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Court of Appeal overturns murder conviction citing landmark UK Supreme Court ruling

Gerard Burnett
Gerard Burnett

A man who acted with others in the stabbing of a 28-year-old, has had his conviction for murder overturned by the Court of Appeal in a decision which drew relevance from a landmark UK Supreme Court ruling on joint enterprise.

Andrew Gibney (aged 24) of Drumheath Avenue, Mulhuddart had pleaded not guilty at the Central Criminal Court to murdering Gerard Burnett (aged 28) at Castlecurragh Vale, Mulhuddart on August 21, 2012.

Mr Burnett suffered 30 stab wounds after he was attacked by a group of five men outside his girlfriend’s house and was pronounced dead in hospital a short time later.

Gibney was found guilty by a jury verdict of 10-2 and was given the mandatory life sentence by Mr Justice Patrick McCarthy on January 28, 2014.

In bringing an appeal against conviction, counsel for Gibney, Giollaíosa Ó Lideadha SC, said his client had always fully accepted his moral and legal guilt for his part in the events which lead to Mr Burnett's death.

However, Mr Ó Lideadha said “a miscarriage of justice occurred in this trial resulting in his conviction for murder”.

He said Gibney, in his drunken state, intended to cause harm to Mr Burnett but not serious harm. He admitted stabbing Mr Burnett three times but “others went further”.

There were five people in the beginning of the attack but three, including Gibney, had left before two inflicted fatal wounds a short time, Mr Ó Lideadha had said.

He referred to the recent UK Supreme Court decision known as 'Jogee' which found the British courts to have wrongly interpreted the law on joint enterprise for 30 years.

Mr Ó Lideadha said the UK Supreme Court found that the British courts had not recognised the moral guilt of someone who went along with others to commit a crime that is subsequently escalated by somebody else.

Mr Ó Lideadha relied on a part of the judgment in 'Jogee' in which it was held that if a person is party to a violent attack on another, without an intent to assist in the causing of death or really serious harm but the violence escalates and results in death, he will not be guilty of murder but guilty of manslaughter.

IN the Court of Appeal's judgment allowing Gibney's appeal today/yesterday(TUESDAY), Mr Justice Garrett Sheehan said Gibney was one of a number of youths who had been drinking in a house before they went to the home of Mr Burnett armed with knives.

Mr Burnett was dragged from his home, beaten and stabbed to death. He received 30 stab wounds, six of which were described as shallow.

A significant part of the prosecution case was an uncontested admission by Gibney that he had been involved in the attack. He had gone to Finglas Garda station with his father and said: “I was involved in the incident, the chap is dead now and I need to give him peace”.

He told gardaí he stabbed the deceased in the side three times.

Mr Justice Sheehan said the principal ground of appeal, as advanced by Mr Ó Lideadha, was that the trial judge failed to direct the jury on the partial defence to murder.

In other words, they should have been asked to consider whether Gibney had acted with intent to cause harm but fell short of intent to cause serious harm or to kill; Had caused harm and then withdrew but that the fatal wounds were inflicted by others later.

Alternatively, the jury could have considered whether or not Gibney had participated in a joint enterprise to kill or cause serious injury, Mr Ó Lideadha submitted.

Mr Justice Sheehan said Mr Ó Lideadha relied on the evidence of a prosecution witness to the effect that there was a gap of up to ten seconds between those who fled the scene first, including Gibney, and the last two attackers.

Mr Ó Lideadha maintained it was open to the jury to hold that in this period of time the violence had escalated resulting in the fatal stab wounds then being inflicted when Gibney was not present.

“While we fully appreciate how unattractive this defence may have seemed to the trial judge,” Mr Justice Sheehan said, it seemed that it was “stateable” and a matter for the jury to decide.

“The trial judge was in error in refusing to put this defence to the jury,” the Court of Appeal found.

Mr Justice Sheehan, who sat with Mr Justice George Birmingham and Mr Justice John Edwards, allowed the appeal and directed a retrial.

Gibney was remanded in custody for two weeks.