The Court of Appeal has asked for evidence that a convicted murderer, who threw a vulnerable homeless man down a 40ft rubbish chute, intended to kill or cause serious injury to his victim.
Ms Justice Isobel Kennedy said the three-judge court wants the prosecution and defence to make written submissions on whether there was evidence that David O'Loughlin had the requisite intent required to prove murder when he pushed Liam Manley down the chute.
Section 4 of the Criminal Justice Act 1964 states that an unlawful killing shall not be murder "unless the accused person intended to kill, or cause serious injury."
O'Loughlin (33), of Garden City Apartments, North Main Street, Cork was convicted of murdering Mr Manley on May 12, 2013 following a retrial at the Central Criminal Court in January 2019. He was tried twice because his first conviction was overturned by the Court of Appeal after they heard that the jury had visited the scene of the murder and had possibly carried out their own experiment by throwing a stone down the chute.
The trial heard that Mr Manley was a vulnerable man with an alcohol dependency who had been living at a Simon Community shelter in Cork. O'Loughlin invited Mr Manley to his apartment, but an argument erupted that resulted in Mr Manley's death.
Last September, Mr O'Loughlin again appealed his conviction on various grounds and this Thursday the Court of Appeal asked for further information. Ms Justice Kennedy pointed out that there was an application at the end of the trial to have the murder charge withdrawn from the jury on the basis that there was no evidence of intent. She said the court wants to hear more from both sides on that issue.
Michael O'Higgins SC, for O'Loughlin, said he would file a short additional submission within seven days.
At the appeal hearing in September, Mr O’Higgins said his client’s intention in placing Mr Manley in the rubbish chute was that there would be a “soft landing” in a bin which would be cushioned by rubbish bags.
However, Mr O’Higgins acknowledged that such an intention could not have been achieved at the time of the incident as the chute had been blocked with rubbish bags and had become “a death trap”, which was compounded by Mr Manley’s shoulders being wider than the chute.
Counsel said the bags in the chute represented a break in the chain of causation. While he accepted that O’Loughlin’s actions were indefensible and morally reprehensible, Mr O’Higgins said he had placed his victim in the chute in the belief Mr Manley would come out the other end without being seriously injured.
It was not an act “expressly designed to inflict an injury but did contain some element of humiliation,” Mr O’Higgins observed.
Counsel argued the correct decision in O’Loughlin’s retrial would have been a conviction for manslaughter.
Mr O’Higgins told the Court of Appeal that the trial judge, Ms Justice Tara Burns, had erred in law by failing to properly charge the jury regarding the evidence of the main prosecution witness, David O’Mahony, who had given conflicting accounts of claims to seeing O’Loughlin assault Mr Manley and dragging him out of the appellant’s apartment.
Mr O’Higgins said Ms Justice Burns was also wrong to have allowed statements made by O’Loughlin to gardaí on the day after Mr Manley’s death as evidence.
He claimed the failure to give O’Loughlin the opportunity to sign notes of his statements to gardaí made them involuntary and inadmissible.
Opposing the appeal, Patrick McGrath SC, for the DPP, said the throwing of Mr Manley into a 40ft chute by the appellant contributed to his death “in more than a minimal way”. Mr McGrath said no act by any third party could relieve O’Loughlin of his criminal responsibility for Mr Manley’s death.
Counsel said the trial judge had also acted correctly in allowing statements by O’Loughlin to gardaí into evidence and in properly charging the jury about the alleged unreliability of Mr O’Mahony’s evidence.
Mr McGrath said O’Loughlin was clearly aware of the problem of rubbish being trapped in the chute as warning signs had also been posted about it.
He claimed the appellant would have known there was a possibility that the deceased would become trapped after being thrown down the chute.
The Court of Appeal with Mr Justice John Edwards, presiding, with Ms Justice Isobel Kennedy and Mr Justice Patrick McCarthy reserved judgement in the case.
In February 2018, the Court of Appeal ordered a retrial after O’Loughlin successfully appealed his original conviction in March 2015.
On that occasion, the court quashed the mandatory life sentence handed down to O’Loughlin on the basis that the jury should have been discharged after it had been given permission to visit the chute, where one juror had thrown a stone down it.
The Court of Appeal ruled O’Loughlin should face a retrial as the decision to allow the jury to inspect the chute was technically unlawful in the absence of an application from either the prosecution or defence in the case.