Limerick cousins move to appeal conviction for double murder

Court: The victims, Desmond Kelly and Breda Waters, were both shot dead
Court: The victims, Desmond Kelly and Breda Waters, were both shot dead

Two cousins have moved to appeal their convictions for a double murder in Limerick four years ago.

Patrick O'Brien (35), of Glanntan, Golf Links Road in Castletroy and Thomas Stewart (31), of The Cedar, Briarfield, Castletroy, had pleaded not guilty to the double murder of Desmond Kelly and Breda Waters at O'Malley Park, Limerick City on January 9 2011.

Both men were found guilty by a jury at the Central Criminal Court and each given the mandatory life sentence by Mr Justice George Birmingham on October 26, 2012.

It was the prosecution's case that the cousins entered the house at 8.48am while Des Kelly's sister was asleep upstairs with his five-month-old child. Des Kelly, who was in the kitchen at the time, was shot in the right side of his head at close range with a 12 gauge single-barrel sawn-off shotgun.

The men then made their way upstairs where Breda Waters was shot in the neck from a doorway. O'Brien and Stewart left the house without discovering that Kelly's sister was also upstairs with the baby and had heard one of the men speak to Ms Waters, the prosecution had contended.

Movning appeals against conviction in the Court of Appeal today, counsel for O'Brien, Seán Gillane SC, submitted that the purported identification of his clients voice should not have been inadmissible.

At a minimum, safeguards should have been put in place, Mr Gillane said, in circumstances where the woman had recently taken heroin, had just woken up and where a small number of words were used.

Mr Gillane said a sample of voices could have been played to see if her ability to identify voices was capable of being borne out. He said he hadn't sought some sort of voice parade but a simple procedure.

Counsel further submitted that a statement by Thomas Stewart Jnr, who told gardaí he had seen a shotgun in a car while driving with Mr O'Brien shortly before the shooting took place, should not have been admissible.

Mr Stewart Jnr subsequetly denied having seen a shotgun in the car but his initial statement was brought into the case by way of an application under section 16 of the Criminal Justice Act 2006.

Mr Gillane said Mr Stewart Jnr's statement was taken off camera and was read back to him on camera contrary to the correct reading of the statute, Mr Gillane submitted.

Counsel for Stewart, Hugh Hartnett SC, submitted that the trial judge erred in allowing a garda to state in evidence that two persons were visible on CCTV footage when only one person was visible.

In short, the garda was allowed to give an opinion when he was not an expert, Mr Hartnett submitted.

An essential part of the prosecution's case to prove that two people had left the Shebeen drinking house, made their way through O'Malley park and went into the house where the shootings took place.

The garda gave evidence that he could see one person, a spec of white, a shadow and 'in my view (that's) a second person'.

Where there is no visible movement by a person, interpretation is a matter of expertise and cannot be given by someone who is not an expert, Mr Hartnett said.

Counsel for the Director of Public Proseuctions, Brendan Grehan SC, said the garda acted as a guide for the showing of CCTV footage.

It was pure observation, Mr Grehan said and even if it was opinion it wasn't of a class that would be automatically excluded in a criminal trial.

All the garda was doing. Mr Grehan said, was pointing out features which were not ordinarily clear to a jury. He was acting as a guide in terms of what items to focus on otherwise the jury would have had to watch hundreds of hours of CCTV footage which they “simply would be unable to cope with”.

On the voice recognition evidence, Mr Grehan said, said the person whose voice was identified was well known to the witness.

Where a person knows a voice there was a much better likelihood that their identification would be correct, he said.

Ruaidhrí Giblin

Mr Grehan said the defence was run not on whether the witness had correctly identified the accused but whether she was telling the truth at all.

President of the Court of Appeal Mr Justice Seán Ryan, who sat with Mr Justice Garrett Sheehan and Mr Justice John Edwards, said the court would reserve judgment to a date “as soon as possible”.