf of the accused and constituted an unsatisfactory element in the trial. The court further noted that the accused was extensively questioned by the learned trial judge when he was giving evidence on his own behalf. The extent and nature of this questioning was such as might have conveyed to a jury a strong element of disbelief by the trial judge of some of the evidence given by the accused. Notwithstanding proper warnings subsequently given as to the exclusive right of the jury to assess the facts in the case, the Court of Criminal Appeal felt the interventions could have led to an unsatisfactory element in the trial.
This brief resumè indicates that the Court of Criminal Appeal will not, and should not, intervene to quash a conviction unless the interventions are so pointed and persistent as to create a real risk of seriously influencing the jury. We are satisfied that the trial judge, who undoubtedly pressed Professor Fitzgerald quite strongly in the course of his questioning, did not in our view exceed the bounds of what is permissible when so doing.
In the course of his charge in summing up to the jury the learned trial judge repeatedly emphasised to the jury that the facts of the case and the assessment of witnesses was entirely a matter for them. We note that no requisitions were raised at the conclusion of the charge to the jury to suggest that the trial judge had mis-characterised Professor Fitzgerald’s evidence or belittled it in any way.
We reject this ground of appeal.
(b) The alleged failure on the part of the trial judge to direct the jury as to intent
The defence offered by the appellant to charge of murder at the trial was that of insanity. To that end, the defence called a psychiatrist, Professor Fitzgerald, and the mother of the accused, Mrs. Teresa Willoughby. Professor Fitzgerald had known the appellant for many years and had been professionally involved in endeavouring to assist the appellant with a variety of personality problems and difficulties which included Attention Deficient Disorder, Hyperactivity, Impulsivity and Aggression. Mrs. Willoughby gave confirmatory evidence in this regard and dealt in particular with the appellants disturbed mental state and extreme behavioural patterns which were evident, in particular, in the week leading up to the night in question. The State in turn called its own psychiatrist, Dr. Cleo van Velsen who, while she accepted that the appellant had a mental disorder, was of the view that he was capable of knowing the nature and quality of his actions and of distinguishing right from wrong.
The jury rejected the case on insanity, by inference at least preferring the evidence of Dr. van Velsen to that of Professor Fitzgerald.
There is no real complaint on behalf of the appellant as to the adequacy of the trial judge’s charge to the jury as regards the definition of insanity, or the onus of proof in establishing same. Mr. McMahon on behalf of the appellant submits however that the trial judge failed to adequately direct the jury that, if they were to reject the defence of insanity, they should nonetheless pay particular regard to evidence of his disturbed mental state of mind at the time of the killing to determine whether or not he had the necessary intent to found a conviction for murder.
Counsel does not dispute that in the opening portion of his charge to the jury, the learned trial judge adequately defined the offence of murder under s.4 of the Criminal Justice Act, 1964, and explained to the jury that while there was a statutory presumption that an accused person intended the natural and probable consequences of his action, the onus of proving beyond a reasonable doubt that the presumption was not rebutted at all times remained on the prosecution. Nor does Mr. McMahon dispute that the trial judge made it clear, in this portion of his charge at any rate, that the jury were to bring to this assessment a subjective test to determine whether the accused acted with an intention to kill or cause serious injury.
Thus, it was submitted, on reviewing the evidence as to the applicant’s mental state, the trial judge should have dealt with it firstly when defining the offence of murder under s.4 of the Criminal Justice Act, 1964, and then, secondly, in relation to the special defence raised of insanity. All this was done but, Mr. McMahon submitted, it behoved the trial judge to draw the jury’s attention thereafter to:
(i) The necessity to be satisfied by the prosecution that notwithstanding evidence as to the applicant’s mental state, he had the capacity to form the requisite intent for murder. If not, the verdict should be manslaughter.
(ii) The fact that this issue was a question independent of whether the defence had satisfied them on the balance of probabilities that the applicant was legally insane at the time of the killing.
Mr. O’Connell in response to this submission focused on arguing that under this ground of appeal Mr. McMahon was effectively endeavouring to introduce a defence of diminished responsibility or flawed intent as a defence to murder. Both suggestions had been emphatically out-ruled, the first by the Supreme Court in The People (DPP) v O’Mahony (1985) IR 517 and the latter by the Court of Criminal Appeal in The People (DPP) v Reddan and Butler (1995) 3 IR 560. In Reddan, Blayney J. had stated (at p.569):

“when a person is charged with an unlawful killing and the actual killing is not denied only two defences are possible: provocation, which would have the effect of reducing the offence to manslaughter, and insanity, which would result in a finding that no crime had been committed at all (see The People (DPP) v O’Mahony (1985) IR 517). Mr. MacEntee does not seek to rely on either of these defences but submits there are degrees of intent, and that if the jury was satisfied that the intent of his client was flawed, she should be found guilty of manslaughter only and not murder. The court is satisfied that no such defence exists in law.”

The court feels that the response of prosecution counsel is not really meeting the point raised by Mr. McMahon, but is rather addressed to other points which were not made.
Essentially, what Mr. McMahon is submitting is that the jury should have been warned that, even if they rejected the defence of insanity, they should nonetheless have had regard to all the evidence tendered as to the accused’s mental state to determine whether or not he had the requisite specific intent to found a conviction for murder.
This court is not satisfied that the trial judge failed to give an adequate direction to the jury as suggested. In the course of a lengthy charge the trial judge comprehensively explained the ingredients of murder and manslaughter and the requirement to establish intent in the case of the former. At p.37 of his charge on 1st April, 2003, White J. stated in relation to the offence of murder:

“…the State must establish….that that person intended to kill or cause serious injury…”
“There are, as I say, four possible – I do not think I have already said that there are three possible verdicts in respect of each accused. In relation to Mr. Willoughby, the possible verdicts are, guilty of murder, guilty but insane, guilty of manslaughter, or not guilty. There are four possible verdicts in relation to Mr. Willoughby. I would remind you that the onus of proof in relation to murder and manslaughter rests on the prosecution, that in relation to a possible verdict of guilty but insane, the onus of proof rests upon Mr. Willoughby, but it is on the balance of probabilities and not beyond a reasonable doubt.”
This direction followed almost immediately after an exhaustive and meticulous resume of the accused’s entire psychiatric history. On the jury being recalled the judge further instructed them (at p.63):
“What I mentioned in relation to the three accused, there are circumstances where, in relation to each of them, you might come to the conclusion that the State has either failed to show the necessary causation for death or the necessary mental intent, and in those circumstances, you could have a situation where there is no intent and you could reduce the murder to manslaughter if it caused a death or serious injury. If it is causing death or a serious injury, you could bring in a manslaughter.”

On the jury being further recalled on 2nd April, 2003, the judge gave further directions on the distinction between murder and manslaughter, focussing once more on the issue of intent. No requisition as to the adequacy of the charge in relation to intent or on any aspect of the judge’s charge was made by or on behalf of the appellant
We are satisfied that the learned trial judge’s summing up was more than adequate to meet any requirements of the case and that the medical or psychiatric evidence was spelled out in sufficient detail to allow the jury consider fully the entire issue of intent. Further we do not believe it was necessary to sub-divide and compartmentalise these matters in the manner suggested under this ground of appeal
The court will accordingly dismiss the appeal herein.