The Court of Appeal has allowed Andrew Gibney’s appeal against his murder conviction, ruling that a manslaughter defence was open on the evidence and should have been put to the jury. The court directed a retrial. It did not consider the other grounds of appeal.
Gibney was convicted by a 10–2 majority on 28 January 2014 of murdering Gerard Burnett at Castlecurragh Vale, Mulhuddart, on 21 August 2012. He was sentenced to life imprisonment.
The appeal focused chiefly on whether the jury should have been asked to consider two possible accounts of Gibney’s role in the attack. The defence argued that he may have joined an unlawful and dangerous assault intending to cause harm short of death or serious injury, then withdrawn before other attackers inflicted the fatal wounds. The alternative was that he had joined a common plan to kill or cause serious injury.
The prosecution maintained that there was no reasonable basis for a manslaughter verdict. It relied on evidence that the group went to Burnett’s home armed with knives, that Gibney admitted stabbing him three times, and that Burnett suffered 30 stab wounds. But the prosecution also accepted it could not identify who inflicted the fatal wounds or say that Gibney’s admissions alone established an intent to cause serious harm.
A statement by Lee Dalton, admitted at trial under section 16 of the Criminal Justice Act 2006, described talk of going to Burnett’s home and attributed a threat to Gibney before the group left. Dalton later said he was too drunk to remember events and that gardaí had pressured him into making the statement. The trial judge had warned the jury to take special care in deciding what weight, if any, to give it.
The appeal court said that if the jury rejected Dalton’s statement, the direct evidence of a prior discussion indicating the intent required for murder would no longer be before it. The court also noted the defence submission that two attackers remained at the scene after others fled and may have inflicted the fatal wounds during that interval.
Applying the joint-enterprise principles discussed in R. v. Jogee, the court concluded that the defence was stateable and should have been left for the jury to decide. It held that the trial judge erred in refusing to put that defence, which had been raised during the trial proceedings. The appeal was allowed on that ground alone; the court said it was therefore unnecessary to determine the remaining grounds. It ordered a retrial.