Wayne Dundon fails in bid to have judges recuse themselves ahead of court appeal

Mr Collins, a 35-year-old father of two, who was engaged to be married, was shot in the chest on the date in question.

The three-judge Special Criminal Court found Wayne Dundon had ordered the murder from prison and that Killeen was the getaway driver for the gunman, James Dillon.

Mr Collins’ father, Steve Collins, was believed to have been the intended target of the murder, due to his involvement in a previous successful prosecution against Dundon for a threat to kill.

Following a 29-day trial, Wayne Dundon and Killeen were found guilty of the murder. Ms Justice Iseult O'Malley, presiding, spent almost two hours outlining the three-judge court's reasons before delivering its verdict.

Accordingly, Wayne Dundon and Killeen were given mandatory life sentences on July 15, 2014.

Both men are due to open appeals against their convictions for murder on Monday.

But in an application before the Court of Appeal today, Wayne Dundon's lawyers sought a differently constituted court – made up of different judges – to hear his appeal.

Lawyers for Nathan Killeen supported the application.

Dismissing the application as being without merit or validity today, Mr Justice George Birmingham said no reasonably informed or objective person could conclude that members of the Court of Appeal would not be in a position to bring an open and judicial mind to the matter.

It was necessary to note, Mr Justice Birmingham said, that Wayne Dundon had been convicted alongside his brother John Dundon of making threats against members of the Collins' family – not the family of the deceased, but members of a family with which the Dundons have had associations in the past.

Members of this family included Alice Collins and April Collins who gave evidence against the Dundons in separate trials.

The Dundon brothers appealed their convictions for making threats against the Collins family and a division of the Court of Appeal comprising Mr Justice Birmingham, Mr Justice Alan Mahon and Mr Justice John Edwards dismissed the appeal.

In an affidavit grounding an application for the court to recuse itself ahead of his appeal on Monday, Wayne Dundon says there is an overlap of factual matters in the threats to kill and murder case and both trials involved members of the Collins family.

Of considerable relevance to Wayne Dundon's argument, it was claimed, was that certain observations were made of April Collins in circumstances where she wasn't relied upon in the second Special Criminal Court trial.

One fact a reasonably informed and objective person would have regard to, Mr Justice Birmingham said, was the very different roles of an appeal court and a court of first instance.

He said an appeal court ruled on legal issues raised in an appeal and was not involved in forming views on whether witnesses were credible, incredible, impressive or otherwise.

That difference was further distinguished by the role of the Special Criminal Court in which members of that court were not just judges of law but judges of fact.

Undoubtedly, he said, if there were reasons to believe impartiality could not be brought to bear then members of the court should recuse themselves.

But at the same time, a court should not recuse itself if there was in fact no objective bases for concern.

Doing so would “invite forum shopping”, he said, adding that members of the Court of Appeal had a positive duty to hear cases to which they were assigned.

Mr Justice Birmingham, who sat with Mr Justice Alan Mahon and Mr Justice John Edwards, said the court would refuse the application and was ready to take up the appeal scheduled for Monday.

Neither Wayne Dundon nor Nathan Killeen were in court for the application.