The Court of Criminal Appeal has been invited to share a 'deep sense of unease' about Dermot Laide's conviction for the manslaughter of Brian Murphy, writes Carol Coulter, Legal Affairs Correspondent.
The Court of Criminal Appeal does not examine afresh the evidence given in a criminal trial. The verdict of guilt or innocence, based on a finding of fact in the light of the evidence, is for the jury to decide, or, in certain special cases, for the three judges in the Special Criminal Court.
What the Court of Criminal Appeal examines is the conduct of the trial, and whether decisions made by the judge during it could have led to the wrong decisions being made by the jury.
The arguments heard in the appeal of Dermot Laide and Desmond Ryan against their convictions - for manslaughter and violent disorder respectively - therefore were legal arguments.
What the judges of the Court of Criminal Appeal are being asked to do is find that, because of the way the trial was conducted, the convictions are unsafe and should be quashed.
The bulk of the hearing concerned Laide, the only person convicted of actually contributing to the death of Brian Murphy outside Anabel disco on the night of August 31st, 2000.
He was convicted of manslaughter; Andrew Frame was acquitted by direction of the judge; Desmond Ryan was acquitted of manslaughter by the jury; and, in the case of Seán Mackey, they could not agree.
The case was plagued by legal arguments in the absence of the jury, and many of those arguments were heard again in the Court of Criminal Appeal last week. Much of this concerned the way in which statements made by the four were edited so that the four accused did not implicate each other. The decision to edit them was taken by Judge Michael White following submissions from counsel in the absence of the jury.
Two publications carried reports of the arguments in the absence of the jury and were later convicted of contempt of court. This, and other aspects of media coverage, also played a part in the appeal.
The way in which the editing was done formed the centrepiece of Laide's appeal. His counsel, Mr Michael O'Higgins SC, argued that the editing process left his client, described as "Mr A", effectively associated with kicking Brian Murphy on the ground, even though almost no direct evidence was heard that he had actually done so.
Yet his own client's statement had been edited in a way which removed references to Seán Mackey giving a "flying kick" to Mr Murphy, or to him "gagging for a fight", and various other statements which inculpated Mr Mackey. The fact that only one individual was identified at the end of the editing process, and that this individual was his client, was unfair, he said. "When the music stopped, he was left holding the parcel." The judge's attempt to balance everyone's rights "came to unravel", he said.
Another ground which was argued concerned the issue of "common design", which means that all those involved in an attack in which a person died share responsibility for the death. The indictment carried the names of the four young men, and the prosecution argued at the trial that Brian Murphy died following a "concerted attack."
However, only one was convicted of manslaughter. Mr O'Higgins argued, therefore, that "common design" did not apply, and the only evidence which could be used against Laide was evidence of his direct involvement in attacking Mr Murphy. This evidence, along with his own statement, was of his hitting the dead man, while the then State Pathologist, Prof John Harbison, said that a kick was more likely to have killed him. He pointed out that there were four to six people kicking Mr Murphy who have never been identified.
The prosecution has countered these arguments, pointing out that Prof Harbison did not state what precisely killed Mr Murphy and that Laide's counsel did consent to the editing process.
Ryan is appealing his conviction for violent disorder on two grounds: that the trial was prejudiced by the media coverage and that his arrest was unlawful.
His counsel, Mr Patrick Gageby SC, pointed out that the search warrant on which gardaí entered his parents' house was not valid, which has been acknowledged. Therefore, he argued, they were trespassers, and the arrest they carried out was invalid, which makes invalid the statement he made while he was in their custody in the Garda station, which formed the main basis for his conviction.