One man accused of pub murder to be acquitted

One of four men charged with murdering a father-of-three in Dublin two years ago will be acquitted by the jury on the direction of the trial judge.

Mr Justice Barry White withdrew the case against 27-year-old Damien Johnston on day 30 of his trial at the Central Criminal Court.

Mr Johnston of Cashel Avenue, Crumlin, along with three others, had pleaded not guilty to murdering 33-year-old John Carroll, who was shot dead while socialising in Grumpy Jack’s Pub in the Coombe on February 18, 2009.

Chief prosecution witness Joseph O’Brien (aged 26), who admits being involved in the murder, testified that Mr Johnston had driven the gunman to and from the shooting. He said he had seen Mr Johnston, his long-time friend, get onto the motorbike on which co-accused Peter Kenny was a passenger.

Mr Kenny (aged 29) of McCarthy’s Terrace, Rialto; Christopher Zambra (aged 35) of Galtymore Road, Drimnagh along with father-of-two Bernard Hempenstall (aged 28) from Park Terrace, The Coombe have all denied murder.

The jury returned to the courtroom this morning after an absence of two days and were addressed by Mr Justice Barry White.

“You may have observed that there are three accused currently before you, not the fourth,” he said.

“The defence have a right at the conclusion of the prosecution case to make applications about the future conduct of the trial,” he explained.

“In regard to Damien Johnston, an application was made by his counsel, Mr (Michael) O’Higgins, that I should withdraw his case from you and direct a verdict of not guilty on the basis of the purported identification of Damien Johnston by Joseph O’Brien,” he continued.

He said the law recognised inherent dangers in relying on visual identification, even where conditions were good.

“Mr O’Higgins said that Joseph O’Brien was identifying his client on the basis of a glimpse of the back of his head and that this was the only evidence against him,” he explained.

The judge informed the jury that the prosecution said there was other evidence, but that it was tenuous and collateral and dependent on the identification.

“So I’ve withdrawn his case from before you,” he concluded.

The case continued against the three remaining defendants with Patrick Gageby SC, prosecuting, making his closing speech.

Mr Gageby said that is was a case in which the jury would be asked to draw inferences.

“In an ideal world, someone like Joseph O’Brien would not be called,” he said. “Joseph O’Brien has a criminal past.”

He pointed out that O‘Brien, who had been granted immunity and given a new life in exchange for testifying, had spent 10 days in the witness box.

“You saw every known bit of his criminal past,” he said.

He said that there had been no attempt to whitewash his ‘lamentable history’.

He said that it would be understandable if the jury had a considerable dislike of O’Brien and considered it unfair that he had been given immunity from prosecution.

“But that cannot affect your decision,” he said.

He also acknowledged that two senior gardaí had done some unwise things and that proper records had not been kept.

He said that even if the jury decided that O’Brien was the motorbike driver, as Damien Johnston’s counsel had suggested, this did not acquit Mr Kenny, Mr Zambra or Mr Hempenstall.

“Mr Zambra was the planner, encourager and man with the money,” he said.

“Mr Hempenstall was meant to do the killing but got tied up because Mr Carroll wanted to go for a drink with him,” he said, describing Mr Hempenstall as a facilitator.

He said it was not clear what motive O’Brien would have to implicate his friend, Mr Hempenstall, or Mr Zambra, who maintained he had met O’Brien only briefly.

He said the real evidence in the case was the CCTV footage, which he said showed the ‘incredibly rapid assassination’, in which several bullets were discharged from a semi-automatic gun within five or six seconds.

A member of the victim’s family left the courtroom in tears during this description.

Mr Gageby pointed to the footage that showed O’Brien with Mr Zambra at various locations in the city centre later that night.

He pointed to the uncontested evidence that a taxi was called to Joseph O’Brien’s sister’s house from Peter Kenny’s phone nine minutes after the murder. This is where the motorbike was later found.

He pointed to other mobile phone records, which showed a large amount of contact between O’Brien, Mr Hempenstall and Mr Kenny and a phone the State attributed to Mr Zambra before the murder.

He pointed out that there was no contact between these phones from when Mr Carroll entered the pub until after the killing. He pointed out that all these phones were ‘decommissioned’ in the hours after the murder.

“There’s a strong and cogent case against these men, backed up by the phone records,” he concluded.

The closing speeches continue tomorrow before the jury of eight men and four women.