A man has secured a fresh appeal to the Supreme Court against his conviction for the murder of his friend who was in a permanent vegetative state for almost two years after being shot twice in a car in Dublin.
The three judge Court of Criminal Appeal said legal issues raised by Jonathan Dunne, including whether duress can be a defence to a murder charge, were of "exceptional" public importance requiring determination by the Supreme Court.
Dunne (28), Windmill Park, Crumlin, was convicted in 2012 of the murder of Ian Kenny, who died in Beaumont Hospital on July 31st 2009. Mr Kenny was shot by Dunne with a sawn-off shotgun on July 4th 2007 and was in a comatic and permanent vegetative state until his death.
Dunne previously admitted he shot Mr Kenny when the two were respectively sitting in the driver and passenger seats of a parked car on Lakelands Road, Stillorgan. A third unidentified man was also in the car.
Immediately after the shooting, the car drove off and Mr Kenny was pushed out onto the road. Mr Dunne claimed he was forced to carry out the shooting by unnamed persons who threatened the lives of himself and his family.
Dunne was previously convicted of the attempted murder of Mr Kenny and having a firearm. He had pleaded guilty to both charges and was jailed for a total 12 years for the offences.
After Mr Kenny’s death, Dunne was charged and convicted of murder and jailed for life. He lost his appeal against conviction last July but his counsel Brendan Grehan SC this week asked the Court of Criminal Appeal to refer the case to the Supreme Court on grounds it raises points of law of exceptional public importance.
Today, the three judge CCA agreed to certify two points of law for determination by the Supreme Court after finding they raised legal issues of exceptional public importance.
The first point concerns whether an accused can be convicted of murder where the date of death alleged in the indictment occurs at a point of time removed from the incident and actions alleged against the accused, and after the lawful intervention of a third party.
Giving the CCA ruling, Mr Justice Donal O'Donnell said courts must grapple with issues of causation which can raise "notoriously difficult" problems in other fields of law, particularly when medical advances mean life can be sustained for longer and in circumstances previously hardly imaginable. This could give rise to difficult questiond of ethics and law.
Dunne's counsel had pointed to the "somewhat anomalous" form of the indictment where Dunne was charged with the murder of Mr Kenny at Lakelands Park, Stillorgan, not on July 4th 2007 when the shooting occurred, but on July 31st 2009, the date of death, the judge said.
Dunne's side argued, where Mr Kenny died from pneumonia and after a decision by doctors and his family to refrain from providing certain medical treatment, it could not properly or lawfully be said he was murdered by Dunne in an attack two years earlier, the judge said.
He also noted Deputy State Pathologist Michael Curtis had told Dunne's trial Mr Kenny died from bronchial pneumonia caused by being in a permanent vegetative state in turn caused by a brain injury suffered as a result of gun shot wounds.
The second point arose from Dunne's claim he carried out the shooting under duress but was not permitted advance a defence of duress to the jury at his trial. Mr Grehan had argued a defence of duress, particularly given the development of gangland crime, should be available to his client.
Mr Justice O'Donnell said the issue was whether duress, a defence to all other criminal charges, can be a partial or complete defence to murder and this had generated "considerable academic and practical debate".
Duress is itself a matter of common law and decisions for and against the extension of duress to charges of murder are themselves judicial decisions, he said. He noted Dennis Vaughan Buckley SC, for the DPP, had argued the law here is reasonably clear and the position cannot, or should not, be altered except by legislation.
The CCA considered the question whether duress should be a defence to murder is an issue that should, in the public interest, be resolved by the Supreme Court, he said.