The Court of Appeal has quashed Tadgh Butler’s murder conviction after finding that the trial judge should have told him his revised account of the stabbing could not be considered by the jury unless he gave sworn evidence or called other evidence to support it.
The court allowed Butler’s appeal on that ground alone. It said it would consider in due course whether to order a retrial; the judgment did not decide that question.
Butler had been convicted by a Central Criminal Court jury in May 2015 of murdering his cousin, Michael O’Dwyer, and sentenced to life imprisonment. The appeal judgment, delivered by Mr Justice Mahon on 3 July 2017, records that the men had been drinking with two others at a house in County Waterford when a row broke out. The prosecution case included a statement by Anthony O’Grady, who said he witnessed Butler stab O’Dwyer, and evidence from Butler’s former partner that he admitted the stabbing during a prison visit. O’Grady later said he could not remember the events; his statement was admitted at trial under section 16 of the Criminal Justice Act 2006.
On the sixth day of the trial, Butler parted company with his legal team and sought an adjournment to engage new lawyers. The trial judge refused and the trial continued with Butler representing himself. He later recalled O’Grady and put forward a different account: that he had accidentally stabbed O’Dwyer while struggling to take a knife from O’Grady. O’Grady denied that account. Butler did not give evidence or call witnesses.
The Court of Appeal said the trial judge had discretion to continue the trial without counsel, given how far the prosecution case had progressed. But it found the judge should have gone further than reminding Butler that he could give evidence under oath. Once it became clear Butler believed his account could be considered through his questions and closing speech, the judge should have explained that the jury could not treat those unsworn statements as evidence.
The appeal court rejected Butler’s other complaints. It found that evidence about his silence during Garda interviews had been admitted at the request of his legal team and that the jury was directed not to draw an adverse inference from his silence. It also found no basis for excluding the former partner’s evidence, and upheld the admission of O’Grady’s statement.
The court further held that the prosecution was entitled to make a closing speech, despite Butler being unrepresented by that stage. It said most of the prosecution evidence had already been heard and the remaining witnesses, apart from O’Grady’s recall, dealt with brief, uncontested matters.