New evidence could have convicted Laide
Evidence excluded in the original trial could have been presented in a new trial of Dermot Laide for the manslaughter of Brian Murphy. Marie Cassidy's evidence would not necessarily have scuttled the case. By Vincent Browne
Evidence that Dermot Laide had kicked Brian Murphy, while the latter lay on the ground outside Annabel's nightclub on 31 August 2000, could have adduced in a new trial of Dermot Laide – evidence that had been excluded in the original trial.
And although the evidence of the chief state pathologist, Marie Cassidy, that the injuries inflicted in Brian Murphy that night, were not sufficient in themselves to cause death or even serious injury, there was still sufficient evidence for a case to go to a jury on a manslaughter charge.
A complication would have been the post-mortem report of the former chief state pathologist, John Harbison. He is suffering from a condition akin to Alzheimer's and a challenge would have been made to his post-mortem report of 2000 on the grounds that there was evidence his capacity had begun to deteriorate as far back as then. John Harbison's condition may give rise to challenges to his evidence in other cases.
Dermot Laide was the only person to have been convicted of homicide (manslaughter) following the death of Brian Murphy, after he was assaulted and kicked on the head while on the ground outside the nightclub around 3.00am on 31 August 2000.
However his conviction was set aside by the Court of Criminal Appeal in February 2005 on the grounds that the jury in the original trial may have been able to infer evidence that was deemed inadmissible.
And it is that evidence, deemed in admissible at the original trial, which could have been presented in a new trial which might have secured Dermot Laide's conviction now on a manslaughter charge.
In a statement to Gardai, one of the co-accused, Sean Mackey, said:
"I hit him (Brian Murphy) in the head knocking him backwards. I didn't see him fall to the ground from that blow because at that state Dermot Laide joined in the fight and I remember Dermot Laide throwing punches at him and hitting Murphy in the head, while Murphy was calling back. Des Ryan also joined in but I can't remember him hitting Murphy.. .Murphy fell to the ground after the blows from Dermot Laide. Dermot Laide then kicked Murphy while he was on the ground, then I gave him one kick while he was on the ground and I am satisfied that it wasn't to his head. I stood off after that. I can't remember seeing Murphy getting anymore kicks but a general melee broke out at this state and I remember Des Ryan, Dermot Laide and Andrew Frame being involved in the melee".
In another statement Sean Mackey said:
"I punched him with my closed fist in the head area knocking him backwards. I didn't see him fall to the ground from that blow because at that stage Dermot Laide joined in the flight. I remember Dermot Laide throwing punches at him, hitting Murphy on the head. He hit Murphy a number or times in the head while Murphy was falling back towards the ground. I would say that I saw Dermot Laide hit Brian Murphy about the head with four or five punches. They were hard punches, he is a bid adult and he was giving it all… Brian Murphy fell to the ground after the blows from Dermot Laide. It looked to me that Dermot Laide was holding Brian Murphy with his left hand and punching him with his right hand before Brian Murphy collapsed to the ground. Dermot Laide punched Brian Murphy a number of times while Brian Murphy was collapsing and falling back on to the ground and while Brian Murphy was on the ground. Dermot Laide then kicked Murphy while he was on the ground. I am not sure exactly where he kicked him".
In the original trial these references to Dermot Laide kicking Brian Murphy on the ground were deemed inadmissible for technical legal reasons. Neither was the prosecution at liberty to call Sean Mackey as a witness in the case because he was a defendant and he choose not to give evidence.
But in a new trial these restrictions would not have applied. Sean Mackey could have been required to give evidence under oath and if his evidence differed from what he said in his statements to the Gardaí, these differences could have been put to him and he would have been required to explain why he was changing his evidence.
It is possible that on the basis of the evidence that Dermot Laide had punched Brian Murphy in the way that was described and that he had kicked Brian Murphy while he was on the ground and may have kicked him in the head, while he was on the ground, that he, Dermot Laid, intended to cause Brian Murphy serious injury (it is not necessary to proive an intention to cause death in a charge of murder of manslaughter, it is sufficient to prove there was an intent to cause serious injury). If that was so, then the issue in the trial would have swung around the issue of causation: what caused the death of Brian Murphy and in this regard it is evident that the evidence of Marie Cassidy would have been central. She stated in her report:
"This young man died after an assault. The injuries he received were relatively minor and could not be expected to cause his death. It is most likely that his head injury was complicated by alcohol-induced aponea (stopping of breathing)and acute brain swelling resulting in hypoxia/schaemic brain injury and death".
The issue would have been whether Brian Murphy would have died had he not been assaulted and if it was established that had he not been assaulted he would not have died, then the case would have turned on the legal issue of causation.
In some previous cases it was stated the law was whether the act of the accused contributed "significantly" to the death. In other cases the test was whether the act of the accused contributed "substantially" to the subsequent death.
In a Canadian case (Smithers) the accused had kicked the victim in the stomach. The victim died and the medical evidence was that the case of death was asphyxiation resulting for the aspirating of his own vomit. In that case the judge held: "There was cogent evidence to which the jury could apply common sense in considering the issue of causality".
In another Canadian case (Shanks) the accused had assaulted the victim having been told the victim had recently suffered from a stroke (the row originated when one of their cats had injured the other's cat). In the case a cardiologist said there was a probability of 80 or 90 per cent that the man would have died anyway even if the physical assault had not taken place. The court of appeal held that the trial judge was entitled to find the assault was the proximate cause of death and that deciding on the causation of death was a mater for the jury.
It is not possible to say how the Irish courts would have decided this issue but certainly the matter was a open for argument: whether the assault on Brian Murphy was a substantial cause of his death or a proximate cause of his death, given the evidence of Marie Cassidy.
The Brian Murphy Trial
Dermot Laide of Castleblaney, Co Monaghan, was convicted on 25 February 2004 with the manslaughter of Brian Murphy on 31 August 2000. He was also convicted of violent assault. Sean Mackey of Foxrock, Dublin was also convicted of violent assault, as was Desmond Ryan of Dalkey, Co Dublin. A forth accused, Andrew Frame of Donnybrook, Dublin was acquitted no all charges.
Dermot Laide was sentenced to four years imprisonment. Sean Mackey was sentenced to two years imprisonment and Desmond Ryan to nine months imprisonment.
On 24 February 2005 Dermot Laide had his manslaughter conviction overturned and a new trial was ordered.
That trial was due to commence on Monday 25 April.
It was known for some time that the former chief state pathologist, John Harbison, would be unable to give evidence. But it was only on Friday 22 April that the expert opinion of the current chief state pathologist, Marie Cassidy, was sought and obtained.