Limerick gangland criminal Gary Campion has lost his Supreme Court appeal over his conviction for the murder of Brian Fitzgerald, a nightclub head of security shot because he refused to allow the Limerick-based McCarthy-Dundon gang sell drugs in the club where he worked.
The five-judge court unanimously dismissed the appeal by Campion (34), from Moyross, over the Court of Appeal’s rejection of his earlier appeal against his 2007 conviction for the murder of Mr Fitzgerald in Limerick, on November 29th, 2002.
Campion later received a second life sentence in 2009 for the murder of Frankie Ryan on September 17th, 2006.
The primary evidence against Campion, implicating him in the murder of Mr Fitzgerald, was given by James Martin Cahill, who was previously jailed for life for murder after admitting he was the person who actually shot Mr Fitzgerald.
Cahill made claims against a number of people including Campion whom, he alleged, had agreed to provide and drive a motorbike.
Giving the Supreme Court judgment, Ms Justice Iseult O'Malley said Campion, along with Desmond Dundon, John Dundon and Anthony Kelly, all stood trial for the murder of Mr Fitzgerald.
She said Cahill’s evidence did not go entirely as anticipated by the prosecution and that lead to a directed acquittal in relation to Desmond Dundon, while John Dundon and Anthony Kelly were both acquitted by the jury. Cahill’s evidence in relation to Campion did go largely as expected and he was convicted by unanimous jury verdict, she said.
Mental illness
The issues in Campion’s appeal arose from Campion’s contention Cahill’s reliability as a witness may have been impaired by reason of mental illness. An application by the various defendants for orders requiring Cahill to be psychiatrically examined before he gave evidence was not granted and they also failed to get a direction concerning his evidence when the prosecution case closed.
Campion’s claim in his appeal was, without the requested examination, the trial judge should not have permitted the trial to proceed and should have directed an acquittal on grounds Cahill’s evidence could not be relied upon.
She said there was no real disagreement the competency of a witness is for the trial judge to decide and that expert evidence is admissible on that issue. The threshold for competency is low, involving an ability to understand questions and give intelligible answers on matters relevant to the issues in the trial, she said.
A party is not entitled to simply put a witness’ competency at issue by formal challenging that and thereby be entitled to a full hearing on competency. Some foundation must be laid and there was nothing in this case to indicate any doubt whether Cahill could pass the threshold test.
Cahill had decided not to undergo any competency examination and the trial judge had no power to require him to do so. The trial was about the guilt or innocence of the accused, “not the mental health of Mr Cahill”. The real question was whether Cahill’s refusal to undergo a psychiatric examination created a real risk of an unfair trial, such that the judge should have stopped the trial at that point.
Limitations
Allowing for the limitations under which two medical experts provided reports on Cahill, in that they could not examine him and instead based their views on his prison medical records, neither doctor was prepared to say the medical records gave them cause for concern there was an undiagnosed illness, she said.
Cahill had certainly displayed symptoms, amongst other issues, of acute distress and anxiety over the six years covered by the medical records, she noted. However, neither doctor had diagnosed him as having a mental illness and his condition was never seen as warranting a transfer to the Central Mental Hospital.
His evidence and cross-examination was also before the jury. The medical reports would not have formed a basis for the trial judge to halt the trial over Cahill’s refusal to submit to psychiatric examination, she held. The trial judge also made clear the defence could have called the two doctors but that was not done.
Addressing arguments the COA judgment set too narrow a test for admissibility of psychiatric evidence, she said the trial judge was prepared to consider admitting appropriate expert evidence bearing upon the mental condition of Cahill, but no such evidence was offered. The parameters of the admissibility of such evidence should be left to a case where the issue “truly arises”, she stressed.
