Saturday 20 January 2018

Man (27) found guilty of murdering homeless man found in rubbish chute appeals his conviction

David O’Loughlin
David O’Loughlin

Ruaidhrí Giblin

A Cork man found guilty of murdering a man he put in the refuse chute of an apartment complex has brought an appeal against his conviction arguing that the jury “ought not to have” visited the chute before delivering their verdict.

David O’Loughlin (30), of Garden City Apartments, North Main Street, Cork, had pleaded not guilty to the murder of Liam Manley (59) at his apartment complex in the city on May 12th 2013.

A Central Criminal Court jury sitting in Cork found O'Loughlin guilty of murder and he was accordingly given the mandatory life sentence by Mr Justice Paul Carney on March 31, 2015.

The Court of Appeal heard today that the jury asked to visit the apartment complex before delivering their verdict. Trial judge Mr Justice Carney agreed to the request.

Opening an appeal against conviction today, O'Loughlin's barrister, Michael O'Higgins SC, said it was an “unusual case, factually and legally”.

Normally in a murder case, Mr O'Higgins said, there is an assault with a gun or knife. There is action and a result. But in this case, the death occurred when the unfortunate deceased was placed in a chute at the bottom of which there were large bins.

Mr O'Higgins said the deceased was effectively snagged as he went down the chute and died from a form of asphyxiation.

That outcome, he said, had not been predicted or foreseen. O'Loughlin believed bags of rubbish at the bottom of the chute would break Mr Manley's fall, counsel said.

Also, unlike other cases, where a murder arises out of a fight, the initial contact between O'Loughlin and the deceased was “kind and humane”, Mr O'Higgins said. O'Loughlin was in Cork city centre when he saw the unfortunate Mr Manley and got him something to eat.

Mr O'Higgins said something occurred back in the flat which wasn't very clear. It would appear there was a discussion which “triggered” Mr O'Loughlin. He struck the deceased, evicted him and put him in the chute which was all “reprehensible behaviour for which he apologised”.

However, there was no direct causal connection between the placing in the chute and death, Mr O'Higgins said.

After his charge to the jury, the defence asked the trial judge to explain to them that they should not convict O'Loughlin of murder unless they were certain he foresaw serious harm occurring.

However, Mr O'Higgins said there was no evidence the trial judge gave any consideration to the argument that what occurred was not the natural and probable consequence of his actions and “thus not forseeable”. He said the trial judge's finding in that regard was “totally flawed”, Mr O'Higgins said.

Turning to the visit of the jury to the chute, Mr O'Higgins asked whether the court actually had power to do it. The request was made by the jury and no formal application was made by either party.

The court heard it wasn't common for a jury to visit a location but it was by no means unheard of. It was not known to have happened during jury deliberations before, which is what happened in this case.

After the visit to the chute, Mr O'Higgins said it emerged that the jury “performed some kind of experiment”.

He said a stone was thrown down the chute. Was it to satisfy some off-beat question a single juror had or had the jury formed a view of something that might have involved force or speed or physics, counsel asked.

There was simply no way of knowing if it was one juror with a concern, which wasn't a real concern, or whether somebody was getting into the physics of it which in effect introduced new evidence into the case, counsel submitted.

Mr O'Higgins said the whole process took place in the absence of both parties. “It ought not to have happened to begin with”, ought not to have happened in the absence of both parties and the “experiment” with the stone ought not to have happened, counsel submitted.

Mr O'Higgins asked how the prosecution could say whether what happened was fair or not when they weren't present. He also asked how they could say they did not need to be there because it wasn't pivotal to the decision.

Counsel for the Director of Public Prosecutions, Seán Gillane SC, said the act of throwing the unfortunate deceased into the chute was an assault. There was a “forceful entry” into the chute and injuries consistent with pressure.

In relation to the “site visit”, Mr Gillane said there was statutory authority for a jury to visit any location right up to the verdict to be found in the Juries Act.

He said the request had “come from left-field”. There wasn't a formal application from either party to do it, the request was made by the jury.

Mr Gillane said it was clear to him that the defence at the time wanted to facilitate the visit and he could vividly recall meeting senior defence counsel (the late Brendan Nix SC) at the site at the time.

There was no question of either the prosecution or the defence supervising the visit, participating or contributing to it, Mr Gillane said. The parties heard about the “throwing of the stone” when they returned to court. Not only was there no complaint but the matter was “let sit” and the verdict was recorded sometime later, Mr Gillane said.

He said an important aspect of the case had not taken place “behind the accused's back”.

Mr Justice George Birmingham, who sat with Mr Justice Alan Mahon and Mr Justice John Hedigan, said the court would reserve its judgment.

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