Monday 19 March 2018

Man convicted of shooting friend who died two years later begins appeal


Brian Kavanagh

A Dublin man has begun an appeal against his conviction for the murder of his friend who died two years after he was shot in the head.

In February 2012 Jonathan Dunne was jailed for life by Mr Justice Paul Carney having been found guilty of murdering Ian Kenny (21) by a Central Criminal Court jury.

Dunne (28), formerly of Windmill Park, Crumlin, had previously pleaded guilty to the attempted murder of Mr Kenny at Lakelands Road, Stillorgan.

He had been serving a 12-year sentence for attempted murder but in a landmark case was tried for murder after Mr Kenny died in hospital two years after the shooting.

Father-of-two Ian Kenny was shot in the head and shoulder at close range on July 4, 2007 and remained in a vegetative state until he passed away on July 31, 2009.

Counsel for the applicant, Mr Michael Bowman BL today told the Court of Criminal Appeal that causation was the substantive issue in the appeal.

He submitted that the trial judge erred in law by refusing a defence application for a direction in relation to the issue of the causation of death, consequent upon a decision not to provide full medical intervention.

Mr Bowman said it had been argued at trial that there was effectively no case to answer as the evidence on the issue of causation was not one that could be properly left to the jury and the case should have been withdrawn.

He said medical records showed that at a stage prior to his admission to Beaumont Hospital in July 2009, a decision had been made by medical professionals in conjunction with a family member not to attempt to resuscitate Mr Kenny in the event of cardiac arrest.

Counsel said there was evidence the position adopted was that Mr Kenny should not be transferred to intensive care, and should not be put on a ventilator or put on drugs to maintain his blood pressure.

Mr Bowman said there was no issue pertaining to the medical treatment received, and there was no allegation of misconduct, or that the treatment was palpably, most probably or obviously wrong.

However, he said that when Mr Kenny presented at hospital a decision was made to remove him from an environment where medical treatment was available to a location where he was not being observed.

Counsel argued that although Mr Kenny may have passed away in any case, he equally could have survived and pulled through.  However, he said as a result of independent actions taken by third parties no medical intervention was to take place.

Mr Bowman submitted that the consequences of the actions of a third party were being visited on Dunne, who had to answer for these actions.

Counsel said the question was whether the act of removing Mr Kenny from a caring environment to a “quasi-palliative” environment was enough to visit the consequences of a murder charge on the accused.

He said the appeal was also being brought on a ruling by the trial judge that duress was not an available defence on a charge of murder.

Counsel also said there was with the trial judge’s response to a request from the jury at the beginning of their deliberations for further recitation of the definition of murder and the issue of causation.

Mr Bowman said that Mr Justice Carney told the jury that the law was straightforward and that Dunne shot Mr Kenny, who died as a result, which was a “hammer blow” to the subtleties of the defence.

In reply, counsel for the State, Mr Denis Vaughan-Buckley SC, submitted that the legal cause of the death of Mr Kenny was the shooting on July 4, 2007 and argued that the causation link had not been broken.

He said the decision taken by the jury on foot of the evidence was correct and he could not see how the jury could come to a contrary conclusion.

Mr Buckley said that Mr Kenny was treated with antibiotics in hospital and there was no question of Mr Kenny having been put in a room to die or of not being medically treated. Counsel told the court that Mr Kenny was “treated until the very end”, did not go in to cardiac arrest and died of pneumonia.

Counsel said that Mr Kenny could have been put on a ventilator but a decision had been made not to do that.

He submitted that the trial judge was correct in law in ruling that the defence of duress was not open to the defendant in this case.

Mr Justice Donal O’Donnell, presiding at the Court of Criminal Appeal, said the court would reserve judgement in the matter and deliver it as soon as possible.

Dunne’s prosecution was a landmark case as prior to 1999 a person could not be tried for the murder of a person who survived longer than a year and a day.

However that law was changed, making Dunne the first person in the state to be tried for a murder in which the victim died outside that time frame.

The jury heard Dunne shot Mr Kenny in the head and shoulder with a sawn-off shotgun and then pushed him out of the passenger seat of his vehicle before setting fire to it, with the gun inside it, a short distance away at Dargle Woods, Knocklyon.

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