The Court of Criminal Appeal has dismissed Alex Freiberg’s application for leave to appeal his conviction for the murder of Kieran Cambridge in Clonmel in September 2007.
A jury at the Central Criminal Court convicted Freiberg on 17 December 2008. The appeal court, in a judgment delivered on 17 May 2010, found that none of the grounds advanced had been made out. It was deciding whether to grant leave to appeal; the judgment did not retry the murder charge.
The main challenge concerned what the defence described as a “single-track” Garda investigation focused on Freiberg, and the trial judge’s directions to the jury on that issue and the absence of forensic evidence. The appeal court said the defence had not established that the investigation was incompetent or inadequate. It noted evidence of extensive inquiries, including about 300 statements, searches, interviews with hackney drivers and analysis of telephone traffic and text messages.
No forensic evidence linked Freiberg to the killing, and the knife or knives were never found. The court said the trial judge had repeatedly made the lack of forensic evidence clear to the jury. It also upheld the direction that Garda incompetence, by itself, did not decide guilt, while explaining that any specific evidence lost or overlooked through incompetence could matter. The court said the defence had not established such an omission.
The prosecution case depended crucially on evidence from Catherine Shanahan, who said Freiberg entered her home at 69 Carrigeen, threatened her with a knife and went upstairs, where Cambridge was sleeping. The appeal court noted other evidence supporting parts of her account, including neighbours’ evidence of voices and movement upstairs and evidence that Freiberg was driven to a point near the house and later collected. It said the case was strong if the jury believed Shanahan.
The court rejected the argument that the jury should have received a warning about mistaken identification. Shanahan had known Freiberg intimately for years, and the court said the case concerned whether her account was true, rather than whether she had identified the wrong person.
It also upheld the trial judge’s decision not to discharge the jury after a witness, without prompting from the prosecution, repeated a statement attributed to Shanahan that Freiberg had returned to the house. The judge told jurors to ignore the remark. The appeal court found that response was within his discretion.
Two subsidiary grounds concerned Freiberg’s fitness to continue the trial without a particular drug and the handling of the witness’s remark. The drug issue was not seriously pursued on appeal; the court said Freiberg had not wanted the trial postponed and the judge had heard two medical experts who said he did not need the drug.