Judge 'wrong' to allow editing of statements

Laide judgment: A Co Monaghan man has won his appeal against conviction for the manslaughter of student Brian Murphy after a fight outside Club Anabel in Dublin five years ago. The Court of Criminal Appeal has directed that Dermot Laide be retried on the manslaughter charge.

However, the three-judge court upheld the conviction of Laide (23), Rossvale, Co Monaghan, on a charge of violent disorder, also arising from the incident outside the night club. Laide is serving a two-year sentence on that charge.

The court also granted an appeal by Desmond Ryan (24), of Cunningham Road, Dalkey, Dublin, against his conviction for violent disorder. No retrial was ordered.

The convictions of the two men followed a seven-week trial a year ago involving 103 witnesses arising from the death of Mr Murphy (18), who died after a fracas in the early hours of August 31st, 2000, outside Club Anabel, which is attached to the Burlington Hotel in Dublin.

Last year the court rejected an appeal by Seán Mackey (24), of South Park, Foxrock, Dublin, who was jailed for two years for violent disorder connected with the same fracas. A fourth accused, Andrew Frame (23), of Nutley Lane, Donnybrook, Dublin, was acquitted of violent disorder.

Following its judgment yesterday the court adjourned the Laide case for mention on March 15th, when it is expected that the question of his retrial and his appeal against his two-year sentence on the violent disorder charge will be raised.

In allowing Laide's appeal on the manslaughter conviction, the court ruled that the trial judge was wrong in permitting a certain process of editing statements of Laide's co-accused and in allowing the statements to go to the jury in that edited form.

The statements in question were by Mackey and contained allegations that he saw Laide punch Mr Murphy a number of times and also saw him kick Mr Murphy while the latter was on the ground.

Following the editing process, Laide, at the direction of the trial judge, was referred to in part of the statements as Mr A. The trial judge had permitted counsel for Andrew Frame and for Desmond Ryan to put to witnesses that their clients were not Mr A.

Giving the court judgment, Mr Justice McCracken, sitting with Mr Justice Murphy and Mr Justice Peart, said that much of what was in Mackey's statements went well beyond the prosecution case against Laide. In particular, the prosecution had not alleged, and had not called evidence, that Laide had kicked Mr Murphy while on the ground. The prosecution had fairly said it could not establish who had kicked Mr Murphy.

It was also of great relevance that the then State pathologist, Dr John Harbison, had said he could not say what blow or kick, or whether any blow or kick, had led to the death of Mr Murphy. He gave his professional opinion that the fatal strike was a kick rather than a blow.

After the statement-editing process and following the decisions to allow counsel for Mr Frame and Mr Ryan to put questions to witnesses that their clients were not Mr A, this left counsel for Laide in "a totally invidious position", Mr Justice McCracken said. They could not put to witnesses that Laide was not Mr A and, by not asking that question, the jury could infer that Mr A was Laide. He said the court was satisfied there was a real risk and probability that the jury had so inferred.

The court had concluded there was a real possibility the jury had convicted Laide not on the basis of participation in a common design (and the court accepted common design was properly explained by the trial judge to the jury) but on the basis of his own actions and because they believed he was the person who kicked Mr Murphy. The jury could only have decided that from the statements of Mackey.

The fact remained that the jury had before it Mackey's statements and probably was aware of the identity of Mr A, the judge said. The trial judge did not advert to the problem in those terms in his charge to the jury and, even if he had, it would have been very difficult to give adequate warnings.

The court regarded as insufficient the trial judge's general warning to the jury on the dangers of convicting a person on the basis of statements (as opposed to evidence) of their co-accused. The judge ought to have realised the jury would identify Mr A and should have given a specific warning. The court concluded there was "a real risk" the decisions regarding the statements influenced the jury in reaching the manslaughter verdict.

The court held that the manslaughter conviction was unsafe and should be set aside.

However, Mr Justice McCracken added, the court did not believe the circumstances were such as to direct an acquittal on the manslaughter charge, as the jury may have reached their conclusion without regard to Mackey's statements.