Dublin man moves to appeal murder conviction

Mr Burnett suffered 30 stab wounds after he was attacked by a group of 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.

Opening an appeal against conviction today, 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.

“Others went further”.

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

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 said.

Undoubtedly, persons who join together in a joint enterprise are liable for the consequences of all actions tacitly agreed upon, Mr Ó Lideadha said.

But if the intention of another person in a joint enterprise was different to the intention of the accused there was no statutory presumption of transferring intent.

There's no law which says you are to be presumed to intend the consequences which others in a joint enterprise adopt, he submitted.

There was an evidential basis on which the jury could have concluded that Gibney intended to harm Mr Burnett but not cause him serious harm or to kill, Mr Ó Lideadha submitted.

But his partial defence was not allowed to be considered by the jury.

Instead, the trial judge gave the jury an option between outright acquittal or manslaughter on a basis which would have required the jury to find Gibney hadn't acted in concert at all.

It was a “practically impossible formulation,” Mr Ó Lideadha said.

Referring to a witness statement which was admitted into evidence under section 16 of the Criminal Justice Act 2006 – a procedure adopted when witnesses resile from their statements – Mr Ó Lideadha said it was open to the jury to reject that statement and the “slant” put on it by the prosecution.

The witness, Lee Dalton, had stated that Gibney told him on the night in question that he was 'going to kill' Mr Burnett.

Mr Ó Lideadha said the witness did not literally mean kill but 'beat up' and the statement was taken in circumstances where the gardaí were putting to the witness that he was an accomplice in the killing.

Counsel for the Director of Public Prosecutions, Seamus Clarke BL, said Mr O'Lideadha's “possible factual summary” hinged on the witnesses' interpretation of the words 'I'm going to hill him' and an attempt to transport that interpretation to Gibney.

Gibney had told gardaí during interview that he 'didn't know what the intention was' but 'I didn't intend to murder,' Mr Clarke said quoting memos of interview.

When asked by gardaí when he decided to "do this", Gibney replied: "The stabbing? Half an hour before hand,", Mr Clarke quoted.

On Gibney's own evidence, Mr Clarke said, he admitted to forming an intention to stab and it was for the jury to decide whether the facts stacked up.

In an attack where 30 stab wounds were caused, “are we out of manslaughter and into common design for murder,” Mr Clarke asked the court.

The appeal hearing before Mr Justice George Birmingham, Mr Justice Garrett Sheeehan and Mr Justice John Edwards, was adjourned to a later date.