Saturday 1 October 2016

Man jailed for bog murder faces retrial after successful appeal against conviction

Ruaidhrí Giblin

Published 18/05/2015 | 15:35

Bruno Lemes de Sousa
Bruno Lemes de Sousa

A man jailed for life for the murder of a Brazilian national whose body was discovered in a boghole outside Listowel, Co Kerry three years ago faces a retrial following a successful appeal against conviction.

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John-Paul Cawley (22), and Wenio Rodriguez Da Silva (31), both with addresses at Ardoughter in Ballyduff, Co Kerry, pleaded not guilty to the murder of Bruno Lemes De Sousa at Shronowen Bog, Listowel between February 16 and 17 2012. Cawley had pleaded guilty to manslaughter but this was not accepted by the prosecution.

A jury at a Kerry sitting of the Central Criminal Court found both men guilty of murder and they were each given the mandatory life sentence by Mr Justice Garrett Sheehan on May 22 2013.

Cawley successfully appealed his conviction today/yesterday(MONDAY) and faces a Central Criminal Court retrial while Da Silva lost his appeal and his life sentence still stands.

Cawley appealed his conviction on the single ground that the trial judge erred in failing to adequately direct the jury on the onus of proof.

In its judgment delivered today/yesterday(MONDAY), the Court of Appeal stated that there is a statutory presumption that a person intends the natural and probable consequences of their actions, but that presumption can be rebutted.

However, it is not for a defendant who denies murder, as did Mr Cawley, to prove that the statutory presumption has been rebutted.

A defendant does not have to prove anything. On the contrary, the prosecution bears the burden of proof in a criminal trial and must prove the defendant's guilt beyond reasonable doubt.

Accordingly it was for the prosecution to prove beyond reasonable doubt that the statutory presumption had not been rebutted. While the trial judge correctly instructed the jury concerning the existence of the statutory presumption, he did not go on to further explain to them that it was for the prosecution to prove beyond reasonable doubt that the statutory presumption had not been rebutted. The failure to do so was an error.

Speaking on behalf of the Court of Appeal, Mr Justice John Edwards said it was true that the trial judge had expressly told the jury in general directions that the burden of proof at all times rests with the prosecution but that was not sufficient.

It was imperative for the jury to be told that the burden of proving that the presumption had not been rebutted rested at all times on the prosecution, the judgment stated. “The jury were not told that in this case.”

There was “some evidence” capable of rebutting this presumption and it was necessary for the jury to at least engage with the issue and to consider whether the prosecution had proven beyond a reasonable doubt that the presumption had not been rebutted.

“One cannot therefor foreclose on the possibility that the jury might have approached this aspect of their task in the mistaken belief that it was for (Cawley) to discharge a burden of rebutting” the presumption,” the judgmet stated.

Accordingly, Mr Justice Edwards, who sat with President of the Court of Appeal Mr Justice Seán Ryan and Ms Justice Mary Finlay Geoghegan, ordered a retrial.

Cawley was remanded in custody to appear before the next list to fix dates in the Central Criminal Court.

Mr Justice Edwards said the court had not seen fit to uphold any of Da Silva's ground's of appeal and his appeal was dismissed.

 

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