The Court of Appeal has upheld Damien Fitzgerald’s and Bill O’Driscoll’s convictions for causing serious harm to Karol O’Keeffe, but quashed their convictions for robbing him of his mobile phone.
In a judgment delivered on 28 July 2017, the court dismissed the appeals against the serious harm convictions. It allowed both appeals on the robbery counts because the trial judge had been wrong in law to refuse a defence request to let the jury consider handling or possessing stolen property as alternative verdicts.
The court did not decide whether the men should face retrials on the robbery counts. It said it would hear submissions on that question. The appeal judgment addressed convictions only; the appellants’ appeals against sentence were not before the court in this judgment.
The men had been convicted by a jury in May 2015 of causing serious harm to O’Keeffe and robbing his mobile phone, valued at about €50. A third accused, Mark O’Driscoll, had pleaded guilty to the same offences. The trial judge sentenced Fitzgerald and Bill O’Driscoll to eight years on each count, to run concurrently.
The appeal court rejected arguments that the prosecution evidence was insufficient to put the charges before the jury. It said the evidence included CCTV showing the appellants together after the assault, the victim’s blood on their clothing, and footage in which Fitzgerald was seen bending down where O’Keeffe’s phone was later found concealed. The court said the evidence, considered together, could have allowed a properly directed jury to convict on the serious harm charges.
The court also rejected Fitzgerald’s complaints about a jury hearing a brief reference to him “signing on” and about the judge’s warning to disregard it. It found no basis to overturn the convictions on that ground. It rejected Bill O’Driscoll’s argument that the jury had not been adequately directed on the possibility that the victim’s blood reached his clothing through innocent contact. It also dismissed his challenge to the serious harm verdict as perverse.
On the robbery counts, the appeal court held that handling or possession of stolen property could be a lawful alternative verdict to robbery where supported by the evidence. The trial judge had mistakenly believed an alternative verdict could only be considered after directing an acquittal on robbery. The appeal court quashed both robbery convictions on that ground alone.