Sunday 23 October 2016

Man jailed for murder of mum-of-three wins appeal against conviction

Ruaidhrí Giblin

Published 15/12/2015 | 11:35

Gardai investigating inside the house of Olivia Dunlea O'Brien (inset)
Gardai investigating inside the house of Olivia Dunlea O'Brien (inset)

A Cork man jailed for life last year for the murder of a mother-of-three in her home, which he then set on fire, has won an appeal against conviction now faces a possible retrial.

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Darren Murphy (38), of Dan Desmond Villas, Passage West, Co Cork had pleaded not guilty to murdering Olivia Dunlea at Pembroke Crescent in Passage West on February 17 2013 but admitted killing her.

Murphy had also admitted setting fire to Ms Dunlea's home because, he claimed, he “didn't want the kids to find her” and pleaded guilty to a second charge of arson.

He was found guilty of her murder by a Central Criminal Court jury following four hours of deliberations and was given the mandatory life sentence by Mr Justice Paul Carney on May 29 2014.

Muprhy successfully appealed his conviction on the question of the trial judge's definition of provocation to the jury.

The Court of Appeal allowed his appeal today and remanded him in custody to appear before the Central Criminal Court at its next list to fix dates.

Counsel for the Director of Public Prosecutions, Paul Carroll BL, told the court that the DPP would be seeking a retrial.

On Murphy's account, Ms Dunlea had allegedly provoked him by making “suggestions”, according to the judgment, that a man with whom she had previously been intimate was calling to her house on the night in question.

Giving judgment Mr Justice Alan Mahon said the trial judge's quoted definition of provocation accurately represented the legal principles to apply to the defence but it could not “supplant the desirability of a comprehensive explanation” in the context of the facts of the case.

Mr Justice Mahon said the trial judge's unwillingness to go further than he did was “perhaps understandable” but directing a jury was an exercise in instruction and communication and was “part of the skill demanded of a judge”.

A trial judge should be in a position “to explain complex legal principles to a jury” while maintaining impartiality. It was not enough that complex legal principles were placed before a jury in the abstract, “albeit accurately”, Mr Justice Mahon stated.

There also needed to be effective instruction on how those principles might apply in the case at trial, he said.

This would not be “entering the arena” as was the trial judge's concern. Rather it would provide important assistance to a jury and was something a judge ought to be well capable of undertaking.

The court was satisfied that the trial judge's genuinely held concern was unfounded and that being “perhaps overs scrupulous” on this issue, he unwillingly fell into error elsewhere, namely, how the principles he was expounding in the abstract might find practical application in the trial.

Even if the jury had understood the legal principles applicable to the defence of provocation, the trial judge clearly misdirected the jury at this point, the judgment stated.

The court was “troubled” by the portion of his direction which dealt with the verdicts that might be recorded.

To have implied, as he did, that murder was the only possible verdict in the event of the jury being satisfied that Murphy had an intention to kill or cause serious injury was incorrect.

Counsel for Murphy, Michael Delaney SC, had requested the judge to recall the jury on the basis that they may have been confused but the judge refused to do so.

The Court of Appeal considered his refusal to be an error, Mr Justice Mahon said.

The court allowed the appeal and remanded Murphy in custody to appear before the Central Criminal Court at its next list to fix dates.

Mr Justice Garrett Sheehan, who sat with Mr Justice Mahon, and Mr Justice John Edwards, said it was an appropriate case for a retrial.

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