Irish Court of Criminal Appeal

Judgment Title: D.P.P.-v- Desmond Dundon & Others

Neutral Citation: [2007] IECCA 64


Court of Criminal Appeal Record Number: 17/04, 28/04, 25/04, 26/04 & 27/04

Date of Delivery: 25 July 2007

Court: Court of Criminal Appeal

Kearns J.
Dunne J.
McGovern J.

THE COURT OF CRIMINAL APPEAL

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

AND

ANTHONY MCCARTHY, CHRISTOPHER COSTELLO, DAVID STANNERS, JAMES MCCARTHY & DESMOND DUNDON

JUDGMENT of the Court delivered by Mr. Justice Kearns on the 25th day of July, 2007


BACKGROUND FACTS
At around 9 p.m. on the night of 29th January, 2003, Kieran Keane, a notorious Limerick gangland figure, was shot dead with a single bullet to the head on an unlit country road at Drombanna outside Limerick. His nephew, Owen Treacy, who with Kieran Keane had been abducted earlier that evening, suffered multiple stab wounds at the same location and was left for dead on the side of the road by three assailants whom he subsequently identified as David Stanners, James McCarthy and Christopher Costello, being three of the applicants herein. At the end of the trial which commenced on 4th, November, 2003 at the Central Criminal Court sitting at Cloverhill Courthouse in the County of Dublin and concluded on 20th December, 2003, all five applicants were found guilty of the murder of Kieran Keane, the attempted murder of Owen Treacy and the false imprisonment of both Kieran Keane and Owen Treacy. None of the applicants gave evidence and there was no issue which the jury had to resolve about bad character in relation to either Owen Treacy, who was the main prosecution witness, or any of the applicants. The learned trial judge refused leave to appeal and the matter comes before this Court by way of application for leave to appeal.
The events giving rise to the prosecution covered a four hour period on the evening of 29th January, 2003 commencing shortly before 7 p.m. On that evening Owen Treacy went with his uncle, Kieran Keane, to the home of the mother of Anthony McCarthy, one of the applicants herein, at an address known as 5, Fairgreen. Kieran Keane was driving a Passat motorcar, a vehicle which Owen Treacy described in evidence as “hot”, indicating that the police might stop this vehicle on sight. Indeed, within minutes of leaving the home address of Owen Treacy, it appears that two passing gardaí did spot the vehicle, attempted to follow it, but lost it fairly quickly. On arrival at Fairgreen, the Passat was carefully parked where it would not be seen by any passing garda vehicle, and the two men then walked the short distance to 5, Fairgreen. Just outside this property, they met a Mr. Galvin who was reversing a silver Micra car onto the driveway of Fairgreen. On entering the house, Kieran Keane and Owen Treacy were confronted by Anthony McCarthy (otherwise known as “Noddy” McCarthy) who was carrying a handgun. In his company was the second applicant, Desmond Dundon. Dundon produced a mobile phone and asked Kieran Keane to call two other men, the Collopys, who also lived locally and were known to be associates of Kieran Keane in the context of ongoing gangland feuding in Limerick City. Kieran Keane refused to comply with that request which was repeated on a number of occasions. The two men were detained at 5, Fairgreen for about an hour, during the course of which Desmond Dundon secured their hands behind their backs with tape and hoods were placed over their heads. In relation to Owen Treacy, he maintained the hood which was placed over his head was made of a fabric which had lots of holes, so he could see through it. Whilst being so detained, two men wearing balaclavas appeared from the kitchen. Owen Treacy recognised one of these men as the applicant, David Stanners (otherwise David “Frog Eyes” Stanners).
After about one hour during which Kieran Keane continued his refusals to call the Collopys, both men were placed into the boot space of the Micra car which was on the driveway. The applicant Anthony McCarthy drove the motorcar with Mr. Galvin in the front passenger seat. Both Mr. Keane and Mr. Treacy were hooded and bound and concealed in the boot of the car during the course of a short journey to an address at 79, Roundwood, which was the address of Mr. Galvin’s mother. The car was parked inside the garage adjoining the property. Desmond Dundon, who had obviously arrived at the property separately, was there to greet the car as it arrived. Messrs McCarthy, Galvin and Dundon took Messrs Keane and Treacy upstairs in the premises. Anthony McCarthy still had the handgun at this stage. Repeated requests were made to call the Collopys, all of which were refused. At some stage during this interrogation, the hoods were removed. Also, at some unspecified stage, some six stabbing or torture type wounds were inflicted to the left side of Kieran Keane’s head.
At some time before 9 pm a Hiace van arrived and parked on the driveway. Both Kieran Keane and Owen Treacy were placed in the back of this van and driven away. The other occupants of the van were David Stanners, James McCarthy and Christopher Costello. David Stanners was the driver. At this stage Mr. Costello had taken possession of the handgun believed to be the same handgun which Anthony McCarthy had held earlier. At a certain stage during this journey, a blanket was placed over both men in the back of the van. The drive took about 25 minutes before stopping in a quiet country lane in an area known as Drombanna.
Mr. Keane was then taken from the rear of the van, forced to the ground and shot once in the head by David Stanners. In the immediate aftermath of the execution, Owen Treacy was stabbed by both David Stanners and Christopher Costello. He was stabbed some seventeen times and left for dead at the scene. However, Mr. Treacy, although bleeding from his various wounds, made himself known to the occupants of a local house nearby and at about 9.30 p.m. the gardaí were called.
On arrival of the emergency services, Mr. Keane was pronounced dead at the scene and Mr. Treacy was taken to a local hospital. Later that same evening, the gardaí stopped a Volvo motorcar leaving Limerick en route to Dublin. The car contained three men, Anthony McCarthy, Desmond Dundon and the aforesaid Mr. Galvin. All gave false names to the gardaí and later enquiries revealed that all three men had travelled to England. On 28th March, 2003 in Kilkenny, Anthony McCarthy and Desmond Dundon were arrested. False names were given to the gardaí, supported in the case of Anthony McCarthy by a medical card in the false name that he used. A garda officer noted that Mr. McCarthy had apparently dyed his hair.
When interviewed, Anthony McCarthy accepted that he knew both Kieran Keane and Owen Treacy. He accepted and confirmed that both had indeed visited him at 5, Fairgreen on the evening of 29th January. He claimed in interview that the principle reason for the meeting was at the request of Mr. Keane who wished to encourage Mr. McCarthy to buy back some horses that had gone missing and were causing some concern. Mr. McCarthy in interview by the gardaí denied any suggestion of false imprisonment, possession of a firearm and disputed the entirety of Mr. Treacy’s account as revealed to him by investigating officers during his numerous interviews.
Mr. McCarthy volunteered that, at the conclusion of the meeting with Mr. Keane and Mr. Treacy, Mr. Treacy asked to borrow the Micra car from Mr. Galvin as the Passat was wanted by the gardaí. Mr. McCarthy suggested that Mr. Galvin consented to the loan of his car. Mr. McCarthy explicitly denied that he drove the car to 79 Roundwood, and during the course of the interviews suggested that on the evening in question, that he, Desmond Dundon and Mr. Galvin had walked to a local petrol station where they had met a man he knew as Barry Fitzgerald, who was driving a large white van and who had given them a lift from that location. Mr. Anthony McCarthy urged the police to obtain the CCTV recording from the garage forecourt which, he claimed, would establish that Owen Treacy was lying as regards the drive to Roundwood, if not also as regards his entire account.
The gardaí obtained possession of the CCTV recording which did indeed indicate a white van on the forecourt of the garage at the time suggested. The same was the property of a Mr Barry Fitzgerald, who had returned to England and who at the time had been visiting his family in Limerick. Mr. Fitzgerald was called as a witness for the defence at the trial and gave evidence that he was approached on the forecourt on the evening in question by Anthony McCarthy, whom he had known for years, and two other men, Desmond Dundon and Mr. Galvin and gave all three a lift to some other location in the city.
It emerged at trial that the quality of the CCTV video was extremely poor and did not permit the identification of any person in relation to the van on the occasion where it was noted to be in the garage forecourt.
In separate interviews, David Stanners asserted that on the night in question he was in Cratloe at 9.30 p.m. on the evening in question. He admitted only to owning a balaclava.
Both James McCarthy and Christopher Costello asserted they were both watching a football match between Liverpool and Arsenal in a house at 66, College Park during the events complained of. They also informed the gardaí that they joined in a celebratory party that night in the house in question.
While the prosecution based its case almost entirely on the evidence of Owen Treacy there was other evidence available to the jury in support. A Nike cap which Owen Treacy had owned and was wearing on the night of the murder was found by the gardaí on a table in the dining room in Fairgreen. A pillowcase found at Roundwood was found to have ducting tape on it which was from the same roll of tape as that used to bind the hands of Kieran Keane. Blue and red fibres from Kieran Keane’s jumper were found on cushion covers at Fairgreen. A single grey polyester fibre from the jeans worn by Kieran Keane matched those on the rear of the backseat of the Micra. Fibres from a couch at Fairgreen were found on a pillowcase at Roundwood. A civilian witness, Zeta Penny saw the Hiace van backed up and almost into the garage at Roundwood at the time Owen Treacy said that he and Kieran Keane were being held inside.
The prosecution chose not to put any form of motive for the killing and attempted murder before the jury. However, at various points during the defence cross-examination of Owen Treacy, reference was made to the history of gang violence in Limerick, which however was limited as follows:-
(a) At the time of the murder of Kieran Keane, the two Ryan brothers were missing having been kidnapped at gunpoint in Limerick a few days earlier.
(b) Kieran Keane had fallen out with the Ryan family in the past.
(c) Two members of the Ryan family had been murdered, namely Edward and John Ryan.
(d) Christy Keane, Kieran Keane’s brother was serving ten years for drug related offences.
(e) The murder of Kieran Keane was gang related.

No issue arose during the case but that the relevant backdrop to the events of the night in question was the ongoing gang related violence in Limerick. The topic of the Keane/Ryan feud and the consequences of it had been a matter of public debate both before, during and after the trial.
Multiple grounds of appeal were consolidated by the legal teams acting for the various applicants before this appeal began. The court will deal with these issues in the sequence in which they were argued before the Court.



DISCLOSURE

In the course of the appeal herein, though not at the trial itself, it was alleged on behalf of the applicants that the prosecution had failed to make full pre-trial disclosure to the defence. It was argued that, in the light of information gleaned from further disclosure made available in the context of the appeal to this Court, a different decision as to defence strategy might have been adopted had that information been available before trial. The decision actually made was to suggest that Owen Treacy was an accomplice in the murder of Kieran Keane. The alternative strategy, it was suggested, was one whereby an all-out attack on the character of Owen Treacy could have been attempted with a view to undermining his credibility as the chief prosecution witness. It was argued that the prosecution permitted Owen Treacy to present himself to the jury as an ‘innocent breadman’ who had no involvement in organised crime or gangland feuding.
To properly understand this complaint, it is necessary to trace in some detail the history and context in which disclosure was sought in this case.
On 30th July, 2003, the applicants were returned for trial to the Central Criminal Court. By letter dated 5th August, 2003, the solicitors then acting for four of the applicants wrote to the Chief Prosecution Solicitor (CPS) requesting full disclosure under various headings and warning that an adjournment of the trial would be sought if disclosure was not made or not made in timely fashion. The material sought included, inter alia, all notes/ memoranda of interviews taken in the course of the garda investigation of the Ryan/Keane/Collopy/McCarthy feud in Limerick. By letter dated 3rd September, 2003, the CPS indicated that some eleven volumes of material together with details of previous convictions of all accused and all prosecution witnesses would shortly be furnished.
It appears that during that month an initial tranche of disclosure with an index to appendices was furnished by the CPS to the various defence solicitors. It is not in dispute that full and correct information as to Owen Treacy’s previous convictions, including one for possession of a firearm, was furnished to all applicants at this early point in time.
The firm of Michael E. Hanahoe (Hanahoes) came on record for Anthony McCarthy at the end of September. On 2nd October Mr Robert Purcell of that firm wrote to the CPS with certain specific requests for information. With a replying letter dated 9th October, 2003, the CPS furnished to all defence solicitors four bundles of documents consisting of notes, memoranda of interviews and statements taken in the course of the garda investigation into some 23 incidents connected to the ongoing feud in Limerick between the Ryan,Keane,Collopy and McCarthy families between 2000 - 2003. The material disclosed that Owen Treacy was suspected of involvement in four of these incidents, one of which related to the abduction of the Ryan brothers on 23rd January, 2003.
The letter also stated:-
“Please note that there are memos of interviews and statements taken from seven individuals in connection with the alleged abduction of Kieran Ryan and Edward Ryan on the 23rd January, 2003, which have not been disclosed. Please note that it is the opinion of the prosecution these documents are not relevant to the investigation into the alleged murder of Kevin (sic)Keane nor do they undermine the prosecution case nor assist the defence case. In particular, please note that in respect of one of the individuals the prosecution is of the belief that disclosure of his memos and statements would result in the loss of his life. Please note that the prosecution is willing to make these documents available to the trial judge on the morning of the trial for his inspection.”
On 13th October, 2003, Hanahoes wrote making request for further materials as follows:-
“4. Furnish any materials and information in the possession of Gardaí which might reasonably be of assistance to the defence and undermining the credibility of Owen Treacy.
5. Furnish list of previous convictions of all persons named in the Book of Evidence and additional evidence including the accused and Owen Treacy.
6. Furnish full particulars in respect of any criminal charges which have been laid against Owen Treacy in respect of which proceedings have not concluded.
7. Furnish full particulars of criminal investigations in which Owen Treacy is a suspect but in respect of which criminal charges have not been laid, including matters in respect of which substantial evidence is available to the Gardaí implicating Owen Treacy in criminal conduct, including information as to whether charges as against Owen Treacy are under consideration or as to whether a decision or decisions have been made not to charge him, including any video material from which it appears that Owen Treacy committed offences in respect of which he is not being charged.”
This letter was sent by fax to the CPS on the 13th October and a reply from the CPS was sent that same day by letter of even date which was also faxed to Hanahoes on 14th October. The CPS letter indicated that material in relation to seven specific incidents in which Owen Treacy was suspected of involvement, including the murder of Eddie Ryan in Limerick, would be furnished ‘shortly’. On 15th October, 2003, however, the CPS wrote to Hanahoes in markedly different terms. The later letter stated that Owen Treacy had been arrested in connection with nine different criminal investigations, the dates and locations of which were then set out. Two additional incidents (which related to the murders of Pa McCarthy and Michael McCarthy in Limerick in 1993) were added to the litany previously identified. The letter continued:-
“Please note that the custody records of Mr. Owen Tracey’s detention, his memos of interview and cautioned statements are not being disclosed as Mr. Treacy was either not charged, released without charge or the charges were struck out or withdrawn or in the case of the public order offence it was dealt with in the District Court and there is no file in existence.”

No real explanation has been offered for this change of mind by the CPS though it seems to have been of no great concern to the applicants’ advisors at that point in time. By letter dated 30th October the CPS reconfirmed that material in relation to other investigations would not be disclosed.
In the course of the appeal before this Court, it was suggested that the letter of 15th October was not received by Hanahoes. However, the letter was sent both by post and fax and the fax documentation clearly records “result-ok” and the Court is thus satisfied that the overwhelming probability is that either the fax or letter, or both, was received. The letter was sent in identical terms to all solicitors acting for the various applicants who were liaising in respect of trial arrangements and was clearly intended to supersede and replace the letter of 13th October. Had the letter of 15th October not been received, the various advisors for the applicants would have been in a situation at the start of the trial where material promised in the letter of 13th October had not been furnished. An application for an adjournment of the trial, which had previously been threatened if disclosure was not made in time, would surely have followed. No such application was in fact made. In any event Hanahoes and all other advisors were clearly on notice from the CPS letter of 9th October that rulings in relation to disclosure could be sought from the trial judge and documents would be available in court for that purpose when the trial began. The trial commenced on 5th November, 2003 and continued until 20th December, 2003. No application for further disclosure was at any time made during the trial, nor was any ruling sought in respect of any documents which might be in dispute in the context of disclosure.
Such information as had been made available indicated that while the gardaí suspected Owen Treacy of involvement in many crimes, including the murder of Eddie Ryan, they had no evidence to support their suspicions and for that reason had never charged him. In any event Owen Treacy’s associations and character were, as was frankly conceded by one member of the defence team at trial, well known to all the applicants against a background of internecine feuding between various families living in close proximity to each other in Limerick city. As noted by Mr. Burke, Q.C., whose advices to his client Anthony McCarthy were submitted to this Court:-
“It follows that at the time of this trial the seven serious allegations that had been made as against Owen Treacy were no more than allegations. As such the defence could not deploy this material, the allegations were obviously hearsay, the allegations collateral to the issues the jury had to resolve and at best would go to credit, with Mr. Treacy’s denials final. Indeed it is difficult to see how the defence could properly question Mr. Treacy on any unproven allegation he had previously faced.
In addition the prosecution disclosed a list of Mr. Treacy’s previous convictions, a total of four convictions, the most serious attracting a twelve month prison sentence in October, 1994 for an offensive weapon. For, no doubt sound tactical reasons, no defence counsel cross- examined as to character, all defendants were of bad character.”
As the Court will later observe, any decision taken by it in relation to the adequacy of disclosure must address the facts of this case and not be a decision arrived at in a vacuum. When this trial began, all parties were content with the level of disclosure which had been made, despite the ‘flagging’ of the nine incidents, including the murder of Eddie Ryan, to which reference has already been made.
However, in the aftermath of the trial and convictions, a different view of disclosure was taken. At this stage, new solicitors, Paul Martin & Co., had been instructed on behalf of the applicants Desmond Dundon and Anthony McCarthy. By letter dated 30th November, 2005, these solicitors wrote to the CPS office seeking, inter alia, the following information:-
“… the previous convictions of Mr. Owen Treacy who was the chief witness at the trial together with all the occasions upon which Mr. Treacy had been arrested and the intelligence file held by the Gardaí on Mr. Treacy.
We understand from news reports that he has been accused in the past of very serious offences, but you will be aware that at trial he was portrayed as effectively as a ‘bread man who had no role to play in organised crime’.”
By letter in reply on 6th January, 2006, the CPS enclosed details of the previous convictions of Owen Tracey (which had in any event already been furnished), together with details of previous arrests, which included arrests in relation to the murders of both Patrick McCarthy and Michael McCarthy in 1993 and the murder of Eddie Ryan in 2000.
Thereafter, Madden & Finucane, solicitors, came on record for the applicant Mr. Anthony McCarthy. By letter dated 22nd June, 2006, Madden & Finucane indicated that they had now obtained a transcript of the trial and sought from the CPS office a schedule of all material supplied both to Mr. McCarthy’s previous solicitors and to all parties. Mr. Madden made it clear in his letter that he required this information so that he could match the schedule with the papers received from the previous solicitors acting in the matter.
By letter dated 18th July, 2006, the CPS office wrote a reply stating:-
“I refer to the above matter and write to confirm that on 15th October, 2003 a letter was forwarded to Michael Hanahoe & Co. solicitors a copy of which is enclosed hereto.
Please note the contents of (i) - (ix) on p.2 which details the arrests made of Owen Treacy in connection with a number of criminal investigations.
In the final paragraph, it states that the custody records of Mr. Owen Treacy’s detention, his memos of interview and cautioned statements were not being disclosed as Mr. Tracey was either not charged, released without charge or the charges were struck out or withdrawn or in the case of the Public Order Offence it was dealt with in the District Court and there was no file in existence. We maintain this contention and are not prepared to disclose these materials unless the Court of Criminal Appeal directs us to do so.
We confirm that the Gardaí have no ‘intelligence file’ on Owen Tracey and to clarify matters our letter of 6th January, 2006 is incorrect in this contention- the intention was to refer to statements taken from seven individuals in connection with the alleged abduction of Kieran Ryan and Edward Ryan taken on 23rd January, 2003 which were not disclosed.”
Thereafter Madden & Finucane brought a notice of motion seeking further information about the nine incidents referred to in the letter of 15th October, 2003. This motion was adjourned on the return date, on which occasion Mr. Denis Vaughan Buckley, senior counsel for the prosecution, provided a number of files for inspection by Mr. Madden. While Mr. Madden had an opportunity of reading these files in the precincts of the court, he nonetheless sought more detailed disclosure, and his efforts in that regard were supported by other solicitors now on record for the various applicants.
By letter dated 14th November, 2006, the CPS wrote to the solicitors for Desmond Dundon as follows:-
“Mr. Vaughan Buckley indicated to your counsel on the last occasion in court that we have no objection to your counsel viewing the above material (i.e. in relation to the nine incidents referred to in the CPS letter dated 15th October, 2003) on the same basis that the solicitor acting on behalf of Mr. Anthony McCarthy was permitted to view same. I can bring the material to court on 20th November, 2006 for your counsel to peruse.”
The CPS thereafter furnished additional documents in a number of bundles now contained in Finucane Disclosure files 1, 2 and 3. The documentation related to the nine incidents under investigation by the gardaí in respect of which Owen Treacy was arrested, including three murders and various firearm offences. The material in particular included material relating to the murder of Patrick McCarthy and Michael McCarthy. It also included a number of statements made by a Mr Paul Coffey in relation to the murder of Eddie Ryan which suggested involvement in that matter by Owen Treacy.
In relation to the murder of Pa McCarthy in December, 1993, the material disclosed that Owen Treacy refused all samples requested of him by the gardaí following his arrest. He claimed in interview that Mr. McCarthy had attacked him with a knife on the day of the murder and stated : “I don’t give three fucks about them (ie., the McCarthys)”.
In relation to the murder of Michael McCarthy on 31st December, 1993 he again refused samples following his arrest in the following March.
In relation to the murder of Eddie Ryan, the disclosed material indicated that a scanner had been found in the home of Owen Treacy which allowed him monitor police radio frequencies, that he owned a house with no mortgage, that he had purchased a BMW for his wife. In interview he also indicated that he had no sympathy for the Ryans. He refused to answer various questions put to him about phone traffic on mobile phones attributed to him. A flak jacket was found in his house and Treacy said he had been advised by the gardaí in Limerick that he should wear one. During interview he covered his head with his jacket rather than show his face on video. It also appeared from this disclosure that the home of Owen Treacy’s parents had been fire bombed and it was suggested that Owen Treacy thereafter had petrol bombed John Ryan’s house and fired shots at him. A sum of cash in excess of 5000 euro was also found on his person in May, 2001.
In relation to the murder of Eddie Ryan, the material also included various statements taken from a Mr Paul Coffey who alleged that Owen Treacy was an organiser of that murder. Paul Coffey drove the getaway car on the occasion of the shooting of Eddie Ryan in the Moose Bar in Limerick on 19th November, 2000 and was subsequently convicted for his part in that crime.
No doubt anticipating criticisms which might be made by this court concerning the failure to seek and obtain this material pre-trial, Madden & Finucane wrote to their colleague solicitor firms in April, 2007 for an explanation. By letter dated 25th April, 2007 Hanahoes replied in the following manner:-
“We have discussed the matter with Counsel who represented Mr. McCarthy in the Trial.
Counsel directed that enquiries be made of the CPS in the terms of the letter from our office dated the 13th October, 2003, including disclosure of all information tending to undermine the creditability(sic) of Mr Treacy and relating to feud incidents in respect of which he was not charged.
On the 21st October, 2003, Junior Counsel for Mr McCarthy gave to Junior Counsel for the DPP a written list of requests which included the following:-
‘Furnish outstanding material referred to in paragraph 4 – 7 of your letter of the 13th October 2003, including any video material of Owen Treacy committing offences’
A letter to the CPS confirming the written list was faxed to the CPS on the 30th October, 2003. The full text of the letter sent by this office and the draft by Junior Counsel are enclosed for your attention.
To the best recollection of Counsel they were not aware at any stage during the trial of any letter by CPS stating the relevant documents would not be furnished on the grounds that Mr Treacy had not been charged in respect of the relevant offences, or, that no such charges were pursued.
At the outset of the Trial the possibility of making an application to the Trial Judge arising from disclosure matters was raised by Junior Counsel with Senior Counsel. This suggestion was repeated at the close of the evidence in light of the manner in which the prosecution had presented Mr Treacy.
Senior Counsel has confirmed that to the best of his recollection he took the view that the prosecution was obliged to disclose material relevant to the creditability(sic) of Mr. Treacy, whether or not it was specifically requested but since this specific request had been made by the Defence regarding a category of documents which the Defence believed could be relevant to the creditability (sic) issue, the only grounds upon which such a request could be properly be refused was if the prosecution had determined after careful consideration that the documents were not potentially relevant. The Counsel believe that in the circumstances including that Mr. Treacy had not been prosecuted in respect of the relevant matters, Senior Counsel took the view at the outset of the Trial that the application was not appropriate. The Counsel do not believe that Senior Counsel specifically addressed the matter during closing speeches.
Senior Counsel for Mr. McCarthy has confirmed after considering the Submissions filed on behalf of Mr. McCarthy dated 13th March, 2007, that if he had been aware of the contents of the materials disclosed after the Trial, this would have affected the decision he made to recommend Mr. McCarthy the defence should not open in evidence feud related incidents. To be specific, if such material had been available to the Defence Team, it would have led to a decision by Senior Counsel to recommend that Mr. Treacy and or the Gardaí to be cross-examined as to Mr. Treacy’s alleged participation in feud related incidents.
We are not in a position to confirm whether we received CPS letter dated the 15th October 2003, but can say we have no recollection of seeing it before it was shown to us by your good selves. Neither are we in a position to confirm whether it was conveyed to Counsel for Mr. McCarthy but can only say that all correspondence at this point in time was being immediately forwarded to Junior and Senior Counsel for Mr. McCarthy after it had been received by this office.”
As already noted, the letter referred to (ie, that sent by Hanahoes to the CPS on 30th October) was replied to on the same day by the CPS who reconfirmed that information relating to other investigations would not be disclosed. Again it must be stressed that no application of any sort as to the adequacy of disclosure was thereafter sought, nor was any adjournment of trial requested.

On behalf of the applicants generally, Mr. Burke Q.C. submitted that there is no obligation on the defence to pursue the State in relation to disclosure, that the whole matter of disclosure is exclusively a burden on the prosecution. He characterised the failure of the prosecution to make full disclosure as tantamount to “prosecutorial misconduct” in this case. The prosecution must have known that the material was plainly relevant. The fact that the various defence teams might not have sought to deploy the material was neither here nor there. No claim of privilege had been raised to justify nondisclosure.

In reply, Mr. Paul Burns, senior counsel for the Director, conceded that certain documents were withheld. In relation to statements made by Paul Coffey, these were not disclosed because of the risk to the life of Mr. Coffey at that time and because they related to other crimes and were in any event not relevant. Mr Burns stressed that it had been made plain by letter dated 9th October that, if necessary, a ruling in relation to non-disclosed material could be sought at the outset of the trial. He further argued that in any event in the instant case there was ample information available to the defendants as to the character of Owen Tracey, who was known to all of the applicants. Mr. Burns pointed out that, at the outset of the trial, counsel for one of the applicants had actually highlighted Owen Treacy’s close involvement with the Keanes in their opposition to the Ryan family. Virtually all of the information later made available was in the public domain, partly through ongoing newspaper and other media reports and partly as a result of the publication of the book “Crime Lords” by Mr. Paul Williams from which extracts in relation to gangland feuding in Limerick had appeared in The Sunday World in October, 2003.
Mr. Burns contended that while there was no statutory obligation on the defence to seek disclosure, the defence nonetheless had a part to play in the process once it is commenced. They could have pressed for further disclosure, brought a motion for that purpose, or sought rulings from the trial judge in respect of any documentation withheld, the existence of which had been clearly flagged and notified. The defence at all times had notice of Owen Treacy’s previous convictions and, had they so wished, they could have mounted an attack upon his character. On the contrary, Mr. Burns noted, a conscious decision was made to stay away altogether from the issue of Owen Treacy’s character. This was done for the very good reason that it supplied a motive for the murder of Kieran Keane and the assault on Owen Treacy. The bad character of the applicants would also have been disclosed had the material been utilised. Mr. Burns suggested that it was not open to the applicants “to have it both ways”, by trying to raise an issue for the first time on the appeal hearing having failed to persuade the jury that the accomplice theory concerning Mr. Owen Treacy had any substance to it. He characterised this ground of appeal as an ‘artificial ex post facto construct’ on the part of the applicants and as ‘the very kind of mischief which the decision of the Supreme Court in People (DPP) v Cronin [2006] 2 ILRM 401 was designed to prevent’. Mr Burns argued that if a point was ever to be taken about the adequacy of disclosure, there was an obligation on the defence to do so at or before trial and it was too late to complain now because they had not then done so.
Mr Burns further argued that in any event no reasonable court could conclude that the defence would have pursued a different strategy if they had possession of the later discovered material prior to trial. It was clear that the documents which had not been disclosed were of little or no value. They amounted to no more than hearsay suggestions that Owen Treacy was involved in gangland activity. None of the later disclosed material related to the Keane killing.
In reply, Mr. Burke stated that insofar as any suggestion that matters could have been left to the trial judge for ruling was concerned, that the trial judge has no function in relation to relevance. Nor could the obligation to make disclosure as laid down in The Director of Public Prosecutions v. The Special Criminal Court & Paul Ward [1999] 1 IR 60 be subjugated to the principles enunciated in People (DPP) v Cronin. If that were the case, it would be open to the prosecution to make limited disclosure only in criminal prosecutions and would completely defeat the separate obligations imposed by law on the prosecution in this regard. The onus to ensure that proper disclosure is made is not an onus which can be transferred to the defence. A tactical decision as to the conduct of the case had been made by the defence advisors without sight of relevant material, and this was sufficient to render the convictions unsafe. It was not for the prosecution to refuse to disclose material on the basis that the defence might not deploy such material at trial. Mr. Burke further pointed that his advices, to which reference has been made by the court, were dated January, 2006, and predated the disclosure of the further material in late 2006.

Relevant Legal Principles
There is no doubt under the modern jurisprudence of our courts that the prosecution are under a duty to disclose to the defence any material which may be relevant to the case which could either help the defence or damage the prosecution and that if there is such material in the possession of the prosecution they are under a constitutional duty to make that available to the defence. These principles were clearly stated in
Director of Public Prosecutions v. Special Criminal Court and Paul Ward [1999] 1IR 60, where the obligations of the prosecution in relation to disclosure were described in the following terms at p. 71:-
“The prosecution must disclose any document which could be of assistance to the defence in establishing a defence, in damaging the prosecution case or in providing a lead on evidence that goes to either of these two things.”
As was pointed out by Carney J. in the High Court hearing in that case, there could be no question of the gardaí or counsel for the prosecution deciding that any material might be withheld from disclosure to the court or the defence. It was in his view a matter for the court to determine, where a dispute arose, which documents should be disclosed or not disclosed to the defence. In dismissing the appeal brought from the ruling of Carney J., the Supreme Court held that the trial court has full discretion to decide how a trial is conducted and, in particular, how a controversy about disclosure should be resolved.
The Court is satisfied, however, that the obligations of disclosure are not limitless nor are they to be assessed in a vacuum or upon a purely theoretical or notional basis. Nor is a conviction to be regarded as unsafe per se simply because there has been a partial failure by the prosecution to meet the obligations of disclosure. It is a question of degree in every case, having regard to the nature and importance of the material in question. Thus in People (DPP) v Eamon Kelly [1987] I.R. 596 the failure of the prosecution to disclose a serious previous conviction of a prosecution witness was sufficient to render a conviction unsafe. In formulating principles to be derived from various English decisions such R v Collister and Warhurst [1995] 39 Cr. App. R. 100; R. v Parks [1961] 1 W.L.R. 1484 and R. v Paraskeva [1982] 76 Cr. App. R. 162, Finlay C.J. stated at p. 599:-
“….the court of appeal may, upon being satisfied as to the fact of such conviction and being also satisfied that it was material to the credibility of the witness, allow an appeal and direct a new trial.” (emphasis added).
The court also held, however, that the prosecution did not have a duty to make exhaustive or widespread enquiries about every prosecution witness so as to ascertain if convictions had been recorded against him, a reservation which also suggests that there must be some reasonable limitations to the duty imposed on the prosecution in this regard. It also suggests that not every failure by the prosecution to make complete disclosure will automatically result in a trial which is unfair or lead to a verdict which can only be seen as unsafe.
The Court is of the view that a failure of disclosure must be shown to have been important, as distinct from technical or trivial, if a conviction is to be regarded as unsafe. To put it another way, this Court must engage with the facts of this case to see if the omission disadvantaged the defence in such a way as to render the trial unfair or the jury verdict unsafe in the particular circumstances of the individual case. That is a two part consideration: was there a failure in the first instance, and, secondly, if so, did it materially affect the outcome of the case in the particular circumstances? That any obligation or failure to meet same must be assessed by reference to the facts of the particular case is apparent from a line of recent authorities on the judicial review side which deal with the obligations to seek out evidence, to preserve it and to make it available to the defence. These authorities may obviously be seen as having a shadow application to obligations of disclosure in criminal trials. The cases extend through Braddish v. Director of Public Prosecutions [2001] 3 IR 127, Dunne v Director of Public Prosecutions [2002] 2 IR 305, Scully v Director of Public Prosecutions [2005] 2 ILRM 203 to McFarlane v. Director of Public Prosecutions [2006] IESC 11
In the latter case, in stressing the need for an applicant to establish a risk of an unfair trial, Hardiman J. stressed (at p. ) :-
“In order to demonstrate that risk there is obviously a need for an applicant to engage in a specific way with the evidence actually available so as to make the risk apparent. Failure to do this was the basis of the failure of the applicant in Scully [2005] 1IR 242.”
These cases stress that commonsense parameters must govern the scope of the duty to seek out and preserve evidence and the consequences of any supposed failure to do so in a particular case. As Hardiman J noted in Dunne v Director of Public Prosecutions, “no remote, theoretical or fanciful” possibility should lead to a prosecution being prohibited. Repeating this in Scully v Director of Public Prosecutions [2005] 2 I.L.R.M. at 216 he added:-
“One is concerned, first and last, with whether there is a real risk of an unfair trial. Obviously this will depend on the individual circumstances of each case.”
While accepting that there is a limit to the duty on the prosecution, counsel for the applicants argued that the recent decision of this Court in DPP v Michael McKevitt (Unreported, CCA, 9 December, 2005) provided an important barometer as to the type of disclosure called for in the context of a proposed cross-examination of a witness as to credit. In the course of that judgment I stated:-
“It is important also to recall in this context that the principal purpose of disclosure was to provide material for the effective cross-examination of David Rupert and to challenge his credibility as a witness. This entitlement in turn is subject ultimately to some degree of limitation.
As was stated by Lawton J in R. v Sweet-Escott (1991) 93 CR. App. Rep 316 at p 320 –
‘What, then, is the principle upon which the judge should draw the line? (ie., as to limitations as to cross-examination as to credit). It seems to me that it is this. Since the purpose of cross-examination as to credit is to show that the witness ought not to be believed on oath, the matters about which he is questioned must relate to his likely standing after cross-examination with the tribunal which is trying him or listening to his evidence’
It seems to us that the defence were in possession of more than adequate material for a cross-examination directed to that end and purpose, having as they did material about David Rupert spanning three decades and which related to many questionable episodes in his past life”
In relying on this passage, counsel argued that the failure in the instant case must be seen as having materially affected the ability of the defence to mount an effective cross-examination of Owen Treacy as to credit. However, it must be said at once that the facts of the McKevitt case could hardly be more different from those of the present case. David Rupert was a U.S. citizen born in Potsdam, New York, who first came to Ireland in 1992. Unbeknown to the defendant, whom he first met in 1999, Rupert was a secret agent on the payroll of the FBI and British Secret Security Services whose mission was to infiltrate the Real I.R.A. and gather information about their activities. Virtually nothing was known about him. His evidence of meetings and conversations with Michael McKevitt led to the latter’s conviction before the Special Criminal Court.
What are the facts in the present case? Firstly, Owen Treacy is the nephew of the murdered Kieran Keane. His association with Kieran Keane, a notorious gangland criminal in Limerick, was well known to all applicants. On the first day of pre-trial hearings of this case, counsel on behalf of the applicant James McCarthy, in the course of seeking a separate trial for his client, informed the court as follows:-
“There is, as is anecdotally common knowledge, a situation in Limerick City involving a number of feuding gangs. My client candidly accepts that in that context he is aligned with the Ryan family faction. The Ryan family faction has been engaged in a protracted feud with the Keanes. Mr. Treacy, he alleges, is aligned with the Keanes.”
All of these parties live or used live in close proximity to each other. The supposed role of Owen Treacy in relation to gangland activities was in the public domain by virtue of the publication of the book “Crime Lords” by Mr. Paul Williams. Indeed counsel for one of the applicants referred to that publication when closing the case to the jury. Details of his previous convictions were in the hands of the applicants’ advisors.
The Court is satisfied, having regard to these considerations and having now considered the later disclosed material, that the failure on the part of the prosecution to make more detailed disclosure in relation to the murder of Eddie Ryan, whilst not to be condoned, was not such as to render the conviction in this case in any way unsafe. Not only is the material of itself extremely thin in terms of providing additional ammunition for cross-examination, it could not have been deployed without supplying a clear motive on the part of the applicants for the events of the particular evening, thereby undermining the ‘accomplice’ theory and exposing the bad character of the applicants. This is not to say that the prosecution have any entitlement to disregard its separate responsibility to make full disclosure, but rather that in the context of the facts and circumstances of this case, the omission to furnish every last document which might have referred to Owen Treacy is of a less serious nature than it might otherwise be in another case.
That discovery ranked fairly low in the calculation of the defendants’ advisors is apparent from the fact that, on any version of the correspondence in October, 2003, the defendants’ advisors declined either to apply for an adjournment of the forthcoming trial or to seek rulings from the trial judge in respect of any documentation which might be available in relation to the nine incidents which had been clearly flagged and notified. The Court is thus of the view that Mr. Burns is correct in his contention that the defence cannot have it “both ways” having made a clear decision, as was frankly conceded during the hearing of the appeal, to concentrate exclusively on the accomplice theory.
The practice of trawling through transcripts to find fault with the judge’s charge or some omission or failure on the part of the prosecution is a practice which was deprecated in severe terms by the Supreme Court in The People (Director of Public Prosecutions) v. Cronin [2006] 2 ILRM 401. In the judgment in that case, with which all members of the court concurred, I stated at p 416:-
“It seems to me that some error or oversight of substance, sufficient to ground an apprehension that a real injustice has occurred, must be demonstrated before the court should allow a point not taken at trial to be argued on appeal. There must in addition be some sort of explanation tendered to explain why the particular point was not taken. Furthermore, as noted above, the Court of Criminal Appeal is concerned only with the review of the trial and the rulings made therein, and not with other suggested errors or oversights which may predate the trial or have been amenable to remedy in some other manner.
Without some such limitations, cases will continue to occur where a trawl of a judge’s charge years after the event will be made to see if a point can be found which might have been argued or been the subject matter of a requisition at the end of the judge’s charge at the original trial, even though competent lawyers at the trial itself did not see fit to do so. It is an entirely artificial approach to a review of a trial and one totally disconnected from the reality of the trial itself. For these reasons and for the reasons offered by Hardiman J. when this case was in the Court of Criminal Appeal, this court should abhor the practice and strongly discourage it.”
That is not to say that the principles enunciated in Director of Public Prosecutions v. Special Criminal Court and Paul Ward must yield to those expressed in People (DPP) v Cronin. The principles relate to different concerns. There is an obligation on the prosecution to make discovery in accordance with the ‘Ward principles’. Where there is a failure to meet that requirement, the Court of Criminal Appeal must assess whether the information later disclosed could, in the context of the known facts of the particular case, have made a material difference – in this instance to the credibility of the chief prosecution witness. If it clearly would have made a material difference then the conviction must be regarded as unsafe. It would be unjust to adopt any other view and Cronin in express terms excludes from its application those cases where a real injustice might occur as a result of not permitting the argument on appeal of a point not taken at trial. However the Court is satisfied that nothing in the later disclosed material would have added significantly to the store of information which the defence already had in relation to Owen Treacy’s associations, previous convictions and involvement in gangland crime and feuding. Nor would the later disclosed material have made any material difference to his credibility if an attack on his character had been made.
What the principles enunciated in Cronin do suggest however is this: where, as in the instant case, a dialogue between prosecution and defence about disclosure is opened prior to commencement of trial and where a clear exposition is delivered of what the prosecution will disclose and will not disclose, it is not, in the view of this Court, open to the defence, having made certain requests for information and disclosure some of which have been met and others which have not been met for whatever reason, to thereafter sit on their hands and do nothing. That would encourage a most invidious state of affairs whereby a disclosure point could be kept in reserve to see if a certain strategy deployed at trial was successful, failing which the disclosure point could then be canvassed on appeal. That is indeed was the very kind of mischief that Cronin was endeavouring to deal with. No good reason or explanation has been offered as to why further disclosure was not sought, or a ruling sought in respect in respect of any disputed documentation in the present case. The explanation set out in the letter from Hanahoes to Madden & Finucane does not, in the opinion of this Court, amount to a reasonable explanation for failing to raise any concerns about the adequacy of disclosure or to seek appropriate rulings either prior to or during the trial herein. The true explanation, in the opinion of this Court, is that the defendants’ advisors were at all times fully content to pursue the accomplice theory and had little interest in pursuing an attack on the character or associations of Owen Treacy for the reasons already detailed. Further complaints now advanced about lately notified evidence equally did not give rise to any particular application being made for specific rulings at the time of the trial.
For those reasons, the Court rejects the appeal of the applicants brought in relation to those grounds.

MEDIA AND PUBLICITY
It is hardly surprising that the trial of the various applicants herein attracted enormous public interest and widespread press coverage. The Court is of the view that it could scarcely have been otherwise having regard to the fact that ongoing gangland feuds in Limerick were, and still are, the cause of enormous concern, not only to the local population, but to the entire country. Against that background, the Court is satisfied that any attempt to empanel a jury whose members were totally unaware of these background difficulties would have been quite impossible.
The applicants however do not make the contention that no trial should ever have taken place but contend that the trial judge was in error in deciding to proceed with the trial, rather than adjourning it to allow a ‘fade factor’ kick in, whereby memories of detrimental publicity might dim and disappear. It is also argued that the trial judge acted erroneously on the basis that he believed himself to be upholding some community right to a ‘speedy’ trial and, further, that he enjoyed a particular ‘rapport’ with the jury which would ensure that any warnings he gave the jury would suffice to negative any risk of bias or prejudice arising from certain media coverage of the trial itself and the surrounding circumstances in which it took place.
Media publicity related, in particular, to the transfer of the trial from Limerick to Dublin because of difficulties in swearing a local jury– a fact which had been reported in ‘Ireland on Sunday’ as a ‘bad defeat for law and order’. One newspaper also reported in graphic terms the fire bombing of the home of a member of the prosecution legal team. Other press coverage presented the local situation in Limerick in October, 2003 as a “war zone” which the authorities could not control. On 26th October, 2003, Ireland on Sunday contended that the State had “blinked first” in the confrontation with gangland criminals. There was widespread newspaper coverage of the collapse in the Four Courts of the trial of Liam Keane, a nephew of Kieran Keane, immediately before the start of the instant case, which was also portrayed in the media as a crisis for the criminal justice system in this country, perhaps best encapsulated in the two-finger gesture of Liam Keane outside the Four Courts. It was argued that this event, and the manner in which it was reported, was bound to put pressure on the jury to convict in the present case. Furthermore, extracts from Mr Paul William’s book ‘Crime Lords’ which dealt with gangland feuding in Limerick, appeared in the Sunday World on 26th October, 2003.
Mr. Jerome Lynch, Q. C. for Desmond Dundon, outlined these events and referred the Court to a volume of press cuttings which had been accumulated during the trial and which had been relied upon by the defence to seek either to have the trial delayed or the jury discharged. The Court does not find it necessary to detail these reports further than as already outlined. The Court also had an opportunity to view video recordings of certain television coverage, including a Late Late Show programme devoted to the problem of gangland crime in Ireland, a programme entitled ‘the Panel’ where crime in Limerick was also a topic for discussion, together with various newscasts wherein Garda spokesmen referred to ongoing criminal killings and other related offences in Limerick.
While various warnings were given by the trial judge to the jury to ignore press or other media publicity, counsel argued that such warnings were only but one of a variety of measures open to the trial judge and of themselves could never suffice to eliminate the risk of an unfair trial. The learned trial judge had refused to warn the press to curtail or desist from what the prosecution itself had accepted were sometimes inaccurate reports. He had refused adjournment applications made on 29th October, 2003 and on 4th November, 2003, prior to the commencement of the trial.
He further refused to discharge the jury on either 6th November, 2003 or 11th November, 2003 when further matters of complaint were canvassed, including reports of David Stanners being shown on television being led into court in handcuffs. His overall view was that he would deal with such matters in “calmer waters” at the conclusion of the trial and would at that point consider referring any issues arising from inappropriate press coverage to the Attorney General for his consideration. He also refused to discharge himself from the case on the latter occasion.
Counsel for the various applicants also repeatedly complained that a book by Paul Williams “Crime Lords” was top of the bestsellers list in Ireland at the time and constituted yet another reason why the trial should not proceed in the heated atmosphere which then obtained. By ruling as he did that “no matter what appears in the newspapers” he would ensure that the trial went to the jury, the trial judge effectively abandoned his responsibility to ensure that the applicants obtained a fair trial from an unbiased jury.
Mr. Lynch stressed that the court’s priority at all times must be to ensure the fairness of the trial which of necessity involved protecting the applicants from any prejudice which might either consciously or subliminally affect their deliberations. He placed reliance in this context on the decision of the Privy Council in Montgomery and Coulter v HM Advocate & Anor [2003] 1 A.C., which suggested that the trial judge was in error in holding that there was some sort of ‘balancing exercise to be conducted between the public’s right to an expeditious trial’ and the rights of the applicants to a fair trial when, in fact, the latter was the only issue to be addressed, either by reference to well established principles of domestic law or by reference to Article 6 of the European Convention on Human Rights.
In reply, Mr. Burns pointed out there were only three transcript references to any applicant being seen or photographed in handcuffs. On the second day of the trial the learned trial judge had severely rebuked one national newspaper and indicated that contempt proceedings might follow any inappropriate reports of the case. Mr. Burns argued that this was a sufficient warning to the media and the representatives of the applicants could have sought relief elsewhere to stop any further reporting of the case had they wished to do so. Mr. Burns argued that notorious cases such as the present case would always attract publicity and the strict warnings given repeatedly by the learned trial judge to the jury to ignore anything other than the evidence they heard in court were sufficient in all the circumstances. Further, it was one of the defence counsel who ultimately told the jury about Mr. Paul Williams’ book. Throughout the trial, the jury had listened attentively, had taken notes, had requested certain items of evidence and had thereafter deliberated for fifteen hours before delivering their verdict. This was not the behaviour of a jury which had been prejudiced by press publicity but rather demonstrated that the jury were conscientiously going about their work.
Most importantly, Mr. Burns submitted, an adjournment would have made absolutely no difference, because this was not a case where any fade factor would have come into operation, because of the ongoing gangland feuding in Limerick. The background difficulties would always have remained and some degree of publicity was inevitable. To abort a trial in such circumstances would amount to the abandonment or destruction of the jury system as known in this jurisdiction.
The relevant legal principles concerning the potentially prejudicial effects of media publicity have been addressed in a number of cases by courts in this jurisdiction and in England.
In D v. Director of Public Prosecutions [1994] 2 IR 465, the Supreme Court made it clear that the right of an individual to a fair trial is of fundamental importance, Denham J stating at 474:-
“The applicant’s right to a fair trial is one of the most fundamental constitutional rights afforded to persons. On a hierarchy of constitutional rights it is a superior right.
A court must give some consideration to the community's right to have this alleged crime prosecuted in the usual way. However, on the hierarchy of constitutional rights there is no doubt that the applicant's right to fair procedures is superior to the community's right to prosecute.
If there was a real risk that the accused would not receive a fair trial then there would be no question of the accused's right to a fair trial being balanced detrimentally against the community's right to have alleged crimes prosecuted.”
Finlay C.J. elabororated further in Z v. Director of Public Prosecutions [1994] 2 IR 476 when he stated at p.507:-
“With regard to the general principles of law I would only add to the principles which I have already outlined the obvious fact to be implied from the decision of this Court in D. v. The Director of Public Prosecutions, that where one speaks of an onus to establish a real risk of an unfair trial it necessarily and inevitably means an unfair trial which cannot be avoided by appropriate rulings and directions on the part of the trial judge. The risk is a real one but the unfairness of trial must be an unavoidable unfairness of trial.”
The decision of Geoghegan J in Zoe Developments Ltd. v Director of Public Prosecutions (Unreported, High Court, Geoghegan J., 3rd March, 1999) is also of some importance having regard to its references to the so called ‘fade factor’. In that case there had been a public disclosure of some twelve previous convictions of the applicant company. It was directed in that case that there be a delay before the trial should commence to allow the ‘fade factor’ to come into play. Defence counsel argued that the trial judge should have adopted a similar strategy in the instant case.
Notorious cases inevitably attract publicity and the history in recent years of gangland crime and feuding in Limerick is a fact known to all Irish citizens old enough to read newspapers, listen to the radio or watch television. It is quite unrealistic to expect that the media would cease to report on ongoing gangland violence in Limerick while this or any other trial was taking place. Indeed, as the hearing of this appeal got under way, there were further media reports of multiple garda raids in various locations in Limerick city which yielded up significant quantities of arms, ammunition and other weaponry. What is a court to do, therefore, where there is an ongoing problem of gangland feuding in a particular area so that there is no realistic prospect that the so called “fade factor” will ever kick in? Does the fact that gangland feuding is continuing in Limerick mean that no trial by jury of the applicants could ever take place?
In R v. West [1996] 2 CR. App. R. 374, Lord Taylor C.J., in addressing publicity issues in that notorious case stated at p. 386:-
“The question raised on behalf of the defence is whether a fair trial could be held after such intensive publicity adverse to the accused. In our view it could. To hold otherwise would mean that if allegations of murder are sufficiently horrendous so as to inevitably to shock the nation, the accused cannot be tried. That would be absurd. Moreover, providing the judge effectively warns the jury to act only on the evidence given in court, there is no reason to suppose that they would do otherwise. In Kray (1969) 53 CR. App. R. 412 at pp. 414, 415, Lawton J. said:-
‘The drama… of a trial almost always has the effect of excluding from recollection that which went before’.
That was reiterated in Young v. Coughlan (1976) 63 CR. App. R 33 at p. 37. In ex p. The Telegraph Plc (1994) 98 CR. App. R. 91, 98, [1993] 1W.L.R. 980,987, I said:-
‘A court should credit the jury with the will and ability to abide by the judge’s direction to decide the case only on the evidence before them. The court should also bear in mind that the staying power and detail of publicity, even in cases of notoriety, are limited and the nature of a trial is to focus the jury’s minds on the evidence put before them rather than on matters outside the courtroom’.”
The Court is satisfied that the jury system, if it is to survive, can only do so on the assumption that juries will heed warnings given to them by trial judges. Strong and repeated warnings in trenchant terms were given by the trial judge to the jury in this case to ignore everything other than the evidence adduced in court. It is not to be supposed that juries treat such warnings lightly. As Blayney J. stated in D v. Director of Public Prosecutions [1994] 2 IR 465 at 472:-
“In a criminal trial the members of the jury are made very aware of the heavy responsibility they have as the judges of the guilt or innocence of the accused. It begins with their individually taking an oath to ‘well and truly try the issue whether the accused is guilty or not guilty of the offence charged in the indictment preferred against him and a true verdict give according to the evidence’.They are then reminded by the trial judge in his charge at the end of the case that they must decide the case only on the evidence before them; that they must put out of their minds anything they may have heard or read about the case from any other source, and that they must not allow themselves to be swayed by sympathy but decide the case on the facts. What must be borne in mind also is the impact made on the jury by hearing the witnesses in the case, by having the evidence at first hand presented to them. Are they going to permit their assessment of that evidence to be influenced by a vague recollection of something they read in a newspaper some months before, particularly when to do so would be to disregard their oath and to disregard the clear directions given to them by the trial judge?”
It is wrong, as was stressed by Denham J. in D v. Director of
Public Prosecutions, to impute naivety to jurors, and the jury system is a robust and enduring system which has served the community well over many hundreds of years.
It was held by this Court in The People (Director of Public
Prosecutions) v. Catherine Nevin [2003] 3 IR 321 that there could indeed be circumstances in which a trial would be stopped on grounds of adverse media publicity. However, the court held that there was a range of discretion within which the trial judge could legitimately consider whether the accused would get a fair trial and that an appeal court should not interfere with the exercise of this discretion unless it was clearly wrongly exercised.
This Court is satisfied that the test indicated in Montgomery v HM Advocate & Anor [2003] 1 AC 641 operates to the same effect. It was formulated by Lord Hope of Craighead in the following terms at p. 67:-
“….the decisive question is whether the doubts which the defendants have raised about the impartiality of the tribunal can be held to be objectively justified, and that in a case which is to be tried under the solemn procedure the “tribunal” includes not only the jury but also the trial judge. Thus the question is not confined to the residual effect of the publicity on the minds of each of the jurors. Account must also be taken of the part which the trial judge will play in order to ensure, so far as possible, that the defendants will receive a fair trial. An examination of the measures which he can take under the system which has been laid down for the conduct of criminal jury trials forms an important part of the whole exercise”
While the Court is of the view that the learned trial judge was in error in thinking that the appropriate test was to balance the supposed public interest in an expeditious trial against the rights of the applicants to a fair trial, that does not dispose of this ground of appeal because this Court is satisfied that the learned trial judge did not go outside the parameters of his discretion in refusing either to adjourn the trial or discharge the jury on foot of the various applications made to him. To put it another way, the Court is not satisfied that Mr Lynch has provided objective justification for his contention that the learned trial judge demonstrated a lack of impartiality in the manner in which he dealt with issues of media publicity or that he failed to play his part in trying to ensure a fair trial for the applicants.
The Court would accept, however, that some of the criticisms made of the learned trial judge in relation to his responses to the various applications were justified. It was certainly incorrect of the trial judge to state that he would, regardless of what appeared in the newspapers, see to it that the trial went to jury verdict. His responses to certain requisitions were disrespectful and perfunctory. Furthermore, it was incorrect for the learned trial judge to state that, because of his belief that a “rapport” existed between himself and the jury, that his warnings were, for that reason alone, completely effective. However, the Court is satisfied that in referring to a ‘rapport’ the trial judge was conveying only that he could see for himself that the jury were taking on board his warnings, not that he and the jury were standing as it were together against the applicants and their legal representatives.
Any assessment of the prejudice alleged must be referenced to what was published or written. In this regard much of the supposedly prejudicial material which appeared in the newspapers related to the general background of criminal and gangland activity in Limerick. It did not intrude in any invasive way in the particular trial. By contrast, in the case of Director of Public Prosecutions v. Nevin, various colour pieces arose during the first trial whereby constant comments were made by certain popular newspapers about the applicant’s appearance and her clothing. The trial judge had stated:-
“Mrs. Nevin had been dissected every day by comment on her personal appearance, her demeanour. She is given no credit for her composure in a situation of great stress. Comment on her appearance was made in a particularly offensive way. Her privacy has been invaded by photographing her coming out of her own home and by prying into her book to see that her husband's memorial mass card was a marker. And all of this to feed an insatiable public curiosity for detail upon detail of what kind of person Mrs. Nevin is. The theme which emerged of fictional character or plot from an airport novel is a trivialisation of what is the most serious exercise being carried out in this court, consequent on the violent death of a man to determine whether his wife, Mrs. Nevin, the accused is guilty of his murder."
Notwithstanding these articles, the learned trial judge in that case
concluded that there was not a “real or serious risk that Mrs. Nevin would not get a fair trial”. No such personalised reporting of any of the applicants appeared in media coverage of this trial.
The Court further notes that protests and applications about supposedly prejudicial media publicity were made predominantly in the early stages of the proceedings: on 29th October, 4th November, (both prior to commencement of trial), 6th November and 11th November. Thereafter they tailed off, other than an application on the fifteenth day to discharge the jury because of press reports about the seizure of Collopy assets by the Criminal Assets Bureau. This pattern confirms the correctness of Lord Taylor’s views in R. v West cited above, to which may be added those of Geoghegan J in the Nevin case when he stated:-
“There is a big difference between, say, a one day trial taking place immediately after adverse publicity and, on the other hand, a 40 day trial.”
The Court is therefore satisfied that the repeated and trenchant warnings given by the trial judge to the jury were sufficient to obviate any risk of prejudice from any publicity surrounding this case.
Finally, under this heading, it was suggested that the various applicants were regularly photographed or filmed “in chains” being led into court. However, when pressed by this court to indicate when or in what circumstances this had occurred, it transpired that there had been a single photograph in which one of the applicants had been seen been brought into court in handcuffs. There may in addition have been a number of such photographs in newspapers in Limerick.
As was stressed in The People (Director of Public Prosecutions) v. Davis [2001] 1 IR 146, this Court held obiter that the shackling of a prisoner has an adverse effect both on his dignity and subjective wellbeing and on the perception of him by the community. Protection of restrained prisoners from publicity, including photographers, was mandated by prison rules. Publication of photographs of persons in restraints may in certain circumstances amount to contempt of court.
In a further ex-tempore judgment delivered by this Court in the case of Director of Public Prosecutions v. Laurence O’ Sullivan (unreported, CCA, 26 November, 2003), the Court drew attention to the undesirability of the publication of a photograph where actual handcuffs were not shown but the pose of the accused man indicated that he was under restraint. In that case the court held that the judge exercised his discretion correctly in refusing to discharge the jury.
In The People (Director of Public Prosecutions) v. Hourigan & anor (unreported, CCA, 19th March, 2004, McGuinness J.) this Court further deplored the publication of such photographs and accepted that the photograph in that case was to some extent prejudicial. However, the court stressed that it was open to the trial judge in such circumstances to deal with such problems otherwise than by discharging the jury. This can be done by emphasising to the jury that in finding the facts they are confined to the evidence heard in court.
In conjunction with this ground of appeal, it was also argued that the trial should not have taken place within the curtilage of a prison, nor should the jury have been prejudiced by seeing a security presence in court when Owen Treacy first took the stand.
However, as was pointed out by Mr. Burns, Cloverhill consists of both a prison and a courthouse. It is not in dispute that the learned trial judge distinctly informed the jury that the trial had been moved to that location for “space reasons”. Of course there was a security dimension to the choice of location and counsel for the various applicants accept that due weight must be given to those concerns also. The Court is satisfied there were ample grounds to justify the transfer of the trial from Limerick to Dublin, for providing safe and secure transport arrangements for the jury to and from court, and for dealing with the hearing in a manner which sought to combine fairness with due regard to the serious security concerns which existed at the time. In this regard, the Court notes that the actual height of the witness box was adjusted to ensure that any witness giving evidence there could be fully and properly seen and heard. The Court believes these various complaints are without merit and the same are rejected.

ISSUE IN RELATION TO KENNY DUNDON

The facts giving rise to this ground of appeal are as follows: Owen Treacy gave evidence that Desmond Dundon was present in Anthony McCarthy’s house at Fairgreen when he and Kieran Keane arrived there. Desmond Dundon told gardaí in interview he was further down the road talking to his brother Kenny Dundon, which engaged him for about one hour. At the time of trial Kenny Dundon was in England. On the 21st day of the trial the court was informed that ‘certain difficulties’ had arisen in relation to securing his attendance at court that day and that he would be unable to give evidence until the following day. However on the following day Kenny Dundon did not appear, whereupon the trial judge stated “well the trial proceeds”.
Beyond indicating that some ‘communication difficulty’ arose which indicated to Kenny Dundon that he was not required, no further explanation for the absence of the witness was forthcoming. Mr. Lynch argued that a further adjournment should have been granted in the circumstances, but this Court notes that no further application for adjournment for the purpose of getting Kenny Dundon to court was in fact made at trial.
The Court notes the absence of any good reason to explain the non-attendance of Kenny Dundon. It is not suggested that any difficulty arose from anything said or done by the prosecution or gardaí. It was entirely for the defence to ensure the attendance of this witness if it was believed he had relevant or credible evidence to offer in the case. The learned trial judge was perfectly entitled to rule as he did.

SEPARATE TRIALS
Mr. Thomas O’ Connell, senior counsel for Christopher Costello, submitted that the learned trial judge erred in fact and in law in refusing to direct that three persons, James McCarthy, Christopher Costello and David Stanners be tried separately from the other accused persons Desmond Dundon and Anthony McCarthy. Mr. O’ Connell conceded at the outset of his submissions that the application for separate trials made by counsel for James McCarthy on the first day of the first trial in Limerick was correctly refused by the learned trial judge. However a second application for separate trials was made on day eleven in the context of what occurred on that date.
Detective Garda Nagle in direct examination stated that he had visited Owen Treacy in hospital on 29th January, 2003 and again on the morning of 30th January, 2003. On 30th January, 2003 he stated that he had a conversation with Owen Treacy and made notes of that conversation on a brown folder that he had with him. In cross-examination by counsel for Desmond Dundon, Detective Garda Nagle was asked about the contents of the notes that he took from Owen Treacy. He stated that he asked Owen Treacy directly who stabbed him and who shot Kieran Keane. Counsel for James McCarthy objected to Garda Nagle giving an answer and the jury retired while legal argument took place. It was clear that it was proposed at that stage to indicate that Mr. Treacy had named James McCarthy, Christopher Costello and David Stanners. During the course of legal argument it was noted by the learned trial judge that counsel could object to hearsay in relation to direct examination but not in relation to cross-examination in a joint trial. Counsel made a comment as to an earlier observation by the trial judge as to the hazards of a joint trial. The trial judge noted that were he to rule the answer inadmissible, that counsel on behalf of Mr. Dundon would complain that he was not permitted to cross-examine. In those circumstances counsel for James McCarthy went on to indicate that the appropriate course was to consider directing separate trials. The application to exclude the evidence was joined in by Mr. Nix, then senior counsel for Christopher Costello, and Mr. Bowman, counsel for David Stanners. Mr. Nix in his submission noted that the question was one of balancing the rights of counsel for Desmond Dundon to refer to a previous inconsistent statement of Owen Treacy against his client’s right to be protected from hearsay evidence. Mr. O’ Sullivan on behalf of the prosecution noted that the prosecution would not have been entitled to lead the evidence at issue but submitted that counsel on behalf of Mr. Dundon was entitled to do so. The learned trial judge ruled on the matter saying:-
“I take the view that Mr. Maloney is at large in cross-examination.”
At this point applications were made for separate trials by Mr. Edwards on behalf of Mr. Dundon, and also by Mr. Nix and Mr. Bowman. Those applications were refused.
Mr. O’ Connell submitted that the learned trial judge had erred in law in allowing evidence to be given as to a conversation between Detective Garda Nagle and Owen Treacy in which Owen Treacy named certain persons namely David Stanners, James McCarthy and Christopher Costello as being the individuals who stabbed him and who shot Kieran Keane and that the application for separate trials should have been granted at that stage.
Mr. Burns in reply emphasised that Owen Treacy had been cross-examined during the course of his evidence as to the names he had given to Detective Garda Nagle. Mr. Burns pointed out that when Detective Garda Nagle was giving evidence on day eleven as to the names mentioned by Owen Treacy it was not as a result of any examination in chief but rather that the evidence arose from cross-examination by counsel on behalf of one of the accused. He argued that a witness could be cross-examined in relation to a previous inconsistent statement. He submitted that the admission of this evidence, whether hearsay or not, had no impact on the trial as the information had already come out. He also relied on ss.4 and 5 of the Criminal Procedure Act, 1865. On that basis he submitted that the decision not to permit separate trials was correct.
Mr. O’ Connell in reply submitted that the provisions of ss. 4 and 5 of the Criminal Procedure Act, 1865 did not apply as suggested by Mr. Burns to the notes taken by Detective Garda Nagle. He pointed out that no one sought to rely on the provisions at the time and that had reliance on those provisions occurred, the judge would have had to give a specific direction in relation to ss. 4 and 5. The Court agrees with the submissions of Mr. O’ Connell on this latter point, though the resolution of this ground of appeal does not hinge on that finding. It was also submitted that the trial judge, having allowed the evidence to be given by Detective Garda Nagle as to the notes he had made of his conversation with Owen Treacy on 30th January, 2003 and having admitted those notes as evidence before the jury, should have then issued a warning to the jury that the evidence was to be used by them to impugn the credibility of Owen Treacy and that it was not to be treated as evidence of the facts contained therein. However the core of his submission was that when this issue arose, the judge should have acceded to the application for separate trials.
The Court would stress that the trial judge has discretion to order separate trials where there are two or more co-accused. The nature and extent of that power was described in the judgment of Sullivan P. in Attorney General v. Joyce [1929] I.R. 526 at p.537 where he stated:-
“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 re-trial directed, if we are satisfied that a refusal to direct separate trials has resulted in a miscarriage of justice.”
The learned trial judge had to balance the interests of the prosecution and each of the co-accused. The trial judge had noted that the evidence sought to be adduced during the cross-examination of Detective Garda Nagle was being led in cross-examination by a co-accused in respect of a prior inconsistent statement and not by the prosecution. Reference was made in the course of legal argument to the hazards of a joint trial. This Court, in reviewing the decision of the learned trial judge not to grant an application for separate trials has had to consider whether the refusal to do so resulted in some injustice to the applicants such as rendered the conviction unsafe. It is noteworthy that the cross-examination of Owen Treacy in relation to his conversations with Detective Garda Nagle had elicited the fact that Owen Treacy had implicated only three of the accused in his initial statement to the gardaí and this was already known to the jury at this point in the trial. This Court is thus not satisfied that the refusal to grant separate trials in the circumstances that arose on day eleven of the trial has had any of the adverse implications contended for by Mr. O’ Connell. This ground of appeal is also dismissed.

INCONSISTENCIES IN THE EVIDENCE OF OWEN TREACY
The principle witness for the prosecution was Owen Treacy. In his charge to the jury the trial judge stated that the case against the accused depended on the evidence of Owen Treacy. It is his evidence which links the accused to the murder of Kieran Keane and to the other Counts on the Indictment. None of the accused gave evidence in the trial. The jury were told by the trial judge that if they accepted ‘the substance’ of Owen Treacy’s evidence they would be entitled to convict the accused. Counsel for the appellants contend that in introducing the notion of acceptance of the evidence of Mr. Owen Treacy “in substance”, without defining the meaning of this phrase, the jury could have been led to believe that they could ignore any inconsistencies in the evidence given by Mr. Treacy and how this might have affected his credibility.
The evidence establishes that Owen Treacy spoke to the gardaí on four occasions:-
(i) Detective Garda John Nagle gave evidence that he spoke to Owen Treacy at 12.30 a.m. on 30th January, 2003 at the hospital and he made notes on a file cover.
(ii) Detective Garda John Nagle spoke again to Owen Treacy on 30th January, 2003 at approximately 1 p.m.
(iii) Owen Treacy gave a statement to the gardaí on 31st January, 2003
(iv) Owen Treacy gave a second statement to the gardaí on 4th February, 2003.
In the course of the trial Owen Treacy was cross examined at length by counsel for each of the accused. He was cross examined inter alia, on inconsistencies between his evidence and the statements he made to the Gardaí. Some examples are as follows:-
In his statement of 31st January, 2003, he stated that hoods
were put over his head and Kieran Keane’s head. He said the bottom of the hoods were taped over their throats and before he came out of the house he asked for a hole to be put in his hood as he couldn’t breathe. It was put to him that on 4th February, 2003 he stated that the hoods were made of green material “…with tiny holes that you could see through”.
In the course of his evidence Owen Treacy identified road signs during the car journey from No.5 Fairgreen to Roundwood and described a blue and white sign before the entrance to a Krups factory stating that he thought the white was the top of the sign and the blue at the bottom. It was put to him that in his statement of 4th February, 2003 he said he could see some sort of road sign but did not know what was on it.
In his statement of 31st January, 2003 he described how he saw David Stanners taking Kieran Keane around to the front of the van and saw him pushing Kieran Keane to the ground. There was then “a big bang and a flash”. But in a statement of 4th February, 2003 he stated that he lost sight of Kieran Keane when he got out of the van although he also said he could see Kieran Keane with David Stanners and James McCarthy up at the front of the van. In his evidence at the trial he said that he lost sight of Kieran Keane and David Stanners took him up the side of the van.
In his statement of 31st January, 2003 Owen Treacy stated;-
“I saw Stanners shooting Kieran in the head. There was a big bang and flash. When I heard the shot I had the tape off my hands. Smokey backed off when he saw this. David Stanners came for me with a dagger knife. He tried to cut my throat first.”
When this statement was read to him in court he said that the description of the attack on him was wrong and that he saw David Stanners come at him with the gun.
The matters set out above are but some examples of inconsistencies between the evidence of Owen Treacy given in the trial and previous statements made by him. While there were others, they did not feature so prominently during the trial.
The appellants argue that by telling the jury that if they accept “the substance of Owen Treacy’s evidence in its entirety” they would be entitled to convict, the judge did not properly direct them and that, in effect, the trial judge failed to give any proper direction to the jury on how to deal with such inconsistencies.
However the use of this word “substance” by the trial judge must be seen in context. A reading of the judge’s charge shows that he gave the jury extensive guidance on how they should approach the task of assessing the evidence. He told them that if they accept the substance of Owen Treacy’s evidence in its entirety and to the standard of “beyond reasonable doubt” they would not only be entitled to convict each of the accused but that it would be their duty to do so. He also told them that if they reject the evidence of Owen Treacy then it would be their duty to acquit. He informed the jury that if they had a doubt in relation to the evidence of Owen Treacy it would be their duty to acquit. He summarised extensively the evidence given, including the inconsistent elements.
He went on to tell them that they were entitled to accept part of the evidence of Owen Treacy and not accept other parts. They were entitled to accept his evidence in respect of one or more of the accused and not in respect of others. He then added “It entirely depends on your assessment of the evidence of Owen Treacy”.
The learned trial judge told the jury that they were judges of facts of the case and they were not brought to “rubber stamp” any views which they thought the judge might have. He informed them that they were confined to the evidence and they could not speculate. None of the accused gave evidence in the trial and the judge told the jury in the “strongest possible terms” that they were not entitled to attach any significance to that and they were not entitled to speculate about the reasons for that. He reminded them that the onus of proof remained on the prosecution at all times and never shifts to the accused.
The learned trial judge was requisitioned on his charge and the requisitions included the contention on behalf of counsel for the applicants that the judge had failed to properly deal with the inconsistent statements of Mr. Owen Treacy. The learned trial judge recalled the jury and recharged them on a number of matters including Owen Treacy’s evidence. He warned the jury that they must consider the entire case including the defence case before they could accept Mr. Owen Treacy’s evidence. He reminded them that a medical registrar had conveyed in his evidence that the description Mr. Treacy gave about a knife being plunged into him and going “up to the hilt” was impossible.
What emerges from a perusal of the transcript is that the jury heard several counsel challenge Owen Treacy on inconsistencies between his evidence and statements he had previously made to the gardaí. The jury cannot but have been aware that Mr. Treacy’s credibility was being challenged. Having come to the end of his charge the judge told the jury that it all came down to them making an assessment of Mr. Owen Treacy. He also summarised to the jury counsel’s closing speeches which highlighted the alleged inconsistencies.
It is the view of this Court that, looking at the trial judge’s charge as a whole, the jury were left in no doubt that the credibility of Owen Treacy was very much in issue and that his evidence, as a whole, was crucial to the prosecution case. Having heard the evidence and the judge’s charge it was the jury’s function to make findings of fact based, to a large extent, on the evidence of Owen Treacy. In reaching their deliberations they were clearly aware of the inconsistencies between the statements of Mr. Treacy and the evidence he gave at the trial, and it was entirely a matter for them as to whether they accepted his evidence beyond reasonable doubt.
The assessment of evidence, including any inconsistencies that may exist, is entirely within the area of responsibility given to juries. It is not for the trial judge to usurp the function of the jury by determining what might detract from the credibility of a particular witness. This complaint is also dismissed.

JURY ISSUES
A number of complaints were raised in the course of the appeal
with regard to the manner in which the jury had been empanelled in this case and with the regard to give a specific warning to the jury not to discuss the case with persons outside their own numbers. Each of these complaints will be dealt with in turn.
(a) Jury vetting
In the course of empanelling the jury, the prosecution exhausted
their seven challenges made without cause and endeavoured to show cause in the case of a further juror. In respect of this juror, the prosecution raised an objection on the basis that a family member of the juror had a criminal conviction. It was submitted on behalf of the applicants that this clearly indicated that the prosecution, through the gardaí, had clearly carried out some sort of vetting procedure in respect of the jury panel. The defence had no such opportunity and thus the principle of “equality of arms” was not applied to the provision of information in relation to the jury panel and it was submitted that for this reason the accused did not receive due process.
Section 16 of the Juries Act, 1976 contains no provision for vetting of a jury panel, but does provide as follows:-
“(1) Every person shall be entitled to reasonable facilities to inspect a panel of jurors free of charge and a party to any proceedings, civil or criminal, to be tried with the jury shall be entitled to a copy free of charge on application to the county registrar.”
It is not clear what enquiries were made in relation to the jury panel as no evidence was led on this issue. In any event, the juror in question was not required to stand down. There was certainly no evidence of impropriety.
The Court does not propose to make any finding in respect of Mr. Burns quite separate contention that it would be impossible ever to show cause without making some form of inquiry. Suffice it to say that no authority was cited to this Court which would interdict the making of reasonable enquiries, if indeed such inquiries were made in this case. The objection may have arisen from an instance of a mistaken association, presumably made by a member of the gardaí, of the name of a particular juror with a known criminal but in any event there was no resultant prejudice to the applicants as the objection was disallowed.
(b) Allowing an employee of Clondalkin Garda Station to act as a juror at the trial.
The applicants submit that the convictions in this case should be
quashed on the grounds that a reasonable and fair minded observer would consider there was a danger, in the sense of a possibility, that because a juror worked as a civilian clerk in Clondalkin Garda Station that that juror might have as a result been “unconsciously influenced” by her experiences in the station to lean in favour of the prosecution and against the applicants. In this regard, reliance was placed on the decision of this court in The People (Director of Public Prosecutions) v. Tobin [2001] 3 IR 469 in a judgment which was subsequently approved and applied by this court in The People (Director of Public Prosecutions) v. McDonagh [2003] 4 IR 417.
Both cases stress that the test for bias is an objective, and not a subjective, test.
The facts in The People (Director of Public Prosecutions v. Tobin) were that, in a prosecution for rape and sexual assault, the foreman disclosed to the court during the course of its deliberations that a member of the jury had related to the jury a personal experience of sexual abuse. The foreman had assured the court that this was not affecting the impartiality of the person concerned but nonetheless felt it should be reported. The trial judge refused to discharge the jury but the conviction was quashed on appeal, Fennelly J. stating at p. 478:-
“In that situation, the court considers that in the special circumstances of this case a reasonable and fair minded observer would consider that there was a danger, in the sense of a possibility, that the juror might have been unconsciously influenced by his or her personal experience and, for that reason, the appellant might not receive a fair trial.”
In the instant case, the fact that a clerical worker had been empanelled was in fact disclosed by counsel for the prosecution on the first day of the trial. An application to discharge the jury for this reason was refused, the learned trial judge stating:-
“This jury has been selected in accordance with law. This lady apparently holds a job in Clondalkin. The one thing everybody on the jury panel will have known is that this is a Limerick case and not a Clondalkin case. The jury has been selected in accordance with law and the trial will proceed.”
Having refused to discharge the jury, counsel for the applicants argued that the trial judge should have given a carefully worded special direction to the jury to counteract the perceived dangers arising from the presence of this juror on the jury.
The Court has no hesitation in rejecting this complaint. The juror in question was eligible in law to serve on the jury and took an oath to deliver a verdict in accordance with the evidence. As noted in a preceding section of this judgment, it is not to be assumed that jurors will disregard a solemn oath taken in this manner, nor is there to be any presumption adverse to an eligible juror to such effect. The Court is further satisfied that no reasonable or fair minded observer would think that some unfairness to the applicants would result from the presence of this juror on the jury.
(c) Failure to warn the jury not to discuss the case outside their own numbers.
It is undoubtedly the case that the learned trial judge did not give a specific warning in the precise terms of conventional practice on this issue.
However, this Court is satisfied that it is implicit from the repeated warnings of the learned trial judge to the jury that they decide the case on the evidence alone, coupled with the particular circumstances in which this trial took place, was sufficient to bring home to them that they should not, in consequence, discuss the case other than amongst themselves. No Irish authority was cited in support of the contention that the failure to warn in specific terms could render a conviction unsafe. Furthermore, no point was raised by any of the applicants in relation to this omission at any stage during the trial. It is therefore a point which has only emerged following a trawl through transcripts long after the trial had concluded. Indeed it is a point that never featured in the original notices of appeal filed on behalf of the various applicants, and is in consequence a point clearly covered by the decision of the Supreme Court in Director of Public Prosecutions v. Cronin [2006] 2 ILRM 401.
There was in any event no evidence or complaint in this case that any juror had spoken inappropriately to any other person at any stage of the trial. This differentiates the present case from the only authority cited, namely, the case of R v Melvyn John Prime [1973] 57 Ct. App. 632.
In that case the trial jurors had separated at the midday adjournment at the first day of hearing. During that adjournment, two jurors were seen walking in a street near the courthouse in the company of a man called Earl. Earl had been in court that morning; indeed he had been called as a juror, but apparently of his own initiative he had said that he knew the appellant Prime and that he did not think it was right he should sit on the jury, and he was accordingly excused from jury service on that account. He remained in court and during the midday adjournment he was seen by the appellant’s mother and his wife walking along the street in company with two of the jurors.
According to the statements taken from both the mother and the wife, what happened was this: They spoke of seeing Earl and the two jurors walking in the street, and the mother and the wife both say Earl jokingly turned to them and said:- “He is guilty”. The mother said that rather upset her, and she replied: “He had better not be,” and as they did not wish to be seen talking to jurors, they separated and went back to the court.
In the course of delivering judgment, Widgery LCJ stated (at 637):-
“It is important in all criminal cases that the judge should on the first occasion when the jury separate warn them not to talk about the case to anybody who is not one of their number. If he does that and brings that home to them, then it is to be assumed that they will follow the warning and only if it can be shown that they have misbehaved themselves does the opportunity of an application of the kind now before arise.
The material before us is quite insufficient for us to say that there is anything wrong with the trial or with the verdict, particularly when one has regard to the strength of the case for the prosecution against the appellant. Accordingly the appeal is dismissed.”
While this case provides an appropriate basis for a submission which might have been made but was not made, the Court notes that there was in that case some evidence that the jury might have misbehaved in some manner. No such evidence was offered in the present case. Furthermore, this Court is satisfied that repeated warnings from the trial judge to consider the case only on the basis of the evidence heard in court and nothing else was adequate to “bring home to them” the requirement not to have their views affected by anything which might be said by any person outside their ranks. That ground of appeal is therefore dismissed.

IDENTIFICATION OF VARIOUS ACCUSED BY OWEN TREACY
Mr. Sammon, senior counsel, made submissions in relation to the visual identification evidence given by Owen Treacy in relation both to his client David Stanners, and also the other applicants, but particularly James McCarthy and Christopher Costello. He submitted that the identification evidence given by Owen Treacy in relation to the various applicants demanded a very clear warning from the trial judge to the jury in the course of his summing up. This was because the evidence in relation to the latter three applicants was so weak.
Insofar as Anthony McCarthy was concerned, no issue had been raised about Treacy’s identification in his case, because Anthony McCarthy accepted he was at 5, Fairgreen on the evening in question. Desmond Dundon, however, claims he was not there. No evidence which could identify either James McCarthy or Christopher Costello in events at Fairgreen or at Roundwood was ever given by Owen Treacy. A man wearing a balaclava in Fairgreen was identified by Owen Treacy as David Stanners. In evidence, Treacy had claimed to recognise David Stanners by his voice, though in his statement he stated that he recognised David Stanners by his build. Owen Treacy referred to recognition of Stanners because of his “big eyes” only when cross-examined by one of the defence legal team.
Owen Treacy described in evidence how he was placed into a green hiace van outside the house at Roundwood. He claimed to identify both David Stanners, James McCarthy and Christopher Costello as the three other occupants of the van, although there was no light in the van. He placed David Stanners as the driver of the van and James McCarthy, whom he claimed to know all his life, as being in the front passenger seat. Christopher Costello was located, according to Treacy, in the back of the van with a handgun in his hand. However, a blanket was soon placed over him in the van and over Kieran Keane also. The van had been driven for some 20 minutes and there was no street lighting in Drumbanna. The only lights were those to the front of the van. There were also headrests on the seats which would have impeded the view of Owen Treacy of both the driver and front seat passenger.
It was only at trial that Owen Treacy stated for the first time that David Stanners turned around whilst seated in the driver’s seat so that he, Owen Treacy, had a good view of him.
In cross-examination, Owen Treacy had been compelled to admit that he had last spoken to James McCarthy some four or five years ago. It was put to him that his identification of James McCarthy was based on a fleeting glimpse through a set of headrests as he was getting into the vehicle, but Owen Treacy asserted that he had seen James McCarthy in the front of the van. He also stated that James McCarthy was present when Kieran Keane was being shot and while he was being stabbed by David Stanners. He alleged that it was James McCarthy who said “he is dead, he is dead, he is dead.”
In charging the jury, the learned trial judge’s warning as to the dangers of relying on visual identification was in the following terms:-
“Now, this case depends on visual identification primarily. You have been told right from the outset that the case depends wholly and exclusively on the evidence of Owen Treacy and anything else that is put in as being supportive of the case that is being made but it stands or falls on the evidence of Owen Treacy and Owen Treacy purports to identify the five accused as being the parties involved in the matters complained of.
Now, the Supreme Court has indicated after a series of celebrated cases that very great caution has to be adopted in relation to visual identification and counsel opened the leading case. It is still mandatory for me to deal with it in very, very strong terms. There were a series of cases where crimes which seemed watertight at the time and resulted in convictions and it was proved afterwards that the person who had been convicted of it couldn’t have been involved and, as a result of which, the Irish Supreme Court first and the English Court somewhat later made it mandatory on the trial judge to give the strongest possible warning to a jury in relation to any case involving visual identification and it did so in these terms saying:-
‘We are of opinion that juries as a whole may not be fully aware of the dangers involved in visual identification nor of the considerable number of cases in which such identification has been proved to be erroneous and also that they may be inclined to attribute too much probative effect to the test of an identification parade.
In our opinion, it is desirable that in all cases where the verdict depends substantially on the correctness of an identification, their attention should be called in general terms to the fact that in a number of instances such identification has proved erroneous to the possibilities of mistake in the case before them and to the necessity of caution.
Nor do we think that such warnings should be confined to cases where the identification is that of only one witness. Experience has shown that mistakes can occur where two or more witnesses have made positive identifications.
We consider juries, in cases where the correctness of an identification is challenged, should be directed on the following lines, namely that if their verdict as to the guilt of the prisoner is to depend wholly or substantially on the correctness of such identification, they should bear in mind that there have been a number of instances where responsible witnesses whose honesty was not in question and whose opportunities for observation had been adequate, made positive identifications on a parade or otherwise which identifications were subsequently proved to be erroneous, and, accordingly, that they should be specially cautious before accepting such evidence of identification as correct; but that if after careful examination of such evidence in the light of all of the circumstances, and with due regard to all the other evidence in the case, they feel satisfied beyond reasonable doubt of the correctness of the identification, they are at liberty to act upon it’.
So the situation in this case is you have very careful regard to the fact that visual identification has proved to be dangerous and also, notwithstanding that this is a one witness case, if you were satisfied of the substance of the evidence of that witness, all twelve of you, to the standard of beyond reasonable doubt, you are nonetheless free to act upon it if you accept it.”
It is submitted that this charge was defective for a number of reasons:-
(a) The learned trial judge simply read out the passage from The People (Attorney General) v Casey (No. 2)[1963] 1 I.R. 33 in a ‘stereotypical manner’ without applying it to the facts of the particular case
(b) The learned trial judge did not direct the jury to examine closely the circumstances of the identification of Joseph McCarthy, Christopher Costello and David Stanners
(c) The trial judge did not make any attempt whatsoever to remind the jury of any weakness in Owen Treacy’s identification evidence.

In support, Mr. Sammon relied upon the judgment of this Court delivered in Director of Public Prosecutions v. O’ Donovan (unreported, CCA, 10th December, 2004) which provided authority for the proposition that there was a necessity to give a Casey warning even where the evidence was one of recognition rather than identification by a stranger. He submitted that the warning could not be given in a stereotypical manner but had to be applied to the facts of the particular case and the trial judge must direct the jury to examine closely the circumstances of the identification e.g., the light and time of observation (R. v. Turnbull [1977] QB 224).
In response, Mr. Burns argued that the strength or severity of the warning must depend on the facts of the particular case. The judge had given a warning as required by the People (Attorney General) v. Casey (No.2) [1963] IR 33.
This was a recognition case, rather than an effort at identification made by a complete stranger. Owen Treacy had said in evidence that he “knew Desmond Dundon all his life” (D3-p.42). On the night of his abduction, Owen Treacy had spent several hours with both Desmond Dundon and Anthony McCarthy. He also knew Christopher Costello (D3- p.53). Owen Treacy further gave evidence that he knew David Stanners for twenty years. He gave evidence that he knew him because of his voice and for the other reasons detailed. With regard to James McCarthy, he gave evidence that he knew him all his life (D3- p.54) although he did concede he had not spoken to him for a number of years.
The Court is satisfied that the warning given by the trial judge to the jury was more than adequate in the particular circumstances of this case. The jury were in the best possible position, as already noted, to test and weigh any inconsistencies in the evidence given by Owen Treacy, who was subjected to cross-examination by each and every counsel for the various applicants over a period of days. Much of that cross-examination was directed to the difficulties which it was suggested Owen Treacy had in effecting the identification which he had made. While there were a number of inconsistencies in the evidence furnished by Owen Treacy when taken in conjunction with his earlier statements, these were all quintessentially matters for the jury to assess.
The Court is quite satisfied that it is perfectly in order for a trial judge to refer, as Carney J. did, to the exact words contained in the passage cited from the judgment delivered in Casey, notably when the passage is so clear and easily grasped. Different considerations might apply where the language of a particular judgment is complex or not readily amenable to being understood or assimilated by a jury. This does not arise in the case of The People (A.G.) v Casey where the language adopted by the Supreme Court is simple and straightforward, no doubt intentionally so as it was clearly intended that it should be relied upon by trial judges when directing juries. Trial judges will be placed in an impossible situation if they are to be faulted for carrying out the express directions of the Court of Criminal Appeal or the Supreme Court in matters of this nature. Neither in Casey or any in other judgment opened to the Court was it stated that a trial judge is precluded reading from the text of a statute or judgment. What Kingsmill Moore J. actually stated in delivering the judgment of the court in Casey was as follows (at p. 40):
“This direction is not meant to be a stereotyped formula. It may be too condensed to be fully appreciated by a jury without some further explanation and the facts of an individual case may require it to be couched in stronger or more ample terms, as when the witness or witnesses had no previous acquaintance with the appearance of the accused or had only an indifferent opportunity for observation.”(emphasis added)
This is far from being an authority for saying that reading from the text is a prohibited or futile exercise. On the contrary, it merely elaborates that no precise form of words is necessary and that the particular facts may call for a stronger warning in certain situations and, furthermore, at least by implication, that the warning requirements are less severe in a case where the identification is based on recognition. In the case relied upon by the applicants, D.P.P. v O’Donovan, Hardiman J at p. 9 seems to have taken the view that the Supreme Court said in D.P.P. v O’Reilly [1990] 2 I.R. 415 that “the warning should not be given in a stereotypical manner.” In fact D.P.P. v O’Reilly was a decision of this Court and the judgment of O’Flaherty J delivered therein simply stresses that the direction is not to be treated as a stereotyped formula, but needed to be addressed to the “particular infirmities” of that case. It says nothing about the manner in which the warning is to be delivered. The infirmities in that particular case included the fact that the chief witness who purported to identify the accused was a lady aged 81 years who was in shock and who had never previously known the men who entered her house. It was also a case where the court held there could and should have been an identification parade and the reason given for not having one was not satisfactory. No such issues arise in the present case.
It is clear from a reading of the trial judge’s summing up as a whole and in particular that portion that relates to visual identification, that his directions to the jury were firmly rooted in the particular circumstances of this case and the dangers of erroneous identification were more than adequately emphasised in what indubitably was a recognition case. The Court is also satisfied that while the learned trial judge did not fully repeat Mr Sammon’s closing address to the jury in the course of his summing up he nonetheless in his summary of the evidence covered all salient points relating to the identification of David Stanners by Owen Treacy and indeed the identification of the other applicants also. The Court is quite satisfied that any objections taken under this heading of appeal can not succeed.

ALIBIS
Complaint is made by a number of the applicants in relation to the manner in which the trial judge dealt with the question of alibis in his charge to the jury. The learned trial judge referred to the statements made by the various accused to the gardaí at different stages. He identified each statement in respect of each of the accused. The trial judge stated expressly to the jury that he was not going to read out the contents of the memoranda of interview as the jury would have typed copies of the interviews available to them. In the case of Desmond Dundon, as he had not signed the memoranda of interview, he read those out to the jury.
The learned trial judge noted the evidence given by Detective Garda Carroll who was involved in a number of the interviews with Anthony McCarthy to the effect that Mr. McCarthy requested repeatedly to see the video from the Statoil garage. The learned trial judge quoted from the cross examination of Detective Garda Carroll in which he said as follows:-
“It was not feasible to show him the tapes because we could
not locate the actual time. They have since been examined. I believe a white van can be seen on the tapes. We would have no idea what make it is and you don’t know what business he does either. It is clear from the video tape that the white van was present in the garage approximately between 7.50 and 8.00.”
The learned trial judge read to the jury the memoranda of interviews of Desmond Dundon. During the course of his interviews he gave an account of his movements. The learned trial judge summarised at some length the account of Desmond Dundon to the effect that he went with Anthony McCarthy to the garage near 5 Fairgreen and got a lift in a van from there. Reference was made to his account of going down to the garage to phone a cab. Anthony McCarthy knew a fellow there and they got a lift.
Finally the learned trial judge summarised the evidence of Barry Fitzgerald the only defence witness who was called on behalf of Anthony McCarthy. He described giving a lift to three people including Anthony McCarthy and Desmond Dundon.
Having summarised the evidence in the case, the learned trial judge went on to refer briefly to the cases made by counsel on behalf of each of the accused. In summarising the speeches of counsel to the jury he referred at length to the defence put forward on behalf of Anthony McCarthy by way of alibi. He described the evidence given by Barry Fitzgerald. So far as James McCarthy is concerned he referred to the fact that Mr. Edwards on his behalf pointed out that his client had given the explanation that he was not there.
Following the judge’s charge to the jury, he was not requisitioned on any point in relation to the alibi defence.
As noted above, Anthony McCarthy was the only one of the accused to adduce evidence from a witness in support of his alibi defence. The evidence of Barry Fitzgerald was summarised in detail by the trial judge. At the conclusion of his charge to the jury the learned trial judge commented:
“Notwithstanding the difficulties inherent in visual
identification, notwithstanding that this is a one witness case, if you are satisfied with the substance of Owen Treacy’s evidence in its entirety, then not only would you be entitled to convict the accused but it would be your duty to do so. Mr. Edwards said so in his speech. If you do not accept the evidence of Mr. Treacy, well then, of course it is your duty to acquit. If you have a doubt about the evidence of Mr. Treacy, it would be your duty to acquit the accused.”
He then went on to point out to the jury that they were entitled to accept parts of the evidence of Mr. Treacy and to reject other parts depending on the view and assessment of the evidence. It was also pointed out that they were entitled to accept the evidence of Mr. Treacy against one or more accused and not against others. He reminded the jury that they had to try each of the accused separately and that the jury could come to different conclusions in relation to different accused.
During the course of their deliberations, the jury called for and were provided with the video from the garage in which Desmond Dundon and Anthony McCarthy were supposed to have been given a lift by Barry Fitzgerald.
This Court is satisfied that the learned trial judge had put before the jury all the relevant information in regard to the alibi defences and had pointed out that the case was essentially a “one witness case”. He carefully directed the jury as to the need to consider that case against each of the accused separately and only to convict if satisfied of the guilt of the accused beyond reasonable doubt. It is clear that the jury was alert to the nature of the alibi defence put forward on behalf the accused and that they rejected the evidence of Mr. Fitzgerald.

COMPLAINTS ABOUT TRIAL JUDGE
Mr. Brendan Grehan, senior counsel for James McCarthy, argued that the trial, taken as a whole, had to be seen as unfair to the applicants for the various reasons put forward by his colleagues, but also because of the lack of impartiality by the trial judge, whose behaviour and rulings at various stages of the proceedings were indicative of bias. Mr. Grehan stressed that he was not arguing that the learned trial judge exhibited any subjective bias, but rather an objective bias as would be perceived by any fair minded and reasonable observer.
Mr. Grehan argued that the trial judge permitted Owen Treacy to present himself as a “humble bread man” throughout the trial. The trial itself was fast tracked to such a degree that the learned trial judge took seisin of the case before ever it was allocated to him. The learned trial judge insisted on fixing the earliest possible trial date, thereby depriving the applicants’ legal advisors of adequate time to consider the adequacy of disclosure made in the case. The jury had also been informed that the trial was taking place in Cloverhill for “space reasons” when in fact the trial had been transferred to Dublin for security reasons.
The learned trial judge had further failed to ensure “equality of arms” between the prosecution and defence by failing to condemn what appeared to have been a vetting procedure carried out by the prosecution in relation to the jury panel. No such facility was in place for the various applicants. Furthermore, the learned trial judge should have discharged the jury when it became clear that a clerical officer from Clondalkin Garda Station had been empanelled.
It had been an error to commence the trial immediately after the collapse of the Liam Keane trial in the Four Courts. Furthermore, the security arrangements for Owen Treacy in the courtroom at Cloverhill were “over the top”, particularly when two apparently armed security men were standing in close proximity to him while he commenced his evidence.
The learned trial judge had further made no realistic effort to restrain the media, insisting instead he would consider any such matters at the end of the trial. His responses to various applications were disrespectful and scornful. For example concerns about media publicity were greeted by the trial judge saying: “should the jury be locked up over Christmas?” The learned trial judge continually invoked some supposed public interest to justify getting to the end of the trial regardless of any application made on behalf of the applicants. He further insisted that he had a “rapport” with the jury and indeed told the jury that the content of certain voir dire applications.
In reply, Mr. Burns argued that the prosecution had not presented Owen Treacy as an “innocent bread man”. He had been called as a prosecution witness in circumstances where all applicants had been informed of his previous convictions and prior arrests. The defence were well aware of Mr. Treacy’s character and chose not to attack it. No complaints were made at the trial itself that Owen Treacy was “holding himself out” as a bread man only. If fast-tracking the case had caused the defence any difficulty, some objection should have been made at the trial itself. In relation to the transfer of the case to Dublin, this, ironically, had first been sought by one of the applicants’ legal representatives.
Any suggestion that disclosure was made too close to trial could also have been the subject matter of some objection but no objection had been raised. While the judge had made some remarks about defence counsel being ‘precious’ and engaging in ‘trench warfare’ or ‘filibuster’, these remarks had to be seen as part of the ‘cut and thrust’ of a jury trial.
This Court has dealt with virtually all of these complaints already. Specifically, the Court would be of the view that to inform the jury that the trial had been transferred to Cloverhill Courthouse for “space reasons” would hardly be an appropriate matter for complaint. Given the tenor of the various applications made to the learned trial judge concerning the excessive nature of the security arrangements, one can readily imagine that a further complaint would have been made had the learned trial judge instructed the jury that the trial was being held in Cloverhill for security reasons. Mr. Grehan very fairly accepted that there were legitimate security considerations to which due regard had to be given in the instant case.
The Court has already noted that the learned trial judge did in general terms warn the media that they could face contempt proceedings if inappropriate reporting occurred. He also gave the jury repeated warnings to disregard anything other than the evidence they heard in court.
The learned trial judge is effectively in charge of the list in the Central Criminal Court and it was thus entirely appropriate for him to monitor the early stages of these proceedings and to give appropriate direction as to when the trial would be heard. There is absolutely no evidence to suggest that the learned trial judge interfered in any way with the proceedings whilst the same were before any other court or under the responsibility of any other judge.
All of these complaints are dismissed.

ACCOMPLICE WARNING
It was submitted on behalf of the applicants that the learned trial judge should have given an accomplice warning to the jury in respect of the evidence of Owen Treacy, particularly in circumstances where he was effectively the chief prosecution witness. Mr. Burke on behalf of the applicants submitted that there was sufficient evidence in the case to support a theory that Owen Treacy was complicit in the murder of his uncle, but despite being requested so to do, the learned trial judge refused to give an accomplice warning, ruling as follows:-
“The question was bounced at Mr. Treacy from time to time, were you not in on the killing of your uncle and he said no, so the status of the accomplice situation is nil, zilch, it does not exist”.
Mr. Burke submitted that accomplice warnings are never
dependent on the witness accepting he is an accomplice and to rule on the application by reference to Mr. Treacy’s response to the question was a misdirection. Mr. Burke argued that at the very least a conditional warning would have been appropriate, as it was the jury’s opinion of Mr. Treacy which mattered, not that of the trial judge. In making this submission, Mr. Burke relied upon judgments delivered in Attorney General v. Linehan [1929] IR 19 and The People (Attorney General) v. Carney [1955] IR 324.
Mr. Burke suggested that there was a solid basis in evidence to justify the view that Owen Treacy may have been an accomplice, as follows:-
(a) Mr. Treacy refused to co-operate with the investigation until he knew the condition of his uncle. Once death was confirmed he co-operated, confident he could not be contradicted by Kieran Keane. No satisfactory explanation was ever offered for the stance adopted by Owen Treacy at the outset of his interviews with the gardaí. A possible explanation, however, was fear of being implicated if Kieran Keane survived.
(b) Owen Treacy alerted his abductors that the Passat car was “hot”, thereby minimising the opportunity of being rescued by the gardaí. It was inexplicable that Owen Treacy would have passed on such information at a time when he knew he was facing certain death- unless, of course, he was an accomplice.
(c) Only one hood was found, despite the fact that Mr. Treacy claimed that he too was hooded.
(d) Owen Treacy failed to explain or witness the torture wounds to Kieran Keane.
(e) Owen Treacy claimed to have been treated in a manner identical to Mr. Keane, but the binding on Kieran Keane’s hands was found to be so secure that he could not have escaped from them. Mr. Treacy on the other hand was able to escape from his.
(f) The injuries sustained by Owen Treacy were such as to suggest that no genuine effort to kill him ever occurred. No effort was made to shoot him, although it was suggested he knew all those responsible and could name them to the prosecution authorities. Instead he was stabbed about fourteen times. However, 99 % of the wounds were superficial according to the doctor who treated him. Thirteen of the wounds were found to be between one and two centimetres deep, the one remaining wound three to four centimetres deep. The knife was described as five inches long and Mr. Treacy claimed the knife had been plunged into him up to the hilt, an assertion which was contradicted by the medical evidence.
(g) Kieran Keane’s jeans had soil or dirt on the back of the seat area, whereas no such findings were found in respect of Owen Treacy, though Owen Treacy claimed he and Kieran Keane were treated identically thoughout.
In reply Mr. Burns stated that the trial judge had to decide if there was sufficient evidence to go to the jury to suggest that Owen Treacy was an accomplice. The plain fact of the matter was that no evidence in support of this ‘theory’ was given at trial. Mr. Burns stressed that the various suggestions put to Mr. Treacy by the various counsel for the applicants to the effect that he was an accomplice did not thereby constitute the basis for holding that he was an accomplice or that a warning was necessary. It was vehemently denied by Owen Treacy that he was an accomplice.
The most elaborate attempt to define an ‘accomplice’ to which the Court was referred was that outlined by Lord Simonds in Davies v. Director of Public Prosecutions [1954] AC 378 when he ventured a definition of the term ‘accomplice’ which was to the following effect (at pp. 400 - 401):-
“There is in the authorities no formal definition of the term ‘accomplice’; and your Lordships are forced to deduce a meaning for the word from cases in which X,Y and Z have been held to be, or held liable to be treated as accomplices. On the case it would appear that the following persons, if called as witnesses for the prosecution, have been treated as falling within the category:-
(1) On any view, persons who are participes criminis in respect of the actual crime charged, whether as principals or accessories before or after the fact (in felonies) or persons committing procuring or aiding and abetting (in the case of misdemeanours). This is surely the natural and primary meaning of the term ‘accomplice’. But in two cases, persons falling strictly outside the ambit of this category have, in particular decisions, been held to be accomplices for the purpose of the rule: viz:
(2) Receivers have been held to be accomplices of the thieves from whom they receive goods on a trial of the latter for larceny (Rex v Jennings (1912) 7 Cr App R 242; Rex v Dixon (1925) 19 Cr App R. 36)
(3) When X has been charged with a specific offence on a particular occasion, and evidence is admissible, and has been admitted, of having been committed crimes of this identical type on another occasion, as proving system and intent and negativing accidents; in such cases the court has held that in relation to such other similar offences, if evidence of them were given by parties to them, the evidence of such other parties should not be left to the jury without a warning that it is dangerous to accept it without corroboration. (Rex v Farid 91945) 30 Cr. App. R. 168)
In both of these cases (2) and (3) a person not a party or not necessarily a party to the substantive crime charged was treated as an accomplice for the purpose of the requirement of warning. (I say ‘not necessarily’ to cover the case of receivers. A receiver may on the facts of a particular case have procured the theft, or aided and abetted it, or may have helped to shield the thief from justice. But he can be a receiver without doing any of these things.) The primary meaning of the term ‘accomplice,’ then, has been extended to embrace these two anomalous cases. In each case there are special circumstances to justify or at least excuse the extension. A receiver is not only committing a crime intimately allied in character with that of theft: he could not commit the crime of receiving at all without the crime of theft having preceded it. The two crimes are in a relationship of ‘one-sided dependence.’ In the case of ‘system,’ the requirement of warning within the special field of similar crimes committed is a logical application within that collateral field of the general principle, though it involves a warning as to the evidence of persons not accomplices to the substantive crime charged”.
Lord Simonds continued as follows at p. 401:-
“My Lords, I have tried to define the term ‘accomplice.’ The branch of the definition relevant to this case is that which covers ‘participes criminis’ in respect of the actual crime charged, ‘whether as principals or accessories before or after the fact.’ But, it may reasonably be asked, who is to decide, or how is it to be decided, whether a particular witness was a ‘particeps criminis’ in the case in hand? In many or most cases this question answers itself, or, to be more exact, is answered by the witness in question himself, by confessing to participation, by pleading guilty to it, or by being convicted of it. But it is indisputable that there are witnesses outside these straightforward categories, in respect of whom the answer has to be sought elsewhere. The witnesses concerned may never have confessed, or may never have been arraigned or put on trial, in respect of the crime involved. Such cases fall into two classes. In the first, the judge can properly rule that there is no evidence that the witness was, what I will, for short, call a participant. The present case, in my view, happens to fall within this class, and can be decided on that narrow ground. But there are other cases within this field in which there is evidence on which a reasonable jury could find that a witness was a ‘participant.’ In such a case the issue of ‘accomplice vel non’ is for the jury's decision: and a judge should direct them that if they consider on the evidence that the witness was an accomplice, it is dangerous for them to act on his evidence unless corroborated: though it is competent for them to do so if, after that warning, they still think fit to do so.”
In this jurisdiction the decision of the Court of Criminal Appeal in Attorney General v. Linehan [1929] IR 19 made it clear that no precise definition of “accomplice”, could be laid down, Kennedy C.J. stating at p. 23:-
“We do not think that in the case of a rule of caution concerned with the credit of accomplice witnesses and the weight of their uncorroborated evidence, a narrow or precise definition of ‘accomplice’ should be, or indeed can be, laid down. We think, however, that a person implicated either as principal or as accessory in the crime under investigation is an ‘accomplice’ within the rule, though the degree in gravity of such complicity may vary, and in as much as the extent of the effect of such complicity upon the credit of the witness or the weight of his own corroborated evidence will vary accordingly, so should the degree in gravity of the warning be measured.”
In The People (Attorney General) v. Carney & anor [1955] IR 324
the Supreme Court held, on the particular facts of that case, at p. 345:-
“a very slight degree of complicity, either as principal or accessory, in the crime charge is sufficient to render a person an accomplice for the purpose of the rule requiring that the jury should be warned of the danger of acting on his uncorroborated testimony.”
The facts of that case are worthy of note. The accomplice, John Kelly, was a lifelong friend of Henry Carney, one of the accused. A few days after the offence and the larceny of a safe, the two accused came to Kelly and asked him for the loan of his van and for permission to bring “some stuff” to his garage. They were given the van and shortly afterwards returned with the safe. When Kelly went to his garage, he found them with the safe lying on the floor of the garage, the back of the safe having been removed by an electric drill. He then permitted, under protest it would appear, the safe to be buried temporarily in his back garden until the day when he was visited by the gardaí, to whom he then pointed out where the safe had been buried.
The People (Attorney General) v. Carney may also be seen as supporting the proposition that it is for the trial judge to determine in the first instance whether or not a witness is an accomplice. As stated by O’ Byrne J at p. 346:-
“In my view, on any reasonable view of this evidence, Kelly was
an ‘accomplice’ within the meaning attributed to that term in Linehan’s case, i.e., that he was involved in the crimes under investigation either as principal or accessory, and I am of opinion that the trial judge should not have left it to the jury to say whether he was an accomplice …”

Reliance was also placed upon the decision of this court in The People (Director of Public Prosecutions) v. Diemling (unreported, CCA 4th May, 1992). In that case, the court was of the view that the trial judge erred when instructing the jury that in law there was no evidence upon which the daughter of the accused could have been held to have been an accomplice. In her evidence she stated that the accused had informed her of the death of Jack Evans, although this evidence was denied by the accused. By her own account she was fixed with knowledge of the death. In the light of admitting knowledge of the fact that the deceased had been unlawfully beaten and seriously injured there was evidence that she was aware that the death amounted to a felonious homicide. Her subsequent activities in assisting in the concealment of evidence of the fact of injury and death could be construed as activity intended to assist in the escape of the person guilty of the homicide. In those circumstances, this Court was able to conclude (at p.36):-
“An accessory after the fact, in the opinion of this court, can have a sufficient degree of complicity to be an accomplice in the crime. This is a matter of fact for the jury to decide. In the circumstances it was for the trial judge to direct the jury that in the event of them finding that Kia was an accessory, that there was a sufficient degree of complicity to warrant their finding her an accomplice in the crime and in that event they should heed the warning on the danger of convicting on the evidence of an accomplice. …There was in the opinion of the Court evidence to warrant that finding being left to the jury.”
It is apparent from the foregoing citations that it is for the trial judge to determine in the first instance whether there exists evidence in the case sufficient to be considered by the jury tending to implicate a particular witness as a ‘participant’ or ‘accomplice’in the crime under consideration by them.
The facts and circumstances of the cases referred to above could hardly be more different from those of the instant case, where Owen Treacy and Kieran Keane were not only close blood relatives, but were on the same side of an ongoing gangland feud in the city of Limerick. No evidence was adduced nor was any explanation put forward – even in cross-examination - to support the accomplice theory, other than by reference to the list of matters alluded to above. Specifically, no motive was ever suggested as to why Owen Treacy, who was understood and known to be a member of the “Keane faction” would, for no apparent reason, have betrayed his uncle in the manner suggested.
In the aftermath of the murder of Kieran Keane, the evidence in this case clearly demonstrates that having being stabbed on multiple occasions and left for dead, Owen Treacy was extremely fortunate to find an inhabited house on the unlit country road where the murder of his uncle had just taken place. Whilst the injuries were not life threatening, they were of an extensive and serious variety. His testimony is to the effect that the frenzied stabbing attack on his person only ceased when he acted as though he was dead. One of his assailants said repeatedly “he is dead, he is dead”. None of this evidence points towards the participation of Owen Treacy in this offence as an accomplice, but rather emphatically underlines that he too was the victim of the applicants herein.
For these reasons, the Court is satisfied that the learned trial judge acted was fully entitled to hold that there was no sufficent evidence adduced in the instant case such as would suggest that Owen Treacy was a participant in the murder of his own uncle. That is not to say that there were not inconsistencies in his evidence. There were, but the Court is satisfied that these inconsistencies were adequately highlighted by the learned trial judge in the course of his summing up to the jury.The Court dismisses this ground of appeal also.

FAILURE TO FULLY INVESTIGATE THE CHARGES
Finally, it was argued, albeit somewhat faintly, that there may have been an unfair trial because certain lines of inquiry were not more fully pursued by the gardaí. Amongst other contentions advance in support of this complaint it was argued:-
(a) the gardaí should have questioned Owen Treacy further about inconsistencies in his statements
(b) the gardaí should have questioned Owen Treacy’s family to whom he spoke before implicating Dundon and McCarthy
(c) the gardaí should have pursued Owen Treacy as to why he had no torture wounds
(d) the gardaí failed to swab the Hiace van or Treacy’s hands for firearm residue
(e) the gardaí failed to enhance the quality of the video at the filling station or ask Barry Fitzgerald to identify himself, if possible, from the video
(f) some reference had been made by Owen Treacy while in hospital to Quilligan’s Yard but this was never followed up
The Court is unimpressed with this submission. In a sense, the defence of every case involves an attempt to dismantle the prosecution case, highlight shortcomings and draw attention to omissions or inconsistencies of one sort or another. Some prosecution cases may be so clearly wanting in one or more respect that an application for prohibition may in rare circumstances be brought to stop the trial taking place at all. However, that is a course to be taken prior to trial if it is deemed appropriate. No such application was ever made despite the multiple sources of legal advice and assistance available to the various applicants. One can only assume that there was no perception that such an application would have had any prospect of success, a view indeed which this Court would share.
In the events which transpired, the defence, despite cross-examining Owen Treacy for days on end, failed to convince the jury that the garda investigation was in any way inadequate.
The Court refuses the application for leave to appeal on all grounds in this case.