Monday 19 March 2018

Man who shot his friend and left him in a permanent vegetative before his death two years later fails in murder appeal

Ian Kenny who died in 2009
Ian Kenny who died in 2009

Tim Healy

A man has failed in a fresh appeal over his conviction for the shotgun murder of his friend who was left in a permanent vegetative state for almost two years before he died.

The Supreme Court was asked to consider certain legal issues of exceptional public importance raised by Jonathan Dunne, including whether duress can be a defence to a murder charge.

A previous appeal by Dunne (28), Windmill Park, Crumlin, over his conviction in 2012 of the murder of Ian Kenny, who died in Beaumont Hospital on July 31, 2009, was rejected by the Court of Appeal.

Mr Kenny was twice shot by Dunne with a sawn-off shotgun on July 4, 2007, and was in a coma 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, Co Dublin. 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.

Dunne claimed he was forced to carry out the shooting by unnamed persons who threatened the lives of himself and his family.

Dunne was 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, he was charged with murder, convicted and jailed for life.

In considering the new appeal the Supreme Court was first asked to decide whether he could be convicted of murder at a point removed from the incident and where there had been lawful (medical) intervention in the meantime.

Giving the Supreme Court's decision, Ms Justice Iseult O'Malley said he could be convicted of murder in such circumstances.

She said after being treated two years in his persistent vegetative state, Mr Kenny developed severe pneumonia in both lungs.  A medical decision was taken, with the approval of Mr Kenny's father, that there should be not be a particular treatment or further intervention in the event of sudden cardiac or respiratory arrest.

In those circumstances, to hold the shooting by Dunne caused the death does not involve visiting the consequences of that non medical intervention decision, she said.  It "entails recognition of the fact that he (Dunne) is responsible for the condition that ultimately led to the death".

On a second question of whether duress, which is a defence in other crimes, could be a full or partial defence in murder, Ms Justice O'Malley said it could not.

To do so would involve uprooting a rule embedded for some hundreds of years in common law.  It would mean the creation of a new law to a greater or lesser extent, she said.

Such an alteration  to the law is so fundamental it could only be introduced by way of legislation, she said.

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