The Court of Criminal Appeal has certified two questions of exceptional public importance for consideration by the Supreme Court in the case of Jonathan Dunne, whose murder conviction appeal was dismissed earlier in 2014.
The ruling, delivered on 27 November 2014, concerns an application under section 29 of the Courts of Justice Act 1924. The court certified questions about whether an accused can be convicted of murder when death occurs long after the alleged attack and after lawful intervention by a third party, and whether duress can be raised as a full or partial defence to murder.
Dunne was convicted of murdering Ian Kenny on 19 January 2012. The judgment says that on 4 July 2007, Dunne shot Kenny at close range with a sawn-off shotgun while they were in a stationary car. A third, unidentified man was in the back seat. Dunne maintained he had been forced to carry out the shooting by threats against him and his family.
Kenny suffered gunshot wounds to his shoulder and head, was left in a permanent vegetative state and died on 31 July 2009. The certified cause of death was bronchial pneumonia. A deputy state pathologist told the trial that the pneumonia resulted from Kenny’s vegetative state, which had been caused by the brain injury from the shooting. At Beaumont Hospital, staff and Kenny’s family agreed he would not be transferred to intensive care or given medication to maintain his blood pressure if his condition worsened; he was treated with antibiotics.
At trial, the judge did not allow the jury to consider duress, relying on earlier authorities. The jury considered causation and found Dunne guilty. His appeal, which challenged the causation direction, the exclusion of duress and the judge’s response to jury questions, was dismissed on 31 July 2014. The appeal court said the causation and duress issues had been addressed by recent authority, and that although the response to the jury was somewhat inaccurate, it had not misled them in the context of the case.
In its section 29 ruling, the appeal court said the delayed-death causation issue should be considered by the final court of appeal. It also said the question of whether, and on what terms, duress may be a defence to murder should be resolved by the Supreme Court. The court certified those two questions as matters of exceptional public importance and said an appeal was desirable in the public interest.
The ruling did not determine the answers to either question or itself overturn Dunne’s murder conviction. It made no observation on the separate attempted murder conviction, noting that no issue about it had been raised in the trial, appeal or certification application.