The Court of Criminal Appeal has refused John Paul Brett’s application for leave to appeal his murder conviction, finding that evidence introduced by a co-accused’s witness did not make the joint trial unfair or the verdict unsafe.
Brett and Jason Quinlan were convicted by a majority jury verdict of murdering Brian McKee in Mahon, Cork, on 25 August 2007. The prosecution case was that they jointly assaulted McKee. It said Quinlan fatally stabbed him, while Brett took part in the assault but was not armed with a knife.
At trial, Rebecca Delaney, a defence witness called for Quinlan, testified that she had seen Brett with a knife tucked into his trousers when he first arrived by car. She did not say she saw him with a knife during the later assault. Brett’s counsel objected, arguing the evidence was prejudicial and had not been part of the prosecution case. The trial judge allowed it and refused an application for separate trials.
The trial judge said Brett could recall himself or other witnesses, or call further witnesses, to address Delaney’s evidence. Brett’s defence chose not to recall him. His counsel cross-examined Delaney, challenging her credibility.
On appeal, Brett argued that the late evidence had unfairly changed the case he had to meet after he had already testified. The prosecution submitted that Quinlan was entitled to call a witness relevant to his defence and that Brett had been able to contest her evidence.
The appeal court said joint trials can involve evidence called by one accused that harms another accused’s case. That alone does not make a trial unfair; the question is whether the other accused had a fair opportunity to address and challenge it.
The court noted that Delaney’s evidence concerned Brett’s alleged possession of a knife when he first arrived, well before the fatal assault. No witness said they saw Brett with a knife during the assault, and the prosecution had maintained that he was not armed. The court also noted that Brett’s defence had received Delaney’s statements before trial and knew she might be called.
Considering the trial as a whole, the appeal court concluded Brett had been able to challenge Delaney and could have recalled witnesses or called additional evidence. It held that the trial judge acted within his discretion in refusing a separate trial and that no miscarriage of justice or unsafe verdict had resulted. The application for leave to appeal was refused.