Possible retrial for man who successfully appealed murder conviction after man he assaulted died later in refuse chute

David O’Loughlin (30), with an address at Garden City Apartments, North Main Street, Cork, had pleaded not guilty to the murder of Liam Manley (59) at his apartment complex in the city on May 12, 2013.

A Central Criminal Court jury sitting in Cork unanimously found O'Loughlin guilty of murder and he was accordingly given the mandatory life sentence by Mr Justice Paul Carney on March 31, 2015.

The Court of Appeal heard that after some considerable time deliberating, the foreman of the jury asked for permission to visit the chute before making a final decision. It is not common for a jury to visit a location, but it is by no means unheard of. It was not known to have happened during jury deliberations before, which is what happened in this case.

Quashing the verdict two weeks ago, Mr Justice Alan Mahon said the decision to permit the jury's visit to the chute in the absence of an application from either the defence or the prosecution was technically unlawful and in conflict with section 22 of the Juries Act.

While examining the scene, at least one juror conducted a form of experiment by throwing a stone down the chute - apparently done with the knowledge of the trial judge but in the absence of either the prosecution or defence.

Mr Justice Mahon said it was unclear what information the jury expected to learn from the experiment but the throwing of the stone put the visit to the chute on an “entirely different level”.

Counsel for O'Loughlin, Michael O'Higgins SC, said there was simply no way of knowing if one juror had a concern, which wasn't a real concern, or whether somebody was getting into the physics of it which in effect introduced new evidence into the case. He said the reason and result of the experiment was unknown and unexplained.

Mr Justice Mahon, who sat with Mr Justice George Birmingham and Mr Justice John Hedigan, said the jury ought to have been discharged in the particular circumstances in which these events occurred.

Counsel for the Director of Public Prosecutions, Seán Gillane SC, told the Court of Appeal today that the matter could be remanded back to the Central Criminal Court for a retrial – on consent.

O'Loughin was remanded to appear before the Central Criminal Court on Monday next.

Giving background, Mr Justice Mahon said O'Loughlin found the deceased sitting on the pavement outside a shop in Cork City where he lived. He felt sorry for the deceased because he himself had previously fallen on hard times, and took him back to his apartment.

Shortly afterwards a friend of O'Loughlin called to his apartment. Both he and the deceased had previously stayed with the Simon Community in Cork.

Something triggered O'Loughlin who then assaulted the deceased. He ejected him from his apartment and forcibly pushed him into a rubbish chute which was used to take bags of rubbish from various apartments floors down to the basement area.

O'Loughlin maintained that he did not in any way intend to harm the deceased and he assumed he would simply have slid safely down into the basement area and then leave the building.

However, there was a slight bend in the chute which caused refuse bags to occasionally jam and block the chute.

The following morning, a maintenance man attempted to unblock the chute and as he did so, the deceased's body released itself and dropped down.

Dr Margot Bolster, the Assistant State Pathologist, gave evidence that the cause of death was mechanical asphyxia, associated positional asphyxia and hypoxia or lack of oxygen due to being trapped inside the chute.

Mr Manley had been homeless for some period of time and had lived in homeless accomodation in the city. He had a problem with alcohol and on the night in question, had been turned away from a hostel facility because he was intoxicated, and told to return later when he sobered up.

O'Loughlin gave evidence and emphasised that he never wished to harm or kill Mr Manley and that he was devastated as a consequence of what occurred. He said he honestly believed the deceased would simply slide down and exit into a bin of rubbish below which would break his fall, and that he would not have been injured, let alone die.

During the trial, the jury had seen photographs of the chute and had heard expert evidence as to the speed at which Mr Manley would have travelled through and exited the chute had his passage not become blocked by rubbish bags.

After some considerable time deliberating, and after they were given the option of returning a majority verdict, the foreman of the jury asked for an opportunity to visit the chute before making a final decision.

While the jury were examining the scene, at least one member of the jury was permitted to throw a stone down the chute. This was done in the absence of O'Loughlin or his legal representatives.

By the time O'Loughlin and his lawyers arrived to the apartment building, they found the trial judge getting into a lift to exit the building. O'Loughlin had been represented by the late Brendan Nix SC for his trial.

No one was present on behalf of the prosecution, they having apparently visited the scene earlier.

Mr O'Higgins said the whole process took place in the absence of both parties. “It ought not to have happened to begin with”, ought not to have happened in the absence of both parties and the “experiment” with the stone ought not to have happened, counsel submitted.

Was it to satisfy some off-beat question a single juror had or had the jury formed a view of something that might have involved force or speed or physics, counsel asked.

There was simply no way of knowing if it was one juror with a concern, which wasn't a real concern, or whether somebody was getting into the physics of it which in effect introduced new evidence into the case, counsel submitted.