Sunday 21 July 2019

'Horror' in Kenneth O'Brien case should not determine verdict, jury told

Kenneth O'Brien
Kenneth O'Brien
Andrew Phelan

Andrew Phelan

The jury in the trial of Paul Wells for the killing of Kenneth O’Brien has been told by the defence there are three possible verdicts - murder, manslaughter or acquittal.

Concluding his closing speech, barrister Michael O’Higgins SC said the jurors should acquit Mr Wells “outright” if they conclude he acted “reasonably” in self defence when he shot Mr O’Brien.

They could find him guilty of manslaughter if they concluded that he believed his life was in danger but the shooting was an “over-reaction”.

If they found he did not believe this and his reaction was grossly excessive and completely unjustified, “that would be murder,” Mr O’Higgins said.

Mr Wells (50), of Barnamore Park, Finglas, has pleaded not guilty to murdering Mr O’Brien (33) at that address between January 15 and 16, 2016.

He has admitted that he shot him dead but said it happened when they struggled during a row after Mr O’Brien turned up at his home with a gun.

The accused claimed Mr O’Brien had wanted to have his partner Eimear Dunne murdered and Mr Wells refused to kill her.

As they grappled, he said, the gun fell to the ground, they both reached for it and he thought Mr O’Brien was going to “shoot me first.”

Mr Wells said he panicked, got the gun and shot Mr O’Brien. He then dismembered his body in the yard, cutting it into 10 pieces with a chainsaw.

He put Mr O’Brien’s torso in a suitcase and his head and limbs in shopping bags, which he threw into the Grand Canal in Co Kildare.

Prosecutor Sean Gillane has said Mr O’Brien was “executed efficiently” by Mr Wells in a premeditated murder and his body “desecrated.”

Mr O’Higgins began his closing speech yesterday and concluded it today.

He told the jury the burden of proving the case was on the prosecution and there was no obligation on the defence to prove anything.

He said as part of assessing whether the prosecution had proved its case, the jurors must ask themselves if what the defence asserted was excluded beyond reasonable doubt. If it is not, he said, “you are into assessing whether self defence is operative in this case.”

He said juries were told time and time again to use their common sense but that had limitations, and “the realm of this case is way outside everybody’s ordinary, everyday life.”

“It would be wrong to convict Mr Wells because you think he’s despicable, in the same way it would be equally wrong to acquit him because you took some set against Mr O’Brien,” he said.

The prosecution had advanced propositions in favour of undermining Mr Wells’ credibility, he said. He said Mr Gillane’s assertion that Mr O’Brien arrived at Mr Wells’ house with no key, wallet or money was “palpably incorrect.”

Mr Gillane had characterised as ridiculous Mr Wells' description of scuffling with Mr O’Brien and ending up in a “rowing boat” position.

This was something that developed “at lightning speed” and if the prosecution was saying this “could not happen”, one might have thought there would be some evidence demonstrating this but that was “not forthcoming.”

The pathologist had said the trajectory of the bullet was slightly downwards and Mr Wells had been 6’4” tall. The jury was left with “what ballistically you could infer.”

No ballistics witness had been put forward with an indication of possible explanations, Mr O’Higgins said.

It was possible to walk up to someone, press a gun to their head and discharge it with such speed that they could not react, but using common sense, the reaction of most people if they felt an object touching the back of their head would be to move their head, Mr O’Higgins said.

You can only draw conclusions when you have a very firm platform of evidence.

“The level of possibility here is wide and does not give you sufficient information to draw that with any confidence,” he said.

There was “no doubt” Mr Wells told “a lot of lies” in his initial gardal interviews and Mr O’Higgins was not going to attempt to justify it.

Just because there were aspects of someone’s character that were dislikeable or aspects of evidence that the jury believed were untrue that “does not mean you can’t believe them on the core issue,” Mr O’Higgins said

“However aspects of the case might repulse you,” he told the jury, they were duty bound to give the accused a fair trial.

This was a “distinctly unpleasant case which I suggest will draw on all your reserves.”

In relation to issues of credibility, he reminded the jury that some of the things Mr Wells said did not sound credible, yet were established independent of him to be “totally or substantially correct.”

It was “much harder to brush off what Mr Wells says and say it’s not true, it’s opportunistic,” he said.

On the issue of self defence, he said if the jury rejected the prosecution’s proposition that it was a planned event then they had to ask what type of event it was.

There was only one explanation in the case, the one put forward by Mr Wells. The prosecution had not sought to advance any alternative, Mr O’Higgins said. There had been “a vague mention” about money but the prosecution had never suggested that this was an argument about money.

It was not surprising that that course was not adopted because “if it were, you would have to scrap all the planning and accept there was an argument and then you are into a situation where you might equally have to accept there was grappling about a gun.”

If the jury accepted that then, on a legal level, whether it was over money or a request to kill Mr O’Brien’s partner was “largely irrelevant because you then reach the same point where the gun was taken up and fired - was that an action that was justified as a matter of law?”

Once self defence was raised it was up to the prosecution to exclude it, he said.

Mr O’Higgins said there were three possibilities open to the jury, if the two men were grappling on the ground and Mr Wells picked up the gun and discharged it.

If the jury concluded that Mr Wells honestly believed it was necessary to preserve his own life and objectively that was a reasonable action to perform, the jury should acquit the accused “outright.”

If the jurors looked at the surrounding circumstances and concluded that Mr Wells honestly believed that his life was in danger, but the action of picking up the gun and firing it “in the heat of the moment, without due consideration” objectively was an over-reaction and excessive, they could bring in a verdict of manslaughter.

The third possibility, he said, was if they came to the conclusion that Mr Wells did not honestly believe that his life was in danger and his reaction in objective terms was grossly excessive and completely unjustified, “that would be murder.”

He asked the jury to take into consideration that “this was a fight” and “people don’t get a chance to sit down… and make informed decisions.”

“There’s a gun and there must be an apprehension that the gun may be used on you,” he said.

If the jury concluded that was what was honestly believed, he said the only question on the facts was if the reaction was reasonable - if so, it was an acquittal, he said. If the jury thought it was an over-reaction, “it’s manslaughter.”

Mr Justice Paul McDermott then began delivering his charge to the jury, summarising the case and the legal principles involved.

He said it could not be laid against the accused that he did not give evidence as this was his right.

He told the jury they must look at the facts of the case coldly. There were “difficult circumstances” in the case, he said.

“There are disturbing elements in relation to the disposal of the body,” the judge said. “The main issue in the case is how the deceased died how his death was brought about, what were the circumstances of his death.

While it may be that some of what followed immediately after might assist the jury, “the horror that might have been felt at what happened shouldn’t necessarily determine the guilt or innocence of Mr Wells.”

The jury was told not to decide on the case on the basis of “emotion, which may run high, prejudice or abhorrence.”

Their was a cold, clinical function and if they had a reasonable doubt, they must acquit, he said.

His charge continues this afternoon.

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