Counsel for Dermot Laide, the only man jailed for the killing of student Mr Brian Murphy outside Club Anabel at Dublin's Burlington Hotel in August 2000, has argued that some of the statements of his co-accused were highly prejudicial to him and went well beyond the prosecution's case against him.
Presenting Laide's appeal yesterday against his conviction and four-year sentence for manslaughter, Mr Michael O'Higgins SC, for Laide, said the outcome of a process by the trial judge to edit the statements of Laide's co-accused at their trial and certain media coverage prior to and during the trial were among the grounds of appeal.
The three-judge Court of Criminal Appeal is hearing appeals by Laide (23), from Castleblayney, Co Monaghan, and Desmond Ryan (24), Cunningham Road, Dalkey, Dublin. The appeals are being opposed by the DPP.
In addition to a four-year sentence for manslaughter, Laide received a concurrent two-year term for violent disorder. Ryan was given nine months for violent disorder but the sentence was deferred to allow him complete his final university exams and he was later granted bail.
Sean Mackey (23), of South Park, Foxrock, Dublin, was jailed for two years at the time after he was also convicted of violent disorder. His appeal has been rejected by the court. Andrew Frame (22), of Nutley Lane, Donnybrook, Dublin, was acquitted of violent disorder, and the trial judge had earlier directed that the jury find him not guilty of manslaughter because of insufficient evidence.
In the Laide appeal, which is being dealt with first, it is submitted that the trial judge failed to ensure that Laide received a fair trial having regard to the outcome of the process to edit co-accused statements relating to the incident outside the club.
It is also claimed, among several grounds of appeal, that the jury's verdict against Laide is unsafe in the light of prejudicial media coverage prior to and during the trial, and prejudicial coverage in two newspapers of submissions made in the absence of the jury.
Mr O'Higgins said his client had sought a separate trial but had been refused. He submitted it was wrong of the trial judge to say that because something stemmed from a single incident it followed that the matter must be tried together.
That was not the criteria for a separate trial, counsel argued. The criteria was whether a joint trial on the same indictment would embarrass one accused or another. In this case, there was the embarrassment of having an accuser say "you kicked a man on the ground" in circumstances where you were never going to be able to confront that view and it was going to go before a jury and you were never going to be able to challenge it. Earlier, Mr O'Higgins said his substantive submission would relate to the editing of the co-accused statements by the trial judge but he would also submit that the verdict was perverse and that these issues were "first cousins".
Relating to the application to edit the statements of the co-accused, it is submitted that, for example, a statement of Mackey alleged that Laide threw punches at the deceased, hitting him in the head, while the deceased was falling back; that the deceased fell to the ground after blows from Laide and that Laide then kicked the deceased while he was on the ground. A statement of Ryan alleged that Laide was "one of the guys who was 'kicking' the deceased".
These accounts, it was argued, were at variance with the prosecution's case against Laide.
He had contended that he only entered the fight in defence of Frame and that his participation was confined to punching and kicking out at the deceased while both were upright and that he had already withdrawn by the time the deceased was felled and kicked on the ground by other persons.
The offending portions of the co-accused's statements incriminating Laide should have been excised and the fact that they were not rendered the jury's verdict infirm.
An application on behalf of Laide for the statements to be edited was partly successful but the trial judge erred in leaving unedited significant portions of the co-accused's statements incriminating Laide, it was submitted.
The trial judge had opted for a "Mr A" formula in which "Dermot Laide" was replaced by the phrase "Mr A" in a statement of Mackey, in order to protect Laide's rights.
Counsel for the co-defendants had applied for leave to ask witnesses whether their client was the "Mr A" referred to and the trial judge acceded to that.
The implication of the conduct of the hearing was that the jury were informed that "Mr A" referred to Laide, counsel said. The result was in direct contradiction of the editing process ordered by the trial judge and rendered it pointless.
The task facing the jury was particularly difficult, the court was told. They had to consider events of 3½ years previously, and heard evidence from a very large number of witnesses about an incident which lasted seconds, involving a considerable number of young people, many of whom were drunk.
The evidence had been confusing and contradictory, disordered and uncertain, occasionally vague and often unclear.
Because the jury's task was so difficult, it was likely they found tempting the temptation to rely on a co-accused's statement as evidence against Laide, if only to put some order on the confusing mass of material presented to them, Mr O'Higgins argued.
The hearing continues today.