A man jailed for life for the murder of a Brazilian national whose body was discovered in a boghole outside Listowel, Co Kerry, three years ago faces a retrial following a successful appeal against conviction.
John-Paul Cawley (22), and Wenio Rodriguez Da Silva (31), both with addresses at Ardoughter in Ballyduff, Co Kerry, pleaded not guilty to the murder of Bruno Lemes de Sousa at Shronowen Bog, Listowel, between February 16th and 17th, 2012. Cawley had pleaded guilty to manslaughter but this was not accepted by the prosecution.
A jury at a Kerry sitting of the Central Criminal Court found both men guilty of murder and they were each given the mandatory life sentence by Mr Justice Garrett Sheehan on May 22nd, 2013.
Cawley successfully appealed his conviction on Monday and faces a Central Criminal Court retrial while Da Silva lost his appeal and his life sentence still stands.
Cawley appealed his conviction on the single ground that the trial judge erred in failing to adequately direct the jury on the onus of proof.
In its judgment delivered Monday, the Court of Appeal stated that there is a statutory presumption that a person intends the natural and probable consequences of their actions, but that presumption can be rebutted.
However, the court said it is not for a defendant who denies murder, as did Cawley, to prove that the statutory presumption has been rebutted.
A defendant does not have to prove anything. On the contrary, the prosecution bears the burden of proof in a criminal trial and must prove the defendant’s guilt beyond reasonable doubt.
Accordingly, it was for the prosecution to prove beyond reasonable doubt that the statutory presumption had not been rebutted.
While the trial judge correctly instructed the jury concerning the existence of the statutory presumption, he did not go on to further explain to them that it was for the prosecution to prove beyond reasonable doubt that the statutory presumption had not been rebutted. The failure to do so was an error.
Speaking on behalf of the Court of Appeal, Mr Justice John Edwards said it was true that the trial judge had expressly told the jury in general directions that the burden of proof at all times rests with the prosecution but that was not sufficient.
It was imperative for the jury to be told that the burden of proving that the presumption had not been rebutted rested at all times on the prosecution, the judgment stated. “The jury were not told that in this case.”
There was “some evidence” capable of rebutting this presumption and it was necessary for the jury to at least engage with the issue and to consider whether the prosecution had proven beyond a reasonable doubt that the presumption had not been rebutted.
“One cannot therefor foreclose on the possibility that the jury might have approached this aspect of their task in the mistaken belief that it was for (Cawley) to discharge a burden of rebutting the presumption,” the judgment stated.
Accordingly, Mr Justice Edwards, who sat with President of the Court of Appeal, Mr Justice Sean Ryan and Ms Justice Mary Finlay Geoghegan, ordered a retrial.
Cawley was remanded in custody to appear before the next list to fix dates in the Central Criminal Court.
Mr Justice Edwards said the court had not seen fit to uphold any of Da Silva’s ground’s of appeal and his appeal was dismissed.
According to the judgment, Sandra Cawley told the jury that she had been living in a house in Ballyduff with her then partner Brazilian national Da Silva, her two children and latterly, her two brothers, one of whom was John-Paul Cawley.
On February 16th, 2012, another Brazilian man Bruno de Sousa, the deceased, visited the house apparently to sell Da Silva a car.
At some point, Da Silva told Sandra Cawley that de Sousa had said something about her voice “being sexy” and about her being “hot”.
Ms Cawley said that when Da Silva relayed this to her, he did not look his normal self.
Later, Ms Cawley asked Da Silva what de Sousa was doing there and Da Silva replied: “Oh I’m going to beat him up”.
Da Silva returned to the kitchen and, despite having asked him why he would beat a man up for saying something like that, Ms Cawley heard a “thunt” sound coming from the kitchen.
As she entered the kitchen, Ms Cawley said she saw Da Silva holding a bar or tool in his hand and de Sousa lying on the floor “kind of half legs up ... and he had his hands over his head”.
De Sousa said “call the gardaí” and then Da Silva ordered Ms Cawley to “get out of here”. As she withdrew she heard two more “thunts”.
Having ran upstairs to her two children, she was coming back down the stairs when she met Da Silva, her two brothers and de Sousa coming up the stairs.
Da Silva was carrying the bar she had seen earlier and John Paul Cawley had a knife in his hand.
De Sousa’s hands were tied up with rope and Da Silva was holding one end of the rope that had been used to bind him. She said de Sousa looked terrified and there was blood coming down his face.
She told the jury that she could see the pull down stairs leading up to the attic being opened.
Sometime later, Da Silva and John-Paul Cawley came back down the stairs.
Having answered the door to another man, Sandra Cawley said she then saw both men washing their hands and Da Silva had changed his clothes.
After the guest had left, Da Silva asked Ms Cawley for her phone. Either Da Silva or John-Paul Cawley then went upstairs and took two photographs of de Sousa with the phone. The photographs showed de Sousa with his wrists still tied and his wrists further tied to his legs.
Ms Cawley told the jury that Da Silva then went to his Audi car to the front of the house and put de Sousa in the back of the vehicle.
Ms Cawley was ordered to get the kids and put them in the car de Sousa had arrived in while John-Paul Cawley later got into the other car with Da Silva and de Sousa.
After a short distance, John-Paul Cawley switched cars with his brother Charlie, then both cars proceeded through the village of Ballyduff and on to Lisseltown. From there, they proceeded along a road leading to a bog.
The lead car stopped, Da Silva got out and informed the car behind that he had run out of petrol.
Ms Cawley asked what was going on and she was told “don’t worry”.
De Sousa was then removed from the Audi car by Da Silva. He was supported on one side by Da Silva and on the other side by John-Paul Cawley and the three of them proceeded down towards the bog.
De Sousa’s hands were still tied but his legs were free. He was struggling somewhat.
Ms Cawley could not see anything after that.
Sometime later, Da Silva and John-Paul Cawley returned but there was no sign of de Sousa.
When Ms Cawley asked where de Sousa was, Da Silva replied “don’t worry, he’s dead”.
Ms Cawley then asked “why did you kill him, it was a stupid thing”, Da Silva made no verbal response but took off his clothing and put it in the boot of the car. He was wearing nothing at all.