Court of Appeal dismisses murder appeal, upholding conviction based on joint enterprise and admissible evidence.

THE COURT OF APPEAL

Birmingham J.

Mahon J.

Hedigan J.

[No. 97 of 2016]

The People (at the suit of the Director of Public Prosecutions)

Respondent

And

Gary Flynn

Appellant

th

JUDGMENT of the Court delivered on the 20 day of February, 2018 by

Mr. Justice Birmingham

1. On 16th March, 2016, the appellant was convicted of the offence of murder following a lengthy trial. The prosecution

case against Mr. Flynn was that he was party to the murder of Shay O’Byrne on 13th March, 2009 at his home at 3 Tymon

North Park, Tallaght. The prosecution case was one based on joint enterprise. By the time that Mr. Gary Flynn went on

trial, two other men, Garrett O’Brien and Eugene Cullen had been convicted of the murder in separate trials. The

prosecution case was that Garrett O’Brien shot the victim dead with a revolver and that Eugene Cullen, as well as the

appellant and others had assisted in the preparation, execution and aftermath of the murder. It was not disputed at the

instant trial that there was sufficient proof to establish that Eugene Cullen and Garrett O’Brien had participated in the

murder, Mr. O’Brien being the gunman.

2. In broad terms, the case mounted by the prosecution against Mr. Flynn was one based on circumstantial evidence and, as

is usual in such cases, the prosecution contended that the various pieces of evidence linking the appellant to the murder were

more than mere coincidences and as such were highly significant. In general terms, the case presented on behalf of the

defence was that the various elements of the prosecution case were not the result of coincidence but instead could be

explained by the association of the appellant with Mr. Eugene Cullen, and thereby stripped the circumstantial evidence of the

significance that it might otherwise have. There was evidence that put the appellant with Eugene Cullen before the murder,

evidence that he had been communicating with him by phone since the very early hours of the morning of the murder and

evidence that the appellant was in the company of Mr. Cullen and others in the aftermath of the murder.

3. There are, in essence, two strands to this appeal. First of all, it is said that the judge erred in admitting various pieces of

evidence, the admissibility of which had been challenged. It must be said that the admissibility challenges were numerous

and various, which goes a long way to explaining why the trial took 34 days. Secondly, a number of criticisms are made of

the trial judge’s charge. The Court will deal with this aspect first.

The Judge’s Charge

4. The criticisms of the trial judge’s charge might be summarised as follows. He is criticised for failing to put the defence

case before the jury. In particular, he is criticised for failing to put directly the defence case to the jury in relation to gunshot

residue. A significant part of the prosecution case was based on the fact that gunshot residue (GSR) was found on both the

left and right cuff of the hoodie worn by the appellant and also on his right hand. The prosecution invited the jury to

proceed on the basis that this was explained by the appellant handling the gun and perhaps test-firing it before it was used in

the murder. The gun was abandoned at the murder scene, so there was no question of direct contact with the gun after the

shooting.

5. However, during the course of the trial, the defence had raised the possibility of innocent contamination with gunshot

residue post the murder. It was canvassed that contamination could have been caused by the arresting Gardaí, or that it

could have been explained by contact with Mr. Cullen or Mr. Taylor or by contact with an area of the Primera in which he

travelled which was not tested for gunshot residue, such as the seats. It was submitted on appeal that the judge’s charge was

deficient in failing to put the defence case in relation to innocent contamination to the jury. It was further submitted that the

charge was deficient in failing to put the defence case that there was no evidence that the appellant knew that a murder was

going to take place or that he intended to assist in its commission.

6. Another criticism of the trial judge’s charge was that, while he correctly told the jury that they had to be unanimous

because by the time the jury came to deliberate there were only ten jurors, he did not accede to a defence request that there

should be a specific direction that no juror should feel pressurised into agreeing to a verdict with which he or she did not

agree. The charge is further criticised for what was said in relation to the burden of proof and in particular, what was said as

to what amounted to a reasonable doubt. In that regard, in a situation where essentially the same point has been argued in

the course of two previous appeals and rejected by this Court, this was not the subject of oral submissions. However, it was

dealt with fully in the written submissions and counsel made it clear at the hearing of the appeal that he was maintaining his

position in that regard. It is convenient to begin with this ground of appeal.

Burden of Proof

7. This ground of appeal contends that the judge erred in directing the jury as to the burden of proof, in particular by

conveying to the jury that a reasonable doubt should be of sufficient weight as to be decisive on a matter of importance in

the affairs of a member of the jury, as opposed to being of sufficient weight so as to cause a delay in making a decision on

such a matter on the available evidence. As it happens, this Court has on two fairly recent occasions dealt with the manner

in which judges refer to reasonable doubt in their charges. In both cases the appeal was from a trial presided over by the

same trial judge as presided in this case and in both cases his formulation was broadly similar. (See DPP v. Doyle [2015]

IECA 131 and DPP v. Marta Herda [2017] IECA 260).

8. Unusually, in the present case, in a situation where the judge’s charge was interrupted by events outside his control, the

judge dealt with the question of reasonable doubt not once, but twice. On day 31 of the trial he commented:-

“The responsibility never shifts from the prosecution to the accused. The accused is entitled to sit or stand mute

as it were and say, ‘I am pleading not guilty, prove it.’ And it is a responsibility accordingly which the

prosecution has of a very high order. And that responsibility is known as the standard of proof of proof beyond

reasonable doubt. And the prosecution therefore at all times must prove every limb and element of the case

without any responsibility being cast upon the defence in any way to do anything. And they must do it to that

standard of proof known as proof beyond reasonable doubt. You will possibly have heard this phrase, sometimes

people say ‘Beyond doubt’, sometimes people say, ‘Beyond all reasonable doubt.’ Various formulations have

been used, they’re in my view quite unhelpful. The principle is that the prosecution must prove the case to the

standard known as proof beyond a reasonable doubt.

Now, the question then arises as to what is or is not a reasonable doubt. And you, ladies and gentlemen, decide

what is or is not a reasonable doubt. It is what you think it is, nothing more and nothing less. It has however,

been the responsibility of judges over the years to seek to give assistance to juries as to what rationally speaking a

reasonable doubt might be regarded as being. And it is sometimes described or defined as that sort of doubt

which one of us might entertain if we were contemplating and thinking about an activity or an action of the

greatest seriousness in our lives. And thinking about the matter in the most thorough fashion uphill and down

dale, we were still left as a matter of reason with a doubt as to whether or not we ought to proceed. If we had

such a doubt it might well be regarded by you as constituting a reasonable doubt. And were you to take the view

that you should turn away from and not pursue the contemplated course of action, this obviously is a decision of

a kind which ranks with the most serious decisions any of you are likely to be called upon to make in your lives.

Many examples are taken like a decision to move house or to emigrate or something of that kind. But I think it

will suffice to say to you it is a decision of the first magnitude by any yardstick. And you can appreciate that if

you’re called upon to take such a decision, you will address all factors in the equation, consider all relevant facts,

apply your powers of reasoning, your experience of life and your common sense. And if you were contemplating

a step of great seriousness and having done all of that, you were still left in a state of doubt of a kind which

meant that you didn’t -- you decided not to pursue or decided to turn away from the contemplated or proposed

course of action, that would be, I think, is fair to say, a reasonable doubt. Although as I’ve said to you as a

matter of principle, a reasonable doubt is what you think it is.

Now, the responsibility imposed on the prosecution in a criminal case is sometimes contrasted with the

responsibility imposed on the plaintiff in a civil case. Let us take the example of a road traffic accident outside the

building. I am going home, I run across the road failing to check whether the pedestrian light is green or red and

I’m knocked down. The -- a dispute might arise between me and the driver of the car which knocked me down

as to who was at fault. Maybe there might be a case where there would be a debate as to whether the light was

green or red or something of that kind. And if there was such a dispute, it would be dealt with in the Four Courts

by a judge sitting alone, not a jury. And the judge would have to decide as to who was right and who was wrong

by that standard known as proof on the balance of probabilities. Which version of events as given in evidence

was the more probable version? Was it that of the injured party known as the plaintiff who is pursuing or suing

the driver who is the defendant as a result of say, being knocked down or was it as it were, the driver of the car?

And I could not sit there if I were hearing such a case in the Four Courts paralysed so to speak, not knowing

which way to jump. Surely the first thing for which I draw my salary is to decide things, whether I’m good or

bad at it. But I will have to decide if needs be what the position was by a whisker or a nose. Which, even by that

narrow margin, the more probable version of events was.

You can see, ladies and gentlemen, that that is a world away from the situation which applies in the present case,

a criminal case, where the case must be judged on the basis that the -- that the prosecution must prove their case.

That is to the say the accused -- the accused guilt beyond a reasonable doubt.

(…)

Now, I have referred to the concept of a reasonable doubt, and I have sought to assist you with a definition of

what that might be. You will see, ladies and gentlemen, that the key or one of the key words perhaps is,

‘Reasonable’. It is a doubt based on human reason. It is not a fanciful doubt, it’s not a scrupulous doubt, a

manufactured doubt, an absurd doubt. It is based upon the application of human reasoning on the material before

you. And I suppose, there are people in the world who may take even with very serious matters a slightly devil

may care attitude. And might say, ‘Look we’ll drive on, it’ll be all right on the night’. There might be people at

the other end of the scale who find it terribly hard to make serious decisions. Obviously, the reason there are 12

of you are, is to ensure, so to speak, that everybody with their different strengths and weaknesses brought

together as it were, will reach a decision in accordance with the principles of -- to which I have referred. It is

neither as it were, one extreme or the other as I have referred to.”

The judge then went on to give examples of an unreasonable or manufactured doubt.

9. In the case of The People (Attorney General) v. Byrne [1974] I.R. 1, the Court of Criminal Appeal, in the course of its

judgment, said:-

“The correct charge to a jury is that they must be satisfied beyond reasonable doubt of the guilt of the accused,

and it is helpful if that degree of proof is contrasted with that in a civil case.”

10. In this case, the trial judge discussed the question of a need to prove the case beyond reasonable doubt at considerable

length. He used the phrase beyond reasonable doubt again and again. He made clear that it was for the jury to decide what

is or is not a reasonable doubt and that it was what they thought it was, nothing more or nothing less. All the discussion is

about doubt. He referred to the fact that it is sometimes defined as the “sort of doubt which one of us might entertain if we

were contemplating and thinking about an activity or an action of the greatest seriousness in our lives” and said that

“thinking about the matter in the most thorough fashion uphill and down dale, we were still left as a matter of

reason with a doubt as to whether or not we ought to proceed. If we had such a doubt it might well be regarded

by you as constituting a reasonable doubt”.

The judge returned to deal with the same territory on day 32, 14th March, 2016 but on this occasion dealt with it in a

somewhat more limited form, though again contrasting the civil standard which he described as a “world away” from the

standard of proof which applies in criminal cases.

11. As in DPP v. Doyle [2015] IECA 131 and DPP v. Marta Herda [2017] IECA 260, the Court is satisfied that the judge

dealt in a proper manner with the question of the obligation on the prosecution to prove the case beyond reasonable doubt

and therefore, this ground of appeal fails.

The necessity for unanimity

12. It is submitted that, in the particular circumstances that arose, and it is pointed out that they were unusual, the trial was

unsatisfactory and the verdict was unsafe in a situation where the trial judge merely told the jury that they were required to

be unanimous and that they were to proceed on the basis of the necessity of unanimity. The defence asked the judge for a

specific direction to the jury to the effect that no juror should feel pressurised into subscribing to a verdict with which they

did not agree. It was argued that there was a particular need for such a direction in a situation where the jury was down to

ten jurors and where the jury was commencing their deliberations at 16.45 on 16th March, which was of course the eve of

the St. Patrick’s Day public holiday.

13. In the view of the Court, there is evidence on a daily basis in cases across the country that individual jurors are fully

aware of their responsibilities. There are disagreements in relation to the overall outcome of cases, sometimes there are

disagreements in relation to individual counts on an indictment, sometimes verdicts on some counts are unanimous and on

other counts by majorities, and not always by the same majority. In reality, the defence were anxious that the judge should

specifically highlight the right of an individual juror to dissent, and thus the right of the jury to disagree. In the view of the

Court, there was no such obligation. It is important to appreciate that the jury was under no time pressure. Arrangements

were in place for the jury to deliberate on Friday, 18th March if necessary, there would have been nothing at all unusual

about that and indeed, if necessary, to deliberate further thereafter. The Court therefore rejects this ground of appeal.

Alleged failure to put the defence case

14. It was submitted that the defence case was not adequately put by the judge in the course of his charge to the jury and

that, as a result, the trial was rendered unsatisfactory and the verdict unsafe. The judge is criticised for not putting in

sufficiently clear and stark terms the defence contention that there was not sufficient evidence to establish that the appellant

knew that a murder was to take place or that he assisted in its commission. More particularly, the judge is criticised for

failing to give clear directions to the jury as to the legal consequences of concluding that the prosecution had failed to

exclude the reasonable possibility of innocent transference or contamination in relation to the gunshot residue.

15. In assessing the criticism made of the judge for failing to put the defence case, it is important to note that this is not a

case where the defence ever presented or sought to advance a specific positive defence such as those which are put forward

in cases where an alibi is raised or where defences such as self defence, provocation or in a different context, claim of right

are proffered. Nor was it the case that the defence had put forward a specific explanation for the gunshot residue. Instead,

the defence canvassed a number of possibilities, including that the contamination might be innocent, might be attributable to

contact with an area of the Primera that was not tested, might be attributable to contact with Mr. Cullen, or an area of the

clothing of Mr. Cullen or another occupant of the car that was not the subject of testing or it might be the result of

interaction with members of An Garda Síochána. The issue of gunshot residue was a very significant part of this case and

was so identified by counsel for the prosecution in his closing address. In these circumstances, the judge dealt with the issue

of gunshot residue by reviewing all the evidence in that regard in a very comprehensive fashion and focusing on the cross

examinations that were conducted of the various prosecution expert witnesses.

16. Counsel for the appellant made further arguments in relation to the alleged failure of the trial judge to adequately direct

the jury as to the gunshot residue and refusing to direct the jury as to the legal consequences of finding that the prosecution

had failed to exclude the reasonable possibility of innocent transference or contamination. The appellant’s argument was that

the gunshot residue could have been transferred from one of his companions, from the Primera or from one of the Gardaí

who arrested him. He cited the English case of R. v. Maguire & ors [1992] 2 All E.R. 433 as an example of the potential

significance of the reasonable possibility of innocent contamination.

17. In the Court’s view, the defence was anxious that the judge would, in effect, make a speech for the defence, or failing

that, that he would at the very least, define the issues in terms that the defence identified as appropriate. In particular, the

defence wanted the judge to address the question of gunshot residue in isolation and ask whether there was no reasonable

possibility of an innocent explanation. On the other hand, the prosecution were saying that the jury had to look at the

combination of all the strands of evidence and that if they did that, a jury could and should conclude that taking the strands

together, there was no credible innocent explanation for the combination of circumstances that were established. The judge

dealt with the matter by reviewing the evidence in considerable detail. Attentive jurors, or those following the trial, could

have been left in no doubt about the nature of the evidence or about what each side was contending was the significance or

otherwise of the evidence.

18. The defence contends that the judge’s failure, as they say occurred, to put the defence case was a particularly grave

error in a situation where they say that the judge had specifically summarised the prosecution contentions. This seems to

arise from an observation by the trial judge while discussing the question of common design. In the course of his charge, he

said:-

“It is not necessary for the prosecution, needless to say, to prove the precise involvement of a particular

individual. It may well be the case of course that without being able to pinpoint the precise involvement of

person, his acts, his precise actions that you would be left in a situation where you could not be satisfied beyond

reasonable doubt of a person’s involvement in the common design or his possession, so to speak, of the relevant

mental state. You might just lack the material to be in a position to be satisfied, for example, that he -- that he

was guilty beyond reasonable doubt. In other cases, however, the extent of the involvement proved by the

prosecution, either as a primary fact or by inference, might well be sufficient to allow a jury properly to be

satisfied of the extent -- of the fact that the individual was part of the common purpose to kill and accordingly

was liable for murder. And the -- Mr. Owens [senior counsel for the prosecution] explicitly, if you like,

made that point in his speech effectively.” [Emphasis added]

The complaint about lack of balance or symmetry is based on the highlighted sentence. In the view of the Court, the

highlighted material does not justify the complaint of a lack of balance. The Court is satisfied that if the judge’s charge is

read as a whole, it would be seen to be careful, comprehensive and balanced. Accordingly, the grounds of appeal that

related to the criticisms made of the trial judge’s charge are dismissed. The Court will now consider the grounds that relate

to admissibility of evidence.

Admissibility of Evidence

19. It was a feature of the case that there were quite an extraordinary number of challenges to the admissibility of evidence.

Virtually every piece of evidence which the prosecution proposed to tender was the subject of a challenge. The contents

page of the appellant’s written submissions lists the following areas which correlate with the grounds of appeal lodged:-

“Admissibility issues

(vii) J.C. legal arguments for all admissibility issues.

(viii) Admission of seizure and procurement of data re mobile phones

(ix) Admission of stop, arrest, detention of the appellant

(x) Taking of the appellant’s DNA swabs

(xi) Taking of the appellant’s fingerprints

(xii) Seizure of the appellant’s clothes

(xiii) Seizure of a van. (This relates to a Mercedes van located close to the murder scene to which the

prosecution was able to link the appellant. Subsequent enquiry established that the van was stolen.)”

20. At the start of the second day of the hearing of this appeal, counsel on behalf of the appellant indicated that the grounds

of appeal in relation to the taking of the DNA swab, fingerprints and clothes and the ground relating to the seizure of the van

were not being pursued and the Court was not being asked to rule in respect of the complaints that had been formulated in

respect of each of those procurements. For the sake of completeness, the Court is in a position to say that it would, in any

event, not have been prepared to uphold any of the grounds of appeal relating to these issues. In order to provide context for

the admissibility issues that remain live, it is necessary to say a little more about the case that the prosecution sought to

mount.

Summary of the Prosecution Case at Trial

21. This summary is prepared by reference to a summary of evidence that appears in the course of the written submissions

filed by the prosecution and by reference to an overview of the case offered by counsel for the respondent at the invitation

of the Court.

22. The late Mr. Shay O’Byrne was shot dead on 13th March, 2009 at 20:15.27. He was shot with a revolver in the

driveway of his home at 3 Tymon North Park, Tallaght, by Garrett O’Brien who was wearing a dark hooded top. The shots

were recorded on a CCTV system in a house in nearby Tymon North Gardens which is located at the end of a cul-de-sac

which covered a path leading to Tymon North Park. Approximately 30 seconds thereafter, a saloon car corresponding in

colour, shade and shape to the Primera which features in the case was seen to reverse to the end of the cul-de-sac and stop.

It appeared that the front driver side headlight was not working properly. The driver got out and ran down the path, returned

shortly afterwards and got back into the car which sped away. A resident at the end of the cul-de-sac then saw a male in a

dark jacket which was flapping, come up the path from Tymon North Park. This individual wearing dark clothes was visible

on CCTV some 12 seconds after the car left. There was other evidence of a person wearing dark clothes exiting the Tymon

North Gardens on foot.

23. The gunman, who it was established was Garrett O’Brien, was delayed at the murder scene by the partner of Mr.

O’Byrne, Ms. Sharon Rattigan, and a struggle ensued, in the course of which, she took the gun from him. During the course

of the struggle, a phone referred to in the course of the trial as the “Tymon phone” was dropped. Subsequently DNA

matching that of Mr. O’Brien was recovered from it, as well as from a can of “Red Bull” that fell from his pocket. He fled

across Tymon North Park towards the path leading to the cul-de-sac at Tymon North Gardens. The prosecution

summarised his situation as being that his helpers had gone and he had been left behind.

24. There was evidence that residents of the Tymon North Gardens had seen a silver Nissan Primera 00 D with tinted

windows before the murder. Connecting the various strands, the prosecution pointed to the evidence that earlier that

evening, at 17.45, the Primera was observed parked outside the house of Eugene Cullen at 92 Derry Road, Crumlin. Men

were seen tinting the windows. At this time, a white Ford Transit Van (03 D 37962) which was later found to have been

stolen was also parked on Derry Road.

25. Continuing to follow the Primera’s movements that evening, CCTV footage from a Topaz service station at Fortfield

Road, Terenure, showed it arriving at the forecourt at 18:28.44 and departing at 18:30.28. The appellant got out on the

driver’s side. He went into the shop and paid for petrol. He bought an O2 top up voucher 2735019922486 dated 13th

March, 2009, with the time stamp 18.30. The “Topaz phone”, as it was referred to at trial because it was topped up with

the O2 voucher purchased there, was activated earlier that afternoon. It was being used around the time that the Primera

was at the service station to make calls to the “Sequence 53” and “Rossfield” phones by way of an O2 cell site at Fortfield,

Terenure. The top up voucher was later recovered by Gardaí from the Primera and O2 records established that the voucher

was used to top up the so-called “Topaz phone” at 18:32.17. The prosecution’s case was that the appellant used the “Topaz

phone” to communicate on the day of the murder and to assist in the commission of the murder.

26. The defence made the point at trial and again on this appeal that there was no proof that the appellant was using the so-

called “Topaz phone” and therefore, no proof that he was present at the locations and times associated with it. The defence

argues that no inference could be drawn from the fact that he bought the top up that he used the phone particularly in a

situation where there was evidence that the phone was in use by another person at the time the top up was being purchased.

The defence also make the point that the CCTV footage from the Topaz station did not show the appellant getting back into

the Primera. The prosecution offer a somewhat different gloss on the CCTV footage. They refer to the CCTV showing the

appellant walking away from the shop and the Primera heading around the service station forecourt and towards the road in

his direction and the fact that both disappeared from CCTV coverage implying that the appellant may have re-joined the

others in the vehicle.

27. The Primera was again caught on CCTV footage, this time at the drive through McDonald’s on the Naas Road close to

Red Cow Moran Hotel at 19:35. CCTV footage put the Primera in the car park of Red Cow Moran Hotel between 19:32

and 19:42. The Primera was shown parked close to a white car, corresponding in appearance to the white Nissan Micra

belonging to Garrett O’Brien and its occupants were seen interacting with the occupant of the white car. The Primera then

headed off towards the Ballymount Estate and was followed shortly afterwards by a silver saloon car, just after the white

car had moved out of CCTV view. Cell site analysis recorded the “Topaz phone” interacting with what are referred to as the

“Sequence phones” consistent with these sightings and the subsequent presence of a car matching the description of the

Primera in Tymon North Gardens. The white car left the Red Cow Moran Hotel car park at 20:44 and headed in the

direction of the M50/N7. Cell site analysis of a phone referred to as the “Old Court phone” showed coincidental movement

of that phone towards Bray, where Garrett O’Brien lived.

28. Elsewhere, CCTV footage from the end of a cul-de-sac at Castle Lawns Estate showed that at 20:16.49 a car arrived

and parked there. This was a metallic green Volkswagen Passat (06 WW 5164), and it was subsequently established to have

been stolen. A person got out of that car on the driver’s side. A footpath leads from there to an artery road running between

Castle Lawns and Tymon North Gardens, which was the nearest exit route to the M50. A car with a similar appearance to

this car was visible on CCTV footage at the end of the cul-de-sac at Tymon North Gardens at 20:20.05 along with a white

van with a fridge unit on it. Later, a Mercedes van of similar appearance was found in Tymon North Gardens and this was

subsequently established to have been stolen.

29. When the green Passat was examined later it was found to contain a green plastic canister of petrol. The passenger front

door pocket held an undischarged bullet of the same calibre as the five shells in the revolver that was used in the

commission of the murder. One of the six chambers in the revolver was empty. The last call from the “Topaz phone” to the

“Sequence 53 phone” was at 20:16.33 and the “Sequence 53 phone” went dead shortly thereafter.

30. It will be recalled that the murder was timed as occurring at 20:15.27. Following the murder, the direction of travel of

the “Topaz phone”, in communication with the “Sequence 56 phone”, was north along the path of the M50 and towards

Coolock. This matched the travel direction of the Primera which triggered the northbound E-flow camera on the M50 at

20:25. The “Topaz phone” made a final call using an O2 cell site at Coolock and went dead at 20:42.

31. CCTV footage from the Leisureplex complex in Coolock showed the appellant along with Eugene Cullen and Mark

Taylor at around 20:50. At this stage, Mr. Cullen was seen using a mobile phone and the “Primera phone” was active with a

call to the “Sequence 56 phone” at 20:50:13. These individuals left Leisureplex at approximately 21:47. A receipt that was

later found in the Primera showed food bought at Burger King drive-in in Coolock at 21:53. The Primera triggered the

southbound E-flow camera on the M50 at 22:43.

32. The Primera was stopped by Gardaí outside 92 Derry Road, the house of Eugene Cullen, at 23:00. The car was being

driven by Mark Taylor, the appellant was the front seat passenger and Mr. Cullen was behind the driver. The occupants

were arrested for scheduled offences under the Offences Against the State Act 1939 and were subsequently detained in

Tallaght and Rathfarnham Garda Stations. The appellant was wearing the clothes that were visible in the CCTV footage at

the Topaz service station and the Leisureplex complex and Mr. Eugene Cullen was also in the same clothes as shown on

CCTV footage from Leisureplex. The clothing corresponded with the dress as recalled by Gardaí from Derry Road earlier in

the evening. This is relevant to the gunshot residue evidence as it shows that the appellant was wearing the same clothes

throughout the day of the murder.

33. When the appellant was searched following arrest, he had a key in his possession for the Transit van at Derry Road on a

set of keys that included his house keys. That van was locked and Gardaí subsequently took it for forensic examination. A

fingerprint on the inside jam of the front passenger door corresponded with one of the appellant’s fingerprints. Two sets of

“Jack Murphy Splash” dark green rainwear, size XL, were found in the back of the van. One of these was still in its packet

and had a fingerprint of Eugene Cullen on the plastic wrapper.

34. Going back in time on the day of the murder to a certain extent, at 18:36, Garrett O’Brien travelled in his white Nissan

Micra from the rear car park of Red Cow Moran Hotel to the nearby Spar shop in Ballymount Industrial Estate on

Ballymount Road. He had made the same journey at the same time on the previous day. On this occasion he wore a dark

green rain top and matching bottoms. His top was the same as the Jack Murphy Splash tops found in the van. He purchased

two cans of Red Bull. A can of Red Bull left at the murder scene was one of a batch of 900 to 1,000, and other cans from

that same batch were found by Gardaí when they examined the stock in Spar Ballymount.

35. At 7:28 a.m. on 12th March, 2009, the day before the day of the murder, a Transit van which appeared to be identical

to the van seized in Derry Road was seen on CCTV at the Applegreen service station on the Naas Road, near the Red Cow

Moran Hotel. Eugene Cullen, wearing clothes that appeared identical to the clothes which he wore the following day, bought

a green petrol canister and filled it with petrol. He put the canister into the side door of the van and got into the front

passenger seat. The van then drove off. Shortly afterwards, a van of the same type, shape and colour as this van parked in

the rear car park of the Red Cow Moran Hotel beside a small white car having the same appearance as Garrett O’Brien’s

Nissan Micra which had been caught on a nearby speed camera a few minutes earlier. They were back again later that

morning and that evening and at about 20:27, a metallic green saloon-type car, which appeared to be a Volkswagen Passat,

arrived and parked close by. During the subsequent interaction, some of those associated with the white car and the van

appeared to change their clothes.

Evidence as to Gunshot Residue

36. A firearms residue test on the Passat disclosed particles characteristic of and consistent with firearms residue on the

inside of the driver’s door, on the seatbelt and in the driver’s cockpit area. This was a combined sample, and remaining

samples from the vehicle were not analysed. A firearms residue kit relating to the Primera was also analysed and contained

samples labelled as having been taken from the driver’s door, the front passenger’s side door, the rear passenger’s side door,

the rear driver’s side door and the internal driver’s steering wheel and belt buckles. No firearms residue was found on the

Primera samples.

37. The source of firearms residue in a vehicle, the trial heard, could be a firearm being discharged from a weapon or could

be from a person with firearms residue on him or an item with firearms residue on it being present in the vehicle. Shooting a

gun or cleaning a gun are potential sources of firearms residue on a person who engaged in such activities. The presence of

firearms residue in the Passat, together with the location of the undischarged round in that car and the empty chamber in the

revolver at the scene of the murder pointed to firearms-related activity in the Passat. Evidence in that regard was given by

Dr. Thomas Hannigan of the Forensic Science Bureau. He also gave evidence of the possible loss of particles from hands

and from clothing worn by a person over time.

38. The appellant’s clothes were taken and a firearms residue kit was deployed to sample his hands and face. His grey

hoodie was put in a paper bag which was sealed. Clothing was also taken from Eugene Cullen and Mark Taylor, the two

other occupants of the Primera, and firearms kits were used to sample their hands and faces. Particles characteristic of and

consistent with firearms residue were found on samples taken from the upper surfaces of the left and right cuff of the

appellant’s grey hoodie. Particles consistent with firearms residue were detected on a sample taken from the appellant’s right

hand. Nothing characteristic with or consistent with firearms residue was found on the samples taken from the cuffs of

clothing of Eugene Cullen or Mark Taylor or from the kits used to sample their hands and faces. Other areas of clothing

were not sampled and it was possible that particles characteristic of and consistent with gunshot residue were transferred

from other parts of the hoodie while it was in the evidence bag.

Evidence in relation to the Mobile Phones

39. In terms of the Garda response to the murder, the position is that Superintendent Eamon Dolan was on duty in Tallaght

Garda Station on the night of the murder. He was aware that the appellant, Eugene Cullen and Mark Taylor had all been

arrested under s. 30 of the Offences Against the State Act 1939 outside Eugene Cullen’s house at Derry Road. He was also

aware that Mark Taylor had an address at 49 Rossfield Park, Tallaght. In these circumstances, he was satisfied that there

were reasonable grounds for believing that evidence in relation to the commission of the offences for which they had been

arrested could be found at those addresses and issued search warrants under s. 29 of the Offences Against the State Act

1939 which were executed immediately. It may be noted that this murder investigation, of course, preceded the decision of

the Supreme Court in Damache v. DPP [2012] IESC 11.

40. In the course of these searches, the phone of a Ms. Louise Lawlor was seized. Also seized were the “Sequence 21” and

“Sequence 30” phones. It may be noted that the “Sequence phones” were so called as they were found to be consisting of a

“job lot” of prepay unregistered mobile phones with SIMS used by what the prosecution refers to as the “plotters” for the

purpose of planning and executing the murder. They had IMEI (International Mobile Equipment Identity) numbers

indicating that they had been sourced in the same batch along with several of the other phones referred to throughout the

trial.

41. The directory of Ms. Lawlor’s phone was examined and there appeared the phone number 085 7341451 which was

identified in the directory as Gary Flynn. The number 085 7114732 appeared in her directory under the name “UE” and this

number was attributed to the phone which came to be referred to during the course of the trial as the “Duff Damian” phone.

Ms. Lawlor gave evidence that the UE phone number was the phone number of Eugene Cullen and that the 085 7341451

number which appeared in her directory was that of his friend, Gary Flynn. The “Sequence 21” number operated in

association with the “Sequence 53” number in the Red Cow/Ballymount area on the morning of 12th March, 2009. The

“Tymon phone”, the “Sequence 21 phone” and the “Sequence 53 phone” were all operating in the Tymon North area later

that morning between 8:25 and 9:14 a.m. Meteor records disclosed a pattern of contact between the “Duff Damien phone”,

the “Tymon phone”, the “Rossfield phone” and 085 7341451 early in the mornings of both 12th and 13th March, 2009.

The prosecution case was that this pattern of activity was consistent with calls made by Eugene Cullen to other plotters with

a view to having them up and organised.

42. The search of the house at 49 Rossfield Park, the address of Mark Taylor, resulted in the seizure of the so-called

“Rossfield phone” on which 085 734 1451 was saved as “Gar F”. The telephone number of the “Duff Damien phone” was

saved on the Rossfield phone as “UE1”. It may be noted as somewhat of an explanation that 085 711 4732 was saved on

the “Tymon phone” as “Duff Damien” and Mr. Eugene Cullen bore a striking resemblance to Irish soccer international

Damien Duff.

43. Investigators sought and obtained access to the contents of the phones recovered (the “Tymon phone”, the “Primera

phone”, the “Oldcourt phone”, the Louise Lawlor phone, the “Rossfield phone”, the “Sequence 21 phone” and the

“Sequence 30 phone”) through applications to the service providers for PIN and PUK access codes processed through the

Chief Superintendent’s Office in Crime and Security at Garda Headquarters. The numbers of the SIM cards were identified

either from information retained on the phones or from enquiry from the service providers. Then, based on information

supplied in writing by Garda Damien McGarry, requests were made in writing under s. 64(2) of the Criminal Justice

(Terrorist Offences) Act 2005 for traffic and location data relating to the phone numbers associated with the “Tymon

phone” (there were two such requests), the “Duff Damien phone”, the “Rossfield phone”, the “Primera phone”, the “Topaz

phone”, “Sequence 53” and the “Oldcourt phone”, as well as phone number 085 7341451. Also sought were details of any

subscribers registered to those phones and of top ups made. Evidence in relation to this aspect of the case was provided by a

number of serving and retired Chief Superintendents.

Legal Submissions of the Appellant on the Issues of Admissibility

44. As already stated, the appellant challenged the admissibility of just about every element of the prosecution case. He

asserted that the searches of Derry Road and Rossfield were illegal and in breach of the constitutional rights of the

occupants there and that the seizure of the “Rossfield phone”, the Louise Lawlor phone, the “Sequence 21 and 30 phones”

and their subsequent examinations were in breach of constitutionally protected rights and were improper. He challenged the

seizure and search of the stolen van. He challenged the basis on which Gardaí set about obtaining data on all of the phones

from the service providers. He challenged the legality of the arrests of Eugene Cullen and Mark Taylor and the forensic

procedures which followed, which involved the taking of clothes, firearms residue testing and fingerprinting.

45. While the appellant narrowed the basis of his challenge on the morning of the second day of the hearing of the appeal, at

trial and indeed initially on appeal, the appellant contested the lawfulness of searches and seizures of phones in houses

where he did not live and the admissibility of evidence gleaned from phones that were not his, challenged the lawfulness of

the seizure of a stolen Transit van and the admissibility of the evidence located within it. He challenged the arrests of Mr.

Cullen and Mr. Taylor at Derry Road, the taking of their clothing, the fact that they were fingerprinted and that they were

tested for gunshot residue. It will be immediately evident that the challenges went well beyond what was normal and in

particular, that the appellant sought to mount challenges even when it was not his own constitutional rights that were

engaged, or certainly not his rights that were directly engaged. In a situation where the trial court held that the appellant had

no locus standi to challenge the admissibility of evidence on the basis of an assertion that the evidence had been obtained in

breach of rights of others, he challenges the correctness of this ruling.

46. While there were numerous challenges to the admissibility of different elements of the evidence, for the most part they

arose from a contention that the admissibility landscape had been altered beyond recognition by the Supreme Court decision

in The People (DPP) v. J.C. [2015] IESC 21. It was argued that the focus in the aftermath of J.C. was not on whether the

rights of an accused had been breached but on deterring unacceptable conduct or low standards on the part of investigators.

It was submitted that in those circumstances it is irrelevant whether the rights breached are those of the accused. So the

appellant felt entitled to challenge the seizure of phones from dwellings with which he had no connection, to assert the

privacy rights of the phone owners and to challenge the validity of the arrests of Mr. Cullen and Mr. Taylor. This approach

in large measure explains why the trial took 34 days.

Legal Submissions of the Respondent in relation to the issues of Admissibility

47. Counsel for the Director rejected the appellant’s propositions in relation to the effect of J.C.

48. It was submitted that the appellant cannot call the constitutional right to privacy of others in aid of his appeal. The

respondent cited various US Supreme Court cases and Irish cases to support the position that an accused can only rely upon

breaches of his own personal rights to challenge the admissibility of evidence.

49. Counsel for the respondent highlighted that relevance and reliability were the key tests when considering the admissibility

of evidence.

50. Counsel for the respondent submitted that complaints about how Gardaí got access to the contents of the mobile phones

recovered and got information that led to the evidence that related to the sim card numbers found are misconceived as these

phones were not owned or used by the appellant and his privacy rights were not engaged. The respondent further set out

their submission that PINs, PUKs and records of telecoms operators do not fall within the definition of “personal data”

under Directive 95/46/EC and the Data Protection Act 1998.

51. He further noted that the appellant did not have a legitimate or reasonable expectation of privacy as he was using the

mobile phones to assist in the commission of a murder.

Discussion of Admissibility Issues

52. This Court does not accept that the decision of the Supreme Court in J.C. has altered the exclusionary landscape in the

way suggested by the appellant. The decision does not provide a basis for challenging the admissibility of evidence as

obtained in breach of constitutional rights in a situation where the appellant cannot demonstrate or indeed even suggest any

interference with his constitutionally guaranteed rights. The Court does not believe that Mr. Flynn had the locus standi to

challenge evidence by reference to the constitutional rights of others. The appellant’s privacy rights were not in issue. He

was not entitled to raise issues in relation to the lawfulness of search and seizure of phones in houses where he did not

dwell. The appellant did not reside at Derry Road, or Rossfield, these were not his dwellings. He was not the user of the

Louise Lawlor phone or the “Rossfield phone”. The appellant had no privacy rights associated with the information stored

on the phones.

53. The appellant has sought to rely on the judgment of the Court of Justice of the EU in joined cases C-293/12 Digital

Rights (Ireland) Limited and C-954/2 Kartaner Londs Regiering. However, it does not at all follow from those cases or

indeed subsequent cases that any constitutionally guaranteed right of privacy of the appellant has been contravened.

54. The appellant’s challenge to the admissibility of the telephone evidence was based on two elements, a challenge to the

seizure of the phones and a challenge to the applications made by Gardaí to the service providers. The Court does not

accept that the appellant can raise issues about the inviolability of dwellings that were not his. So far as the applications to

the service providers are concerned, the Court is in no doubt that there was an adequate basis for the Gardaí seeking

information in relation to the phone linked to the appellant, phone 085 7341451.

55. In relation to the requests to the service providers, the Court is in no doubt that the various chief superintendants who

submitted requests had sufficient information in order to furnish requests pursuant to s. 64(2) in relation to the other phone

numbers that were seized during the investigation.

56. A concern expressed in the digital rights cases is that telecommunication data would be misused if retained in bulk and so

there should be an entitlement to have it erased. In this case the information was being sought, soon after it came into

existence, as part of an investigation into a very serious crime, a premeditated murder. The appellant is not entitled to call in

aid the EU data protection regime in order to cover his tracks or to assist in the covering of the tracks of others.

57. The Court rejects the various challenges to the telephone evidence and upholds the decision of the trial court to admit

the evidence.

The challenge to the stopping of the vehicle, the arrest and detention of the appellant

58. The evidence in relation to this was that a number of detective Gardaí were in an unmarked patrol car when they

observed a Nissan Primera, 00 D 9710. They turned their car and followed it and activated blue lights and sirens to bring it

to a stop. The Primera stopped without incident. Detective Garda McDermott and perhaps other Gardaí shouted, “Armed

Gardaí!” The Primera was brought to a stop outside 92 Derry Road at 23.00. The driver, Mr. Mark Taylor, was arrested by

Detective Garda McDermott at 23.30. Detective Garda Moore arrested Eugene Cullen. Detective Garda Conal Treanor gave

evidence of approaching the appellant and engaging him in a conversation that lasted five to ten minutes and then arresting

him at 23.30. The appellant was brought to Tallaght Garda Station by uniformed Gardaí. There, the appellant was searched

and he was found to be in possession of a set of keys which were seized from him. At trial, the arrest and subsequent

detention was challenged. The grounds of challenge were that there was no evidence from the Gardaí who stopped the

vehicle, that in doing so they had a particular power in mind whether one in common law or pursuant to s. 30 of the

Offences against the State Act 1939 as amended. Linked to this, there was no evidence that the Primera occupants were

ever told what was the lawful basis for the stopping of their vehicle or provided with information as to the state of mind of

Gardaí.

59. The trial judge found as a fact that the accused was arrested by Detective Garda Treanor at 23.30 on suspicion of

having committed a scheduled offence of unlawful possession of a firearm at the place of the murder and that he was not

under arrest prior to this. The prosecution stated that evidence supported this finding and it is not appealable. The appellant

asserts a de facto arrest period from when the Primera was stopped. The prosecution argues that this is not supported by the

evidence, that the Gardaí knew that a scheduled offence under the 1939 Act had been committed and they had powers to

stop the suspected car and its passengers and to search and interrogate them. The prosecution further submitted that even if

the physical act of detention had commenced at some earlier stage, the arrest was not invalid. The case of People (DPP) v.

Walsh [1980] I.R. 294 was cited as making clear that an arrest remains valid so long as reasons are given within a

reasonable time after the commencement of detention.

60. The substantial complaint is that the occupants of the Primera were detained on the roadside, their liberty was restricted,

they were separated in order to facilitate subsequent forensic testing and it was said that this was impermissible.

61. The appellant submits that if the decision in J.C. is to be regarded as confined to warrants then, by reference to the pre-

existing case law, evidence arising subsequent to the arrest should have been ruled inadmissible as involving a breach of the

appellant’s constitutional rights. If, on the other hand, the issue falls to be considered by reference to the principles

enunciated in J.C., then the evidence should have been excluded, either automatically or in the exercise of the trial judge’s

discretion on the grounds that the stopping and detention involved a breach of constitutional rights and amounted to

wrongful Garda conduct which must be discouraged. The prosecution, it is said, failed to prove that what occurred was not

conscious or deliberate.

62. The trial judge found as a fact that the arrest was at 23.30. However, that is not to say that the appellant and the other

occupants of the Primera were free to depart the scene without hindrance before that. It may well be that, had that been

attempted, Gardaí would have proceeded to arrest. Even if there was a de facto restriction of liberty from the time the car

was stopped, this does not invalidate what subsequently occurred. The period on the roadside was not part of a strategy to

facilitate a later arrest which would otherwise not have been possible. This case is not to be compared with cases such as

The State (Trimbole) v. Governor of Mountjoy Prison [1985] I.R. 550 or Odalopo v. Governor of Cloverhill [2009] 2

I.L.R.M. 166.

63. Even if the view is taken that the detention should be regarded as commencing at some intervening time between 23.00

and 23.30, it is the case that reasons for the arrest and detention were provided within a reasonable time thereafter and the

detention was therefore valid. The Court regards as risible the suggestion that evidence accumulated during an investigation

into an offence as serious as murder with a firearm should in the circumstances of this case be excluded to discourage Garda

misconduct. In any event, there was no Garda misconduct here.

64. The Court is satisfied that the trial was satisfactory in all respects, that the verdict was proper and safe and that the

appeal should be dismissed.