The Supreme Court has dismissed a Dublin man’s appeal against his conviction for murdering a love rival he had found sleeping with his partner.
The five-judge court unanimously rejected arguments made on behalf of Keith Connorton (44), who had denied murdering 32-year-old Graham McKeever, at Deerpark Avenue, Tallaght, on February 18th, 2017.
In 2019 a jury at the Central Criminal Court, by a 10:2 majority, found him guilty of murder and he was sentenced to life imprisonment. The Court of Appeal upheld that decision.
The Supreme Court decided to hear an appeal on a ground concerning the trial judge’s admission of a recording of a 999 phone call in evidence. The trial judge concluded the call was admissible under a legal exception to hearsay known as “res gestae”, which relates to a relevant, spontaneous statement made during the course of the event.
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During the criminal trial, the jury heard Connorton was living with his long-term partner Claire McGrath at Deerpark Avenue but, after an argument, she invited Mr McKeever to spend the night with her. Connorton returned at 4am to find the pair together.
A fight broke out that resulted in Mr McKeever suffering four stab wounds, including one that penetrated his heart and killed him, the trial heard. Connorton claimed he acted in self-defence after Mr McKeever punched him, breaking his eye socket, and then came at him with a knife.
In his appeal to the Supreme Court, Connorton argued the trial judge was wrong to admit into evidence a recording of a 999 call made by Ms McGrath in the aftermath of the stabbing.
In the call she told emergency services the victim was a new partner she was seeing. She said her ex-partner “came into the house and picked up a knife and went for him with it and stabbed him with it”.
During the trial it was alleged the recording was inconsistent with testimony she gave when she said her description to the operator was not accurate.
Connorton’s lawyers argued the call should be excluded under a rule against hearsay evidence, while the Director of Public Prosecutions (DPP) said the call was admissible under a rule about best evidence.
The DPP also submitted that a further exception to the hearsay rule should be recognised where high-quality evidence, such as the recording, should be admissible as a matter of common sense.
The trial judge concluded the call was admissible under the res gestae exception.
In his decision Mr Justice Séamus Woulfe said he was satisfied the res gestae exception had been properly applied in relation to the hearsay rule. While he was hesitant to make a definitive decision on the scope of the hearsay rule, the judge agreed it was correct to admit the evidence.
The judge said that when giving her evidence, no motive for concocting or distorting what she had said in the 999 call was ever put to her during cross-examination. While it would have been better for the trial judge to have expressly discounted the possibility of fabrication before the jury, the failure to do so could not render the verdict as being unsafe.
In his decision, also dismissing the appeal, Mr Justice Peter Charleton agreed that the emergency call should have been included under the res gestae exception.
This exception applies, he said, to render statements made out of court admissible only in circumstances where the witness is so enmeshed in the emotion of an ongoing situation that their remarks can be taken as proof of what they said.
Mr Justice Brian Murray said in his concurring judgment that courts should operate on the basis that, save for recognised exceptions, a statement made by a person, other than one given by a witness giving evidence in proceedings, should be inadmissible as evidence of any facts stated.
Mr Justice Maurice Collins said the trial judge acted as a gatekeeper when deciding whether the circumstances of the disputed statement by the witness were absent of any reasonable possibility of concoction or fabrication.
Noting the timing and manner of what was said in Ms McGrath’s call, the judge said he agreed with Mr Justice Hunt’s decision to admit the emergency call into evidence during the trial. Ms Justice Iseult O’Malley concurred with the decisions of the court.