Court of Appeal dismisses appeals by two men convicted of participating in a criminal organisation for murder.

THE COURT OF APPEAL APPROVED JUDGMENT NO REDACTION NEEDED

Neutral Citation: [2025] IECA 239 Record No: 170/2023 160/2023 Edwards J. Kennedy J. MacGrath J.

BETWEEN/

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT V

JASON BONNEY APPELLANT

BETWEEN/

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT V

PAUL MURPHY APPELLANT

JUDGMENT of the Court delivered by Mr. Justice Edwards on the 10th day of November 2025.

Introduction

1. On the 17th of April 2023, Mr. Jason Bonney and Mr. Paul Murphy (“the appellants”) were sentenced in the Special Criminal Court (“SCC”), having been jointly tried and convicted before that court on individual counts of participating in the activities of a criminal organisation, contrary to s. 72 of the Criminal Justice Act, 2006 (“the Act of 2006”).

2. In the case of Jason Bonney (otherwise “Mr. Bonney” or “the first named appellant”), the offence in question was charged as Count No 3 on the indictment, and particularised on the basis that he did, on the 5th of February 2016, within the State, with knowledge of the existence of a criminal organisation, participate in or contribute to, activity intending to, or being reckless as to whether such participation or contribution could, facilitate the commission of a serious offence by that criminal organisation or any of its members, to wit the murder of David Byrne, by providing access to a motor vehicle 08 D 50847.

3. In the case of Paul Murphy (otherwise “Mr. Murphy” or “the second named appellant”), the offence in question was charged as Count No 4 on the indictment, and particularised on the basis that he did, on the 5th of February 2016, within the State, with knowledge of the existence of a criminal organisation, participate in or contribute to, activity intending to, or being reckless as to whether such participation or contribution could, facilitate the commission of a serious offence by that criminal organisation or any of its members, to wit the murder of David Byrne, by providing access to a motor vehicle 07 D 45775.

4. Mr. Bonney was subsequently sentenced to a term of 8-and-a-half years’ imprisonment and Mr. Murphy was sentenced to a term of 9 years’ imprisonment, respectively.

5. The appellants’ trial took place between the 10th of October 2022 and the 26th of January 2023. The appellants stood trial with a co-accused, a Mr. Gerry Hutch, who was charged with the murder of the aforementioned David Byrne but was acquitted. Two others had also been charged with crimes on the same indictment, i.e., a Mr. Jonathan Dowdall and a Mr. Patrick Dowdall, but they pleaded guilty in advance of the trial to individual counts of participating in the activities of a criminal organisation, contrary to s. 72 of the Act of 2006, and were sentenced later.

6. The appellants have appealed to the Court of Appeal against their respective convictions and the severity of the sentences imposed upon them by the SCC. However, this judgment is concerned only with their appeals against their convictions. The appeals are in each case rejected, for the reasons set out in detail below.

Notices of Appeal

7. The appellants lodged separate Notices of Appeal, and as such filed separate grounds of appeal. They advance some common grounds of appeal, and some individual grounds of appeal.

Grounds of Appeal on behalf of the First Named Appellant

8. By a Notice of Appeal lodged the 8th of June 2023, the first named appellant advanced eight grounds of appeal against his conviction, as follows:

(1) The S.C.C. erred in fact and in law in admitting into evidence a note of an uncautioned interview/conversation with the appellant conducted by Detective Garda Alan Crummey and Detective Garda Seamus Duffy at the appellant’s home on the 21st of February 216.

(2) The S.C.C. accordingly erred in fact and in law [in holding] that the appellant’s arrest on the 27th of May 2016, in part on reliance on this interview, was lawful.

(3) The S.C.C. erred in fact and in law in findings that the detention of the appellant was lawful in circumstances where the detention was based on an incorrect summary of the case against him.

(4) The S.C.C. accordingly erred in fact and in law in admitting into evidence the memoranda of the appellant’s interviews of the 27th of May 2016 in Ballymun Garda Station.

(5) In these circumstances, the S.C.C. further erred in fact and in law in failing to exclude the memoranda of the appellant’s interviews on the 27th of May 2016 on grounds of unfairness.

(6) The S.C.C. erred in fact and in law in its treatment of the evidence of witnesses called on behalf of the defence, one of whom was an alibi witness. The S.C.C. failed to have any or any adequate regard to this evidence and, in particular, failed to approach this evidence on the grounds that it should be preferred to the evidence of a rebuttal witness called by the respondent if it could reasonably be true.

(7) The S.C.C. erred in fact and in law in finding that the appellant was driving the suspect BMW vehicle at the material times, and that he did so with an intention to facilitate the commission of a serious offence in circumstances where there was no evidence to support any such conclusion.

(8) The cumulative effect of the aforementioned errors of the S.C.C. rendered the trial and verdict in respect of the appellant unsafe in all the circumstances.

9. During oral submissions counsel for the first named appellant applied to the Court for leave to add and rely upon an additional ground of appeal (i.e., “Ground A”). The proposed Ground A was in these terms:

“The SCC erred in allowing the State to call Paul Byrne to give rebuttal evidence.”

Counsel explained that this proposed additional ground had not been included in the original grounds of appeal as these had been prepared by a different legal team. Counsel for the respondent intimated that his client neither objected nor consented to the application, and would instead abide by whatever ruling the Court might make. The Court then permitted the appellant to proceed and make submissions on Ground A de bene esse, stating that the Court would rule on the application for leave to rely upon it in its judgment on the substantive appeal.

Grounds of Appeal on behalf of the Second Named Appellant

10. By a Notice of Appeal lodged the 31st of May 2023, the second named appellant advanced

38 grounds of appeal (under 9 headings) against his conviction, as follows: “General

1. The S.C.C. erred in refusing to accede to the various applications made on behalf of the second named appellant and on behalf of the co-accused, including those specifically adopted on behalf of the second named appellant, and having regard to all the circumstances, the trial was unsatisfactory and the verdict is unsafe.

Interviews before arrest

2. The S.C.C. erred in admitting three voluntary interviews which occurred on the 22nd February 2016, 3rd March 2016 and 9th March 2016 into evidence in the course of the trial.

3. The S.C.C. erred in admitting the three interviews when they ought to have been conducted under a specified statutory detention. The Court failed to exclude the evidence which denied the accused fair procedures and statutory protections.

4. The S.C.C. erred in admitting evidence of Interview 3, where exhibits were produced to the second named appellant outside of a s. 4 detention and thus denying the second named appellant his full protections as prescribed by law.

5. The S.C.C. erred in admitting interviews subsequent to the first interview as per DPP v Cleary 2001 WJSC-CCC 1673.

CCTV and data protection

6. The S.C.C. erred in refusing to rule inadmissible certain CCTV evidence, having regard to all the circumstances of fact and law including, in particular, the following:

(i) 26 Buckingham Street;

(ii) Maxol Garage, Howth Road;

(iii) Beachcomber Pub;

(iv) DonnyCamey Credit Union;

(v) Kavanaghs Pub;

(vi) Sean Tracy House.

7. In particular, the S.C.C. erred in refusing to find that the said CCTV had been retained and accessed in breach of law and in a manner which failed to provide minimal protections for the rights of the second named appellant, the co-accused and citizens of Ireland and the EU, including their constitutional rights, human rights and privacy rights, including those under Charter of Fundamental Rights of the European Union, in particular in circumstances where the prosecution had failed to prove that such retention and access had been carried out in a manner that was a) in accordance with law; b) necessary; c)

proportionate; d) transparent and in compliance with data protection laws.

8. Further, the S.C.C. erred in both law and fact in holding that the second named appellant may not assert privacy rights if he does not accept that the Avensis vehicle recorded in the impugned CCTV footage was not his car. This was particularly so in circumstances where, as the Court noted, the second named appellant accepted that it was in car in the footage shown of the Maxol service station on the Howth Road and in the Beachcomber Pub. Having regard to his acknowledgment, the Court ought to have provided the second named appellant will full privacy right protections.

Arrest

9. The S.C.C. erred in fact and in law finding that the arrest of the second named appellant was lawful.

10. The S.C.C. erred in its ruling that the second named appellant's arrest for “involvement in murder” was sufficient to convey to the second named appellant that he was being arrested on the basis of common design. Specifically, the Court erred in holding that the language used in the arrest was reflective of common design. The Court erred in neglecting to give ordinary meaning to the wording used in the arrest of the second named appellant.

11. The S.C.C., as a result of the above, erred in deeming the arrest lawful, as the Sergeant involved had no statutory power of arrest for “involvement in murder”, which is not a specific crime under Irish law.

12. The S.C.C. erred in law and fact in determining that the second named appellant was aware and understood the specific crime for which he was arrested. The Court erred in fact when finding that the second named appellant was aware that he was arrested for murder and not for involvement in murder.

Detention

13. The S.C.C. erred in deeming the second named appellant's detention lawful.

14. The S.C.C. erred in deeming the Member in Charge was provided with sufficient information to direct the second named appellant's detention and that there was no obligation to conduct a higher level of enquiry.

15. The S.C.C. erred in deeming the extensions of detention lawful in the course of the second named appellant's detention. The Court erred by not ruling in favour of the second named appellant who has a right to fair procedures throughout his detention.

Search and seizure of Avensis vehicle

16. The S.C.C. erred in admitting receipts found in the Avensis vehicle into evidence at trial as the search of the vehicle was unlawful and without statutory basis.

17. The S.C.C. erred in finding that s. 7 of the [Act of] 2006 conferred a power of search on the state to search the interior of the Avensis vehicle and examine the objects found therein.

18. The Court erred in refusing to engage with the specific arguments set out in relation to the search of the vehicle post seizure. The Court erred in failing to recognise the distinction between examination of the interior and exterior of the vehicle.

Warrants

The 26 Buckingham Street warrant

19. The S.C.C. erred in holding that the warrant in relation to 26 Buckingham Street was valid. The Court further erred in law that there was no obligation on the State to inform the District Judge that the premises being searched was a family home.

20. The S.C.C., as a result of the above, erred in not omitting the evidence as per the judgment of DPP v JC.

21. The Court erred in admitting the evidence and failing to address the submission that the warrant in question ought to have been specific nature of the search.

The Champions Avenue warrant

22. The S.C.C. erred in deeming the warrant at Champions Avenue to be illegal, yet admitting the fruits of the search into evidence against the second named appellant. The Court erred in exercising its discretion and admitting the warrant into evidence.

23. The S.C.C. erred in finding that a general warrant was not invalid and erred in its failure to engage in the submissions made that the use of two warrants on the property was lacking in proportionality and an excessive use of power.

General

24. The Court erred in holding that the prosecution had adduced the necessary proofs to demonstrate the jurisdiction of the S.C.C. to try the offence charged against the second named appellant.

25. The Court erred in failing to adequately address the Defence submission that the Prosecution had failed to prove the necessary ingredients of the offence charged against the second named appellant, including in respect of his knowledge of the existence of a criminal gang or that he was facilitating same.

Verdict

26. The S.C.C. erred in failing to address the submission made at the close of the case in relation to the lack of evidence provided by the prosecution in relation to maps of the Bella Street area, on which the prosecution relied. The Court erred in finding that there was one exit from Bella Street in the absence of any evidence as to the date on which the map relied upon to support that proposition was created.

27. The S.C.C. erred in its finding that Kevin Murray was at Bella Street prior to the Regency murder as no identification evidence was presented to the Court in connection therewith. The Court erred in failing to address this submission which was made to the Court at the close of the case in respect of same.

28. The S.C.C. erred in finding that the transit van exiting Bella Street was the same van used for transport to the Regency Hotel due to a lack of identification evidence or any specific evidence and/or reasoning as to how it was the same vehicle in both instances.

29. The S.C.C. erred in finding that the second named appellant's fifth interview placed him at Buckingham Village, despite an earlier interview contradicting same. The Court erred in failing to place weight on the accused's earlier descriptive interview and by favouring the fifth interview where the accused's answers were uncertain.

30. The S.C.C. erred in fact by failing to address in its verdict the 19 minute gap between two Avensis identifications, namely, between Beachcomber pub and Casino Park. The Court erred in finding that it was the same Avensis vehicle in both instances despite the break in the chain of evidence.

31. The S.C.C. erred in fact in finding that the receipts found in the second named appellant's Avensis did not tally with the times in the CCTV. The Court erred in coming to this

conclusion due to lack of evidence as to the accuracy of the taxi meter.

32. The S.C.C. erred in fact by finding that the second named appellant made phone calls to Eddie Hutch at Buckingham Village. The Court placed undue weight on portions of the second named appellant's interviews to support this finding, while disregarding certain other portions which supported the defence case.

33. The S.C.C. erred in fact by its contradictory verdict of relying on the distinctive markings on the Avensis to place the second named appellant at Buckingham Village at certain times, while also holding in other instances that those markings were not sufficient to convince the Court beyond reasonable doubt that the vehicle in question was the second named appellant's car.

34. The S.C.C. erred in its verdict by finding that the second named appellant was driving the Avensis Taxi at Buckingham Village.

Verdict: general

35. The S.C.C. erred in law or in fact or in a mixed question of law and fact in refusing an application for a directed verdict of acquittal on behalf of the second named appellant in relation to the counts before the Court.

36. The S.C.C. erred in law or in fact or in a mixed question of law and fact in failing to address the evidence in accordance with law, in failing properly to apply the presumption of innocence, the onus of proof and the standard of proof in a criminal trial in all the circumstances.

37. The S.C.C. erred in law or in fact or in a mixed question of law and fact in failing to address issues raised in the second named appellant's closing submissions; and in failing to give adequate reasons for rejecting the defence case as actually made.

Conviction: conclusion

38. The S.C.C. erred in law or in fact or in a mixed question of law and fact in convicting the second named appellant.

Proposed Judgment Structure

11. At the outset the Court will set out a summary of the facts as found by the SCC.

12. It is then proposed to deal with grounds of appeal shared in common in the first instance, and thereafter to deal with remaining grounds unique to one or other individual appellant.

Where grounds of appeal have been grouped by the appellants for the purposes of their written submissions, the Court will similarly group them for the purpose of addressing them unless otherwise stated.

Facts as Found by the Special Criminal Court

The Central Event

13. The facts as to the central event are uncontroversial. What occurred was captured on CCTV at the Regency Hotel, Drumcondra, which was the primary crime scene. The essential facts are summarized in the judgment of the SCC and we adopt their summary:

“On the 5th of February 2016, David Byrne was murdered in the course of an orchestrated attack by a six man hit team at a boxing weigh in event, which was held at the Regency Hotel, Drumcondra. MGM Promotions, which is controlled by Daniel Kinahan, was associated with this boxing event, with MGM boxers scheduled to take part in boxing matches arranged for the following day.

The weigh in event commenced at 2 pm. Approximately 250 people attended this event including boxers, supporters, journalists and the general public. Daniel Kinahan was seen by a journalist at the boxing event prior to the storming of the venue by the hit team. The hit team arrived in a Ford Transit van at the back gate to the Regency Hotel, located at Grace Manor park at 14.21. The van waited at the gates for seven minutes, without movement. At 14.28, two people got out of the van. One was dressed as a woman. The other wore a flat cap and was not disguised. These two people entered the hotel via a service entrance and walked down an internal corridor of the hotel, arm in arm, in an attempt to pass off as a couple.

Within the hotel, these two people quickly made their way to the ballroom, where the boxing weigh in was taking place. Throughout this journey, the person dressed as a woman remained on the phone. By 14.32, they arrived in the ballroom and opened fire. A man in the ballroom took flight out a back entrance to the hotel, with the two hitmen in pursuit. Luck was with him. He turned left into the car park behind the hotel, whereas the two hitmen turned right and came back towards the service entrance of the hotel.

In the meantime, pandemonium took hold within the ballroom, with the occupants running in the opposite direction to the gunmen and towards the front entrance of the hotel. The van, which had carried the two hitmen, drove off from its stationary position at 14.30, towards the main entrance of the hotel. On its way to the main entrance, it paused for 50 seconds, drove forward and then paused again for a further 30 seconds before continuing to the entrance where three men, dressed as gardaí, emerged from the Ford Transit at 14.31, each carrying an AK 47 machine gun. The panicked crowd who emerged from the ballroom ran towards these three hitmen. David Byrne was one of the last out amongst this crowd, having turned back towards the ballroom momentarily before continuing towards the front entrance. He was a target for the hitmen.

The first assassin into the foyer of the Regency picked him out and shot him to the ground beside the reception desk. The second assassin into the foyer of the Regency shot at him when he noticed him on the ground and then nimbly stood up on the reception desk and again shot at him as his motionless body lay on the ground. David Byrne was shot six times. His cause of death was multiple gunshot wounds from a high velocity gun. He died immediately at the scene.

Another person hiding at the reception was checked out by the second assassin. He clearly was not a target of the hitmen and was not shot at. Meanwhile, the first assassin ran around the bar and another entrance to the hotel in search of another target. All three hitmen met up at the bar area, two proceeded to check out the ballroom area whereas the third headed towards the service entrance.

Meanwhile, the person dressed as a woman and the man with the flat cap reentered the hotel via the service entrance they previously had entered by. They, again, ran around the hotel with their handguns visible, meeting one of the … garda dressed hitmen in a hallway, before emerging and joining with the three garda dressed hitmen who came from the front entrance.

At times, the person dressed as a woman can be seen fixing the wig that the person is wearing. At times, the man wearing the flat cap is lagging behind, struggling to keep up with the pace of the person dressed as a woman. They all got back into the van by 14.34, which had, in the meantime, performed a U turn and then the van drove back out the gate it had entered by.” Evidence as to Prior and Subsequent Events

14. The prosecution case was not that either of the two accused were among the hitmen, who had included amongst their numbers the man in the flat cap and the man dressed as a woman.

15. Rather, in the case of Jason Bonney, the first named appellant, it was a circumstantial evidence case to the effect that he had provided material assistance to those involved in the central event by, inter alia, transporting the man in the flat cap in his Black BMW X5 jeep, 08 D 50847, to and from various locations both in the lead up to, and in the aftermath of, the central event, including picking that individual up from a location a short distance away from the Regency hotel shortly after the central event and transporting him away from the scene, thereby assisting in his getaway.

16. In the case of Paul Murphy, the second named appellant, it was similarly a circumstantial evidence case to the effect that he had provided material assistance to those involved in the central event by, inter alia, transporting the man who had been dressed as a woman in his Silver Toyota Avensis taxi, 07 D 45775, to and from various locations both in the lead up to, and in the aftermath of, the central event, including picking that individual up from a location a short distance away from the Regency hotel shortly after the central event and transporting him away from the scene, thereby assisting in his getaway.

17. The following further matters were established in evidence to the satisfaction of the SCC, and formed part of the circumstantial evidence case against the appellants:

“At 14.41, six men are captured on CCTV footage running down an alley way from Charlemont Estate into the car park of Saint Vincent's GAA club. One of those men is wearing a flat cap similar to the assassin at the Regency and is of a similar build.

Another person has long blond hair, similar to the person wearing a wig at the Regency and is pulling a suitcase behind. The man wearing the flat cap gets into a black jeep, which is a black BMW X5.

A silver Ford Transit van subsequently was found very badly burned out at 153 Charlemont Estate. It did not have a registration plate, but its chassis number revealed it to be 03 D 58865. On the ground, outside of the van, several live and cooked off cartridge cases, together with bullets, were found. When the van was subsequently examined, several cooked off and discharged cartridge cases, together with bullets, were also located. The cartridge cases and live ammunition found in and around the van were all suitable for discharge from AK 47 type rifles.”

18. Further down the road from 153 Charlemont Estate and beside 156 Charlemont Estate, a laneway gives access to the car park of Saint Vincent's GAA club.

19. The SCC considered that:

“Having regard to the Ford Transit van, 03 D 58865 being found in a burned out condition, the similar characteristics of two of the persons running down the lane to two of the hitmen at the Regency, in terms of one wearing a flat cap and another with long blond hair, the same number of people running down the lane as presented at the Regency, the closeness in time between when they are depicted running down the lane on the CCTV footage and the attack at the Regency, the closeness between this location and the Regency and the ammunition and the nature of it found in the burned out van, the Court is satisfied beyond reasonable doubt that the burned out van at 153 Charlemont Estate is the Ford Transit van which was at the Regency and that it carried the hit team from the Regency to this location. The Court is further satisfied beyond reasonable doubt that the six men seen running down the laneway beside 156 Charlemont Estate are the five hitmen, together with the driver of the Ford Transit, who had been involved in the Regency attack.”

20. The SCC found that at 14.42 on the same date, CCTV footage captures six cars driving away from the direction of Saint Vincent's GAA grounds. One of these cars, a light coloured Toyota Avensis taxi, turned right on to the Malahide Road in the direction of Fairview. The others, including a black BMW X5 with distinctive dirt marks, turned left on to the Malahide Road in the direction of Artane. Extensive CCTV was harvested in the course of the subsequent Garda investigation which, on the prosecution case, established material movements of both the black BMW X5 and the light coloured (accepted by the SCC as being silver) Toyota Avensis taxi. Further supporting evidence relied on in that regard in so far as the case against the first named appellant was concerned, included utterances made by him to An Garda Síochána both on a voluntary basis, and while in detention following arrest; and in so far as the case against the second named appellant is concerned, included phone evidence, both in relation to numbers called and cell site analysis, and an item of real evidence found in his possession, namely a key card to Buckingham village (a gated community off Bella Street not far from the Regency hotel in which the raiders’ base or centre of operations was believed, and asserted in evidence, to be located). It was from there that persons and vehicles involved in the Regency shooting left that day to travel to the hotel.

21. The SCC heard evidence that the man in the flat cap had stayed at the Regency Hotel in room 2104 the night before the attack, a room which was booked by a Ms. Patricia Dowdall. CCTV footage revealed that a man known to gardaí, i.e., a Mr. Patrick Dowdall arrived at the hotel at 19.24, paid for the room and checked in. He went to room 2104 at

19.28 and left it at 9.35. A man arrived at the hotel at 20.44 and went to the room which Patrick Dowdall had checked into.

22. This man stayed in the room that night, having had a couple of drinks in the hotel bar, and left it the following morning at 09.54. He was dressed in the same clothes and white runners as the previous night and carried a green canvas bag. This man left the Regency in a black Mercedes taxi at 10.31. CCTV footage shows a similar taxi arriving at Amiens Street at 10.44. A man with a similar build, carrying a similar bag, wearing similar clothes and shoes is depicted on the CCTV footage around number 1 Amiens Street at

10.49. The SCC was satisfied beyond reasonable doubt that this was the same man who had stayed in room 2104 at the Regency the previous night.

23. The SCC viewed CCTV footage from number 40 Amiens Street, which is across the road, towards Buckingham Street, showing a tall man, walking up and down the road. At 10.53, the man from room 2104 and the tall man are seen walking together towards Buckingham Street. At 11.23, the man from room 2104 and the tall man are seen walking up Buckingham Street and turning into Bella Street. The SCC was satisfied beyond reasonable doubt that the shorter man depicted with the canvas bag, green bag strewn across his body, was the same man who stayed in room 2104 the previous night.

24. The man at the Regency attack wearing the flat cap was identified by Detective Inspector John Caldwell as Kevin Murray from Strabane. Detective Garda Adrian Ahearne attached to Letterkenny Garda Station made the same identification of the man in the flat cap at the Regency attack. He also viewed the CCTV footage relating to the man who stayed in room 2104 on the 4th of February and who left the Regency on the 5th of February and identified the man depicted therein with the green canvas bag as one and the same Kevin Murray.

25. The SCC stated that it was satisfied beyond reasonable doubt that the man turning into Bella Street in the company of the tall man at 11.23 on the 5th of February was the man who subsequently was wearing the flat cap at the Regency attack, who was established to be Kevin Murray. The prosecution had further asserted that the van carrying the hitmen to the Regency emerged from Bella Street at 12.59, accompanied by a light coloured Avensis taxi which it was contended was Paul Murphy's vehicle. Arising from the Court's earlier finding in relation to Kevin Murray, the Court was satisfied beyond reasonable doubt that Kevin Murray travelled from Bella Street to the Regency Hotel.

26. In light of that finding, the SCC was satisfied beyond reasonable doubt that the van which emerged from Bella Street at 12.59, which was of the same colour and of a similar shape to the van seen later at the Regency, was the vehicle which carried Kevin Murray to the Regency Hotel.

27. The case against the appellants was that both were present in Bella Street that morning, that they travelled in convoy with another four cars to Saint Vincent's GAA club from Donneycarney Church car park and after the Regency attack they each drove one of the hitmen from Saint Vincent's GAA club, along with the other four cars, intending or being reckless as to whether such activity could facilitate the commission of a serious offence by the Hutch Criminal Organisation, members of which were believed to be behind the attack.

Evidence as to ownership and use of Toyota Avensis taxi 07 D 45775

28. The SCC also heard evidence that the Toyota Avensis taxi 07 D 45775, whilst formally registered to Paul Brady, was actually owned by Paul Murphy. Paul Murphy indicated to An Garda Síochána that he was the only person who drove this car and that it was only him who was driving this taxi on the 5th of February 2016, although he raised the possibility of his taxi having been cloned. Mr. Brady, who gave evidence, accepted that taxi cloning did occur in the taxi business, although he indicated that this would more likely occur to a man like himself, who owned a number of taxis rather than to a single taxi driver. He indicated inter alia that Paul Murphy was generally a day driver, who worked in the north side of the city, that a Toyota Avensis was a common type of taxi and that the colour of Mr. Murphy's taxi was a common colour.

29. The SCC referenced in some detail in the course of its judgment evidence that had been received concerning utterances by him to gardaí. The SCC heard that Paul Murphy explained in his first voluntary interview with An Garda Síochána that as he was from the north inner city, he knew Gerard Hutch's brother, Neddy, and the rest of the Hutch family also. In the course of his interviews conducted whilst he was in custody, he explained that on occasion Neddy Hutch had lent him money for a fee and that he had, in fact, bought the Toyota Avensis at issue from Neddy Hutch. Paul Murphy also indicated that he was in contact with Jonathan and Patsy Hutch, which ranged from being in contact with them once or twice a day, to sometimes not for weeks. All three of the Hutches had lent him money. Paul Murphy indicated in his fifth memorandum of interview conducted whilst in custody on the 31st of May 2016, that he had made arrangements with Neddy Hutch to meet him at Buckingham Village on the morning of the 5th of February. He said that he was looking to get another loan from Neddy Hutch for repairs which were necessary to the taxi. He said that he rang him three times before he left his home in Swords, although this is not reflected in his mobile phone records. He corrected himself to indicate that he might have made one of these calls from Buckingham Street. His mobile telephone calls reveal two calls to Neddy Hutch on the 5th of February 2016 at

12.52 and 12.56. Paul Murphy indicated that he went to Buckingham Village, having left his house in Swords, travelling in through Santry, Drumcondra, down Clonliffe Road, Ballybough, into Summerhill, on to Portland Row, right into Killarney Street, right on to Buckingham Street, left into Bella Street and into Buckingham Village.

30. He indicated that at approximately 10.15, he gained access to Buckingham Village by using a key card which had been left in his taxi by a fare three days earlier. Neddy Hutch was not there when he got to Buckingham Village. However, Patsy Hutch was, and he spoke with him for 30 to 40 minutes while waiting for Neddy to arrive. After waiting this length of time, he said he left Bella Street and turned left up Buckingham Street.

31. Paul Murphy had not referred to this visit to Buckingham Village in his earlier memoranda of interview, particularly in his third interview conducted earlier on the 31st of May 2016, when he accounted for his movements on the morning of the 5th of February. The visit to Buckingham Village only emerged when Paul Murphy was asked about the key card which was found in his taxi. Paul Murphy indicated that he had a number of small taxi jobs around the Sheriff Street area on the 5th of February. He said that at around 1 pm he got a job around Gardiner Street, which brought him to the corner of the Howth Road in Fairview. After he dropped that job off, he got a sandwich at the Maxol Garage station on the Howth Road, around 1.20 pm. He said that he parked at the Beachcomber, having performed a U turn when he saw a parking space. He pulled in at the Beachcomber for

10 to 15 minutes and then drove up Collins Avenue, down the Malahide Road and back into town. He went via Fairview, turned right up toward Ballybough and right on to the North Circular Road. Paul Murphy was categorical in the course of his interviews with An Garda Síochána that it was only himself who was driving his taxi on the 5th of February 2016.

32. The judgment of the SCC also deals in extenso with CCTV evidence and mobile phone record evidence received during the trial.

The movements of the Toyota Avensis Taxi and the black BMW X5

33. The CCTV evidence varied in quality. Paul Murphy challenged the prosecution’s assertion that the taxi which is depicted in the CCTV was one and the same taxi as his. The SCC was ultimately satisfied beyond reasonable doubt that it was indeed his taxi. The evidence before the SCC comprised a montage of CCTV footage which the prosecution asserted related to the movements of the vehicles of interest. The montage included footage of a silver Toyota Avensis taxi turning left from Buckingham Street into Bella Street at 10.56, a silver Toyota Avensis taxi exiting Bella Street at 11.49 and travelling on to Empress Place. While at trial it was not accepted that this was Mr. Murphy's taxi on the CCTV, Mr.

Murphy, in the course of interview, accepted that this was his vehicle exiting Bella Street at 11.49 on the CCTV footage.

34. At 12.04, a silver Toyota Avensis taxi was to be seen turning left from Buckingham Street on to Bella Street. A silver Toyota Avensis taxi left Bella Street and drove on to Empress Place at 12.06. At 12.13, a silver Toyota Avensis taxi turned from Buckingham Street on to Bella Street. At 12.18, a distinctive black BMW X5 turned into Bella Street, which the prosecution assert is the vehicle which Jason Bonney was driving that day. At 12.30, a silver Toyota Avensis taxi exited Bella Street and turned on to Buckingham Street. At 12.41, a silver Toyota Avensis taxi turned left from Buckingham Street on to Bella Street.

At 12.42, a distinctive black BMW X5, which the prosecution assert Jason Bonney was driving that day, left Bella Street. At 12.52, Paul Murphy's mobile phone records show that he called a mobile number 0868769111. When asked, in the course of interview, whether he recognised this number he indicated that he did and that it was Neddy Hutch's number. A second call was made to this number by Paul Murphy at 12.56.

35. Paul Murphy indicated in the course of his interviews that the reason for these calls was that he was looking to borrow money from Neddy Hutch. He said that having called him, Neddy indicated he was on his way and that he remained in Buckingham Village speaking to Patsy Hutch.

36. However, Paul Murphy indicated in the course of interview that these calls occurred before he left Swords in the morning and that he drove directly to Buckingham Village to meet Neddy Hutch. He corrected this assertion by stating that one of the calls might have been made when he was in Buckingham Village. Between 12.52 and 12.56, the prosecution assert that Paul Murphy was in Buckingham Village.

37. At 12.59 a silver transit van and a silver Toyota Avensis taxi exited Bella Street and turned left on to Buckingham Street. At 13.14, a silver Toyota Avensis taxi pulled into a Maxol petrol station on the Howth Road. Paul Murphy accepted that this was his vehicle at the Maxol station and that it is himself who was depicted on the CCTV footage from the garage. He bought a sandwich in the shop. When he pulled out of the garage he turned left on to the Howth Road at 13.21. The SCC was satisfied that Paul Murphy’s Toyota Avensis appeared to be of silver colour in this portion of the footage.

38. At 13.22, a silver Toyota Avensis taxi parked outside The Beachcomber licensed premises, having completed a U turn on the Howth Road. Paul Murphy accepted that this was his vehicle and that he was driving the vehicle at this time. He indicated in the course of his interviews that he pulled into The Beachcomber to eat his sandwich. At 13.41, Paul Murphy, in his silver Toyota Avensis 07 D 45775, pulled out of his parking space at the Beachcomber pub on to the Howth Road and turned right on to Collins Avenue. Again, the SCC noted that Paul Murphy's Toyota Avensis appeared as being silver in colour in this portion of CCTV footage.

39. The CCTV montage also revealed that a distinctive black BMW X5, which the prosecution asserted was the BMW which Jason Bonney was driving on the day in question, had also travelled down the Howth Road and turned right on to Collins Avenue. Paul Murphy moved from his parked position just as the BMW approached The Beachcomber and pulled on to the Howth Road just after the BMW passed him.

40. Also included in the CCTV montage was footage showing that at 14.00, six vehicles exited Doneycarney Church, and turned left on to the Malahide Road into traffic. They were a black saloon taxi, a black BMW X5 with distinctive dirt on the side, a black saloon car, another black saloon car, a silver saloon car and a smaller silver saloon car. At 14.02, seven vehicles turned right from the Malahide Road on to Casino Park. They were a black saloon taxi, a black BMW X5 with distinctive dirt on the side, a black saloon car, another black saloon car, another black saloon car, a silver Toyota Avensis taxi and a smaller silver saloon car.

41. At 14.06, a black saloon taxi and a black BMW X5 were captured on CCTV in Saint Vincent's GAA club car park, opposite the laneway beside 156 Charlemont Estate, which gives access from Charlemont Estate to Saint Vincent's GAA car park, the black saloon taxi passed the laneway first. It was followed by a BMW X5, which parked opposite the laneway. A third black car came into view momentarily before reversing. The black saloon taxi then crossed back past the laneway and out of view. At 14.41, a person wearing a blond wig and dragging a suitcase, a man with a flat cap, a man with a high viz jacket and three others ran down this laneway. The man in the flat cap got into the BMW vehicle and all the other men turned left out of view. The BMW pulled out of its parked position turning right.

42. The CCTV montage showed that at 14.42, six vehicles emerged from Casino Park on to the Malahide Road. They were a black saloon car, another black saloon car, a black saloon taxi, a smaller silver saloon taxi, a black BMW X5 with distinctive dirt on it and a silver Toyota Avensis taxi. Five of those cars, to include the black BMW X5, turned left on to the Malahide Road, with four of those cars breaking the traffic lights. The silver Toyota Avensis turned right on to the Malahide Road.

43. At 14.43, a silver Toyota Avensis is depicted at Kavanagh's licensed premises and at the Shower Centre, travelling towards the city on the Malahide Road. At 14.49, a silver Avensis taxi is depicted travelling on Buckingham Street and turning left on to Bella Street. At 14.56, a silver Toyota Avensis left Bella Street and travelled on to Empress Place.

Evidence as to Taxi Fare Receipts

44. Paul Murphy indicated that he had a number of taxi jobs on the 5th of February and that receipts in respect of same could be found in the pocket of the driver's door of his taxi, details of which are set out in extenso in the judgment of the SCC. The SCC acknowledged that on their face, the receipts suggest that Paul Murphy was engaged as a taxi driver at times when the prosecution case was that he was in Buckingham Village and when he was allegedly in convoy with the BMW X5, having turned right on to Collins Avenue. Furthermore, one of the receipts suggested that he picked up a fare immediately after it was alleged that he drove from Saint Vincent's GAA club with one of the hitmen.

The SCC considered that having regard to Paul Murphy's utterances to An Garda Síochána, a question arose over the reliability of these receipts.

45. Paul Murphy had indicated that on the morning of the 5th of February, having left his house in Swords, he drove to Buckingham Village having made an arrangement to meet Neddy Hutch to discuss getting a loan from him. While this visit was not initially mentioned by Paul Murphy as referred to earlier, the SCC was satisfied beyond reasonable doubt that this was the journey undertaken by Paul Murphy on the 5th of February, having regard to his later account of the journey and his acceptance in the course of interview of it being his vehicle on the CCTV footage at this time.

46. The SCC found that that course of action did not tally with him taking two fares on the way to this meeting. More definitively in this regard, he accepted he pulled into the Maxol Garage station on the Howth Road where he purchased a sandwich and then moved to The Beachcomber to eat it. Very oddly, in the SCC’s characterization, one of the fares almost completely covers this time between 13.14 and 13.21, which the SCC considered established, at the very least, that the receipts were not accurate. This did not tally with his accepted movements on the CCTV at this time.

47. Furthermore, Paul Murphy had indicated that he finished work at 3 pm on the 5th of February and that he recollected being home by 3.30 pm to 3.45 pm. The SCC considered that this did not tally with the last two fare receipts, number 2401 and number 2402, which had him engaged at 15.41 and 16.19. There was the added peculiarity that there are three fares of a very short distance, 0.5 kilometres and 0.1 kilometres, which took a significant length of time. Indeed, two of these very short distance fares related to the last two fares which recorded him engaged as a taxi driver at a time when he indicated he was finished for the day and at home. The SCC concluded:

“This raises a significant question as to whether these fare receipts are genuine.

Having regard to all of these issues, the Court is satisfied beyond reasonable doubt that, at the very least, the fare receipts are inaccurate and, therefore, do not establish that Paul Murphy was engaged on these fares at the times asserted, if at all.”

The Key Card to Buckingham Village

48. The evidence was that Paul Murphy's vehicle was seized by An Garda Síochána on the 19th of February 2016. When it was searched on the 6th of March 2016, an ACT card, serial number 0001657463 was located in the glove box of Paul Murphy's vehicle. Paul Murphy indicated to An Garda Síochána in the course of interview that this key card had been left in his car by a passenger three days before the Regency. He indicated that he used this card on the morning of the 5th of February at 10.15 to gain access to Buckingham Village to meet Neddy Hutch.

49. There was further evidence that on the 24th of March 2016, a search was conducted of 56 Buckingham Village, the home of Catia Maza, who has a security maintenance role in relation to Buckingham Village. Batches of ACT cards in numerical order were found in sealed packs of 10. An open pack of six cards was found, which included cards numbered 0001657465 to 0001657470. Accordingly, cards numbered 001657461 to 0001657464 were missing from that pack. The ACT card found in Paul Murphy's vehicle, number 0001657463 was ostensibly one of those missing cards.

50. On the 25th of February 2016, a search was conducted of 18 Champion's Avenue, the home of Patsy Hutch and Patrick Hutch junior. In the course of that search an ACT card number 0001657464 was found in the pocket of a jacket hanging on the stairs. Within that pocket, a wallet containing the driver’s licence of Patsy Hutch was found. This was ostensibly another one of the ACT cards missing from the pack found at 56 Buckingham Village.

The evidence of Julia McGlynn

51. Julia McGlynn was called as a witness on behalf of Jason Bonney. Julie McGlynn's family home is 104 Newbrook Avenue. Her mother lived there at the time of the Regency shooting incident. As of that date Jason Bonney had been engaged for some time in renovating a house on Newbrook Avenue, i.e., number 47, which was across the road and three houses up from Julie McGlynn’s mother's house. Julie McGlynn gave evidence that she knew Jason Bonney for over 30 years and while they drifted apart for a period after the Regency attack, they became very friendly again.

52. The SCC heard that the Bonney family home was close by at 17 Donaghmede Drive. It was Ms. McGlynn's son's 13th birthday on the 5th of February, and she was having a party at her mother's house for him. She had gone there to get ready for the party on the morning of the 5th of February. Her mother went to 10 o'clock mass and she continued pottering around the house getting ready for the party. She stated in her evidence that just after 11 o'clock, there was a knock at the front door. It was Jason Bonney's father, William, looking for her mother. He asked could he use the bathroom as the toilet in his son's house across the road had been pulled out because of the renovations.

53. Under cross examination, the witness stated that William Bonney had told her that he was waiting for Jason to come back to him with the jeep. She offered him a cup of tea, which he had whilst he picked at sandwiches and cakes which had been left out for the party.

She stated that a while later there was another knock on the door. It was the first named appellant, Jason Bonney, who came into the house. Her evidence was that they engaged in chitchat and then the two Bonney’s left at around 11.30.

54. Ms. McGlynn indicated in cross examination that there was no conversation about a key to the jeep or where the vehicle in which Willie supposedly arrived was parked, nor did she see Jason Bonney give his father anything. She walked out with them because she was wondering where her mother was. She said that Jason went across to his house and Willie Bonney got into the jeep and drove off. Ms. McGlynn said that the jeep looked like the vehicle in photographs of the BMW X5 at issue.

55. Ms. McGlynn further stated that she went to pick her children up from the school bus, which dropped them off at Ardagh Avenue beside Donaghmede Shopping Centre at approximately 2.35 (in the afternoon). She brought her children back to her mother's, arriving there at 2.45 pm to 2.50 pm. Ms. McGlynn stated that when she got to her mother's house, she couldn't get into the driveway because there was a truck parked outside her house. She got out of her car and went over to 47 Newbrook Avenue and asked for Jason. She did this because she had seen him driving the truck previously.

This truck was a blue open back truck with railings on the side. The workmen called Jason out. She went back to the car. Jason came out and moved the truck. She drove into her driveway and as she got out of her car Jason was apologising. Ms. McGlynn stated that she gave out to him, saying that it wasn't good enough, and that the road was blocked every time she came down it. She complained that there were so many vans and things on the road with the building work going on. She said that Jason Bonney then gave her son a tenner (€10) for his birthday, which she reckoned was to quieten her down. She indicated that she then went inside and saw no one else for the rest of the day.

56. The SCC heard that William Bonney and his wife Gretta Bonney were both deceased by the date of the trial. William had passed away in 2019 and Gretta died in 2021. There was evidence that Ms. McGlynn was approached by Mr. Bonney's solicitor in October 2022. In relation to Ms. McGlynn’s version of events, the SCC noted she did not see any car belonging to William Bonney left behind after he was said to have taken the jeep. She accepted that he was a man who was always in a car. Ms. McGlynn stated that she had seen Willie Bonney driving the jeep more than she had seen Jason driving it. She had seen him driving around Donaghmede and going up and down to the shopping complex or up to the Donaghmede Inn. She said her impression was that Jason and his father were on speaking terms in her house.

57. Ms. McGlynn accepted that she heard about the Regency shooting soon after it had occurred. In terms of Jason Bonney's alleged involvement, she learned of that about two to three weeks afterwards when Gretta Bonney called to her mother's house, asking her to explain what had happened on the day Willie came to the house. Gretta was upset and said there had been a major argument between Jason and Willie about the jeep and its involvement in the Regency and that Jason had shouted at his mother to go around to the McGlynn house and find out about him and his father being in the house on the morning of the Regency. Ms. McGlynn indicated that she did not speak with Jason Bonney again, although she did see him in passing, until Christmas 2016 when she bumped into him in the shopping centre with her mother. They had a short conversation there, followed up by a long conversation in his house, which was to the effect that his father had destroyed his life because of his father having the jeep at the Regency. Jason Bonney asked her that if he needed her would she talk to his solicitor, which she agreed to. Ms. McGlynn had done nothing about bringing this information to anyone's attention, including Jason Bonney's solicitor, or An Garda Síochána, until she was contacted by Jason Bonney's solicitor in October 2022.

The evidence of Peter Tyrrell

58. A Mr. Peter Tyrrell also gave evidence on behalf of Jason Bonney. Mr. Tyrrell's wife had given evidence on behalf of the prosecution relating to the CCTV footage taken from their house for the 5th of February 2016, earlier in the trial. This footage formed part of the montage of CCTV footage relating to the alleged movement of the BMW X5 and it was referred to earlier. Their house is situated at 96 A Gracefield Road, Artane. In the footage, the distinctive black BMW X5 can be seen driving along Gracefield Road, Artane.

Driving in front of the BMW is a white car which drives into the driveway of 96 A Gracefield Road. Mr. Tyrrell indicated that this was him driving his car.

59. In evidence, Mr. Tyrrell stated that he was coming from Coolock village and had entered the Artane roundabout when a black BMW entered very quickly behind him and drove right up behind his car. As it happened, he knew the jeep, it was William Bonney's jeep, which he saw on a daily basis at Trinity Sport and Leisure Centre. He knew William Bonney. They were not on good terms due to a dispute between them which had resulted in civil proceedings over ownership of the club or the facilities. Having gone around the roundabout the jeep came up really close to him again and he recognised William Bonney driving the jeep with glasses on. Mr. Tyrrell said that he thought: "Bloody hell, I wonder what is going on." And he drove a bit faster and pulled into his driveway. He did not say anything to his wife.

60. Under cross-examination, Mr. Tyrrell indicated that after his wife gave evidence for the prosecution she came home and told him that his car was in the footage and that she was asked questions about whether she had spoken with her husband. Because of this he wanted to have a look at the footage. Rather than contacting the guards, to whom they had given the footage, he contacted Mr. Bonney's solicitor who showed him the footage.

He then told Mr. Bonney's solicitor that it was William Bonney who was driving the jeep.

This was the first time he had told anybody this. This is in circumstances where, when Garda Harkin called to the house regarding his wife giving evidence, Mr. Tyrrell had been privy to the conversation and had had a discussion about Jason Bonney. He told Garda Harkin about the civil proceedings, but he did not say anything about Willie Bonney driving the jeep that day.

61. In the course of his evidence to the SCC, Mr. Tyrrell was adamant that the jeep was Willie Bonney's jeep, that he saw the jeep every day down at the club and that any time he saw it being driven it was William Bonney driving it and not Jason Bonney. He knew nothing about William Bonney having a Lexus jeep.

Evidence of Paul Byrne

62. In rebuttal, the prosecution called Paul Byrne, William Bonney's son in law, to give evidence. Mr. Byrne and his wife, Jason Bonney's sister, came home from holidays late on the 4th of February 2016. It was a tradition in their house that when they returned from holiday, they visited her parents for lunch the following day. They had been doing this since they got married. On the 5th of February, they went to Gretta and Willie's house as always. They got there at 12 pm and stayed until 4 pm or 4.30 pm. Willie's jeep, the black Lexus, was there. Mr. Byrne indicated that this was the only jeep Willie had driven for the last 10 years. Mr. Byrne said that Willie did not leave the house before they departed. During the afternoon, news of the Regency broke on the radio and Mr.

Byrne recollected feeling shocked and saddened by the news.

63. In the course of cross examination, a sentence from Mr. Byrne's statement was put to him where it was recorded that: "We didn't really get on.". Referring to Jason Bonney.

Mr. Byrne accepted that this appeared in his statement, but he explained that he had not used those words, rather that he had said that he had no relationship with him and that when the statement was read over to him, he had pulled the guard up who took the statement and asked him to note his correction.

64. Mr. Byrne also indicated that Willie Bonney had explained to him that there was an ongoing issue with his son, Jason Bonney. Mr. Byrne explained that from 2013, Jason Bonney parted from the family, that there had been a falling out.

The SCC’s determinations in relation to Jason Bonney

65. The SCC said the following with respect to the evidence it had received in so far as it related to Jason Bonney:

“In relation then to Jason Bonney, in February 2016, Jason Bonney had possession of a black BMW X5 08 D 50847. He referred to the jeep as my jeep when speaking with the guards on a voluntary basis on the 21st of February 2016 and that he had the jeep since 2009. This vehicle was registered to his father's company, Bonney Construction. Jason Bonney explained in the course of an interview with An Garda Síochána on the 27th of February 2016, when he was arrested and detained for questioning, that while this was a vehicle bought to his father's company, Jason Bonney had kept it for a number of years as his father had not paid him for work which he had done for him when his father was wrapping up his business. This had arisen as a result of Jason Bonney's mother being diagnosed with cancer. He further indicated that his father was to take it back, but he had not spoken to his father for two years as they had had a falling out. He added that his father could take it if he wanted if he wanted it.

Jason Bonney gave an account of being between his house at 89 Drumnigh Woods and a house he was renovating at 47 Newbrook Avenue during the 5th of February.

He said he travelled between the two houses on perhaps three to five occasions that day. He stated that he got to 47 Newbrook Avenue in the BMW X5. He stated that he was certain that it was him who was driving the vehicle on the day in question.

He also indicated that he was friends with the Hutches, but also friends with the Finnegans. He referred to not having spoken with either side, namely the Kinahans or the Hutches, on the 5th of February. He indicated that he'd a keen interest in boxing and coached and trained in Corinthians for a while. Apparently Gerard Hutch has an interest in Corinthians Boxing Club.

As with Paul Murphy, the prosecution created a montage of CCTV footage relating to a black BMW X5 08 D 50847. They assert that this was a particularly distinctive BMW, having tinted windows, a silver rim around the windows and a faulty brake light on the left side. Most particularly, the BMW was badly in need of a clean and had significant distinctive dirt built up on the sides of the body. The Court is satisfied beyond reasonable doubt that the BMW depicted in the CCTV is the same BMW throughout. In practically all of the clips of CCTV asserted to relate to the BMW, the distinctive dirt on the BMW can be seen. In the few clips where the dirt is not apparent, the Court can draw and does draw an inference that it is the same BMW, having regard to the preceding and subsequent clip, the direction of travel and the time differential existing.”

66. Noting that counsel for Jason Bonney did not take issue with the prosecution’s assertion that the BMW depicted in the CCTV was the same BMW throughout the montage, but was maintaining that his client was a stranger to the movements of the BMW after it was suggested by the defence the BMW arrived at Newbrook Avenue, the SCC continued:

“Jason Bonney has called evidence which, in summary, is to the effect that Jason Bonney's father took the BMW from Newbrook Avenue at approximately 11.30 on the 5th of February, that Jason Bonney was seen at Newbrook Avenue at approximately 14.40 sorry, at approximately 14.45 and that the BMW X5 was seen being driven in an aggressive manner by William Bonney at 96 A Gracefield Road, Artane at 14.48.

So, under a heading in relation to the CCTV; at 11.36, a male came from Jason Bonney's house at Drumnigh Woods and got into a black BMW X5 which is noted to have registration number 08 D 50847 as it exits Drumnigh Woods at 11.38. The defence do not take issue with the prosecution assertion that it is Jason Bonney who got into the BMW, which Jason Bonney asserted in his interviews with An Garda Síochána that he drove the BMW as far as the house he was renovating at Newbrook Avenue.

At 11.41, the BMW stopped at Eddie's Fuels, Hole in the Wall Road, where a man wearing a light coloured hat, jeans and a hoodie exited the BMW, left a petrol cannister into Eddie's Fuels and returned to the BMW. It is noted that the man has a particular type of gait. At 11.45, the black BMW X5 was seen at Trinity Credit Union on Newbrook Road. At 12.04, the BMW turned on to the Howth Road from Station Road at the Cock and Bull licensed premises and passed The Beachcomber licensed premises at 12.06. At 12.18 the BMW X5 turned on to Bella Street from Buckingham Street. The journey from Drumnigh Woods to The Beachcomber took

28 minutes and the journey from Drumnigh Woods to Bella Street took 40 minutes.

At 12.42, the black BMW X5 left Bella Street and turned left on to Buckingham Street and was seen travelling up Summerhill Parade at 12.47, travelling on Collins Avenue at 12.48 and at 13.02, the BMW was seen travelling north bound on the Malahide Road at Doneycarney. At 13.18, the BMW returned to Drumnigh Woods and pulled in at a different location to that from which it had left. A male, wearing a light coloured hat and the same clothes as the man at Eddie's Fuels, ran from the vehicle towards Jason Bonney's house at 13.20. The journey from Bella Street to Drumnigh Woods took 36 minutes.

Four minutes later, at 13.24, a man with the same clothes emerged from Jason Bonney's house, carrying a bag. He walked back to the BMW with a similar gait to the man who had earlier been seen at Eddie's Fuels. He got into the BMW and left Drumnigh Woods at 13.26. A BMW passed Eddie's Fuels at 13.27 and the BMW passed Trinity Credit Union at 13.30. At 13.39, the BMW turned right on to the Howth Road at the Cock and Bull pub. At 13.39 the BMW drove past SuperValu in Raheny, towards Killester.

At 13.41, the black BMW drove by The Beachcomber licensed premises. As already referred to, Paul Murphy pulled out from The Beachcomber in his Toyota Avensis after the BMW passed. Both vehicles turned right on to Collins Avenue. The journey from Drumnigh Woods to The Beachcomber on this occasion took 15 minutes. At 14.00 hours, six vehicles exited Doneycarney Church car park and turned left on to the Malahide Road into traffic. They were a black saloon car, a black BMW X5 with distinctive dirt on the side, a black saloon car, another black saloon car, a silver saloon car and a smaller silver saloon car. At 14.02, seven vehicles turned right from the Malahide Road on to Casino Park. They were a black saloon car, a black BMW X5 with distinctive dirt on the side, a black saloon car, another black saloon car, another black saloon car, a silver Toyota Avensis taxi and a smaller silver saloon car. At 14.06, a black saloon taxi and a black BMW X5 are captured on CCTV in Saint Vincent's GAA club car park opposite the laneway beside

156 Charlemont Estate, which gives access from Charlemont Estate to Saint Vincent's GAA car park.

The black saloon taxi passes the laneway first. It is followed by a BMW X5 which parks opposite the laneway. A third black car comes into view momentarily before reversing. The black saloon taxi then crosses back past the laneway and out of view. At 14.41, a blond wigged person dragging a suitcase, a man with a flat cap, a man with a high viz jacket and three others run down this laneway. The man in the flat cap gets into the BMW vehicle and all the other men turn left out of view.

At 14.42, six vehicles emerged from Casino Park on to the Malahide Road. They were a black saloon car, a black saloon car, a black saloon taxi, a smaller silver saloon car, a black BMW X5 with distinctive dirt on the side and a silver Toyota Avensis taxi. Five of those cars, to include the black BMW X5, turned left on to the Malahide Road, with four of those cars breaking the traffic lights and the silver Toyota Avensis taxi turned right on to the Malahide Road.

At 14.45, the BMW X5 with distinctive dirt is seen on the Malahide Road, travelling in the Artane direction. At 14.48, the BMW X5 with distinctive dirt is seen on Gracefield Road travelling in the direction of McAuley Avenue. Specifically at 14.48, the distinctive BMW is seen passing 96 A Gracefield Road. A white car, which is driving in front of the BMW, pulls into the driveway of 96 A Gracefield Road. The BMW is a short distance behind the white car, but not immediately behind it. At 14.56, a BMW X5 travelled along Tonglegee Road in the direction of Kilbarrack. At 15.50, the BMW X5 with distinctive dirt arrived back to Drumnigh Woods and parked in the same location as it had done on its first return journey. A man of a similar were with similar clothes, a light coloured hat and a similar gait to the man earlier seen driving the BMW exited the BMW and returned to Jason Bonney's house. At 16.29, the BMW X5 with distinctive dirt and a faulty brake light, registration number 08 D 50847 left Drumnigh Woods again.”

67. The SCC was skeptical of the evidence of both Ms. McGlynn and Mr. Tyrrell and for various reasons rejected it as capable of being relied upon. Aspects of Ms. McGlynn’s evidence were characterized as “bizarre”, e.g., “that she had this vital exonerating information to give regarding her close friend, Jason Bonney, whose house she regularly visits, yet she did nothing about it until she was approached by his solicitor, after this trial, with all the attendant publicity, had started.” Further, Ms. McGlynn’s evidence was noted to conflict with other evidence, the SCC commenting:

“In terms of a conflict with other evidence, Ms McGlynn's evidence does not tally with the CCTV evidence to the effect that the BMW X5, which the defence accept was being driven by Jason Bonney, only leaves Drumnigh Woods at 11.38 and does not reach Trinity Credit Union until 11.45. Providing for the BMW reaching Newbrook Avenue, Jason Bonney discovering that his father was in Ms McGlynn's mother's house, going into the McGlynn house and engaging in chitchat with Ms McGlynn and his father before emerging from the house on any analysis must leave this group emerging from the McGlynn house well after approximately 11.30. This is particularly troublesome for Ms McGlynn's evidence, in light of the fact that she was expecting her mother back from 10 o'clock mass. By this stage, her mother was quite delayed. Also, she would appear to be quite incorrect that she regularly saw William Bonney driving this BMW jeep in light of Jason Bonney's indication that he had the jeep since 2009, referring to it as my jeep and Mr Byrne's evidence that William Bonney only drove a Lexus jeep.”

68. In regard to Mr. Tyrrell’s evidence, the SCC similarly characterized it as:

“bizarre that he would go to Jason Bonney's solicitor to look at the footage, rather than asking the guards to see it when he only very recently had been privy to a discussion with the guards regarding his wife giving evidence at the trial in relation to providing that very footage to the guards. No details were given as to how he knew what solicitors were acting on behalf of Jason Bonney.”

69. The SCC also noted conflicts between Mr. Tyrrell’s and other evidence, which it preferred, notably that of Mr. Byrne whom they characterized as having given “a very convincing account” of being in William and Greta Bonney’s house on the day of the Regency shooting and concerning what had transpired there.

70. The SCC went on to comment:

“More significantly, however, is the fact that Jason Bonney not only failed to make any mention of what is alleged by Ms McGlynn when he spoke to the guards about his possession of the BMW, having been arrested and detained for the offence of murder with a firearm but, in fact, made it quite clear that he had not spoken to his father in two years. He stated in his first interview, conducted whilst in custody on the 27th of May 2016, when asked how long had you the BMW, his answer was:

"Couple of years. Couldn't really say. Bought new in 2008. My father was to take it back, like, and I haven't spoken to me father about two years now, a bit of a falling out with him. Don't know, different matter, really, like, you know, not relevant to this or work or anything but a family matter. If he wants it he can take it."

In giving this answer, Jason Bonney makes no reference to his father taking the jeep on the 5th of February, nor of putting to one side the family argument which had been ongoing for two years, nor that there was a witness to his father taking the jeep that day, nor how he got the jeep back from his father for it then to be seized for him by An Garda Síochána on the 20th of February 2016.”

71. The SCC concluded:

“The Court is satisfied beyond reasonable doubt of the account given by Paul Byrne and is satisfied beyond reasonable doubt that William Bonney was at home in his house from when the Byrnes arrived at approximately 12 o'clock. The Court is further satisfied beyond reasonable doubt that the BMW jeep was not present at the address and that William Bonney's Lexus was present. The Court is also satisfied beyond reasonable doubt that William Bonney did not drive the BMW jeep since the time Jason Bonney kept it, which was at least for a minimum of two years before the Regency, although there are alternative times given in the course of Jason Bonney's interviews in relation to this.

The Court is also satisfied beyond reasonable doubt that William Bonney did not leave his house on the afternoon of the Regency until after the Byrnes left, which was well after the Regency events unfolded and were broadcast on the radio. By way of comment, this Court was lied to in the most malevolent manner. A dead father has been implicated in the Regency by his son's witnesses. That anybody thought that these lies would be accepted by the Court is, quite frankly, amazing.

However, to be clear, the Court is not relying on the fact that the Court was lied to by Jason Bonney's witnesses in determining the case against Jason Bonney.

So, to turn then to the conclusion of the Court in relation to Jason Bonney. To return then to the prosecution case against Jason Bonney, the Court is satisfied beyond reasonable doubt that the black BMW X5 depicted in the CCTV montage is the same BMW throughout. The Court is further satisfied beyond reasonable doubt that the person seen at Eddie's Fuels at 11.41, having exited the black BMW, is the same person as seen back at Drumnigh Woods at 13.20, running to Jason Bonney's house and seen getting back into the black BMW X5 at 13.24 with a black bag.

The Court is further satisfied beyond reasonable doubt that this is also the same person as seen exiting the black BMW X5 at Jason Bonney's house at Drumnigh Woods at 15.50, in light of the person on all of these occasions wearing the same clothes, a similar hat and having a similar gait. In light of the fact that it is accepted by Jason Bonney that he who gets into the BMW in Drumnigh Woods at

11.36 and asserts that he drove to Newbrook Avenue, the Court is satisfied beyond reasonable doubt that he remained the driver of the vehicle at 11.41 when seen at Eddie's Fuels, having just left Drumnigh Woods.

In light of the Court's determination that the person at Eddie's Fuels at 11.41 is the same person at Drumnigh Woods at 13.20, 13.24 and 15.50, the Court is satisfied beyond reasonable doubt that this person is Jason Bonney. Furthermore, the Court is satisfied beyond reasonable doubt that the person depicted in the CCTV at Drumnigh Woods at 13.20 is not in his 70s, in light of his movements when running towards Jason Bonney's house. While it appears to be the case that Jason Bonney did not drive straight down Grange Road on either of the journeys from the Hole in the Wall Road and did turn off at Newbrook Road, this does not imply that it was not him who continued to drive the BMW to Bella Street for the first journey inbound and to Saint Vincent's GAA car park for the second journey inbound. Having rejected the evidence of Ms McGlynn that William Bonney took the jeep, the import of the evidence that he did not drive straight down Grange Road, even with time unaccounted for, simply establishes that he took a less likely route rather than the obvious route. The defence have, in effect, asked the Court to engage in speculation as to what the cause for such a different route or unaccounted time was. A simple answer to that question could, of course, be that Jason Bonney was attempting to establish an alibi for himself. However, this Court will not engage in speculation. The Court can only ever act and consider the evidence before it.

The defence have also referred to the phone evidence before the Court in relation to Jason Bonney, pointing out that the evidence establishes that he did not use cell sites past Newbrook Avenue. The phone evidence establishes that Jason Bonney did not make any calls between 11.07 and 15.17. Therefore, no cell sites were used during that period. That does not equate with Jason Bonney not travelling past Newbrook Avenue. Again, a simple answer to that proposition is that Jason Bonney was engaged in the activity alleged by the prosecution, which one would imagine might result in him not making calls so as not to be traced. However, this is, again, speculation which the Court will not engage in. However, each of these propositions suggested by the defence are rejected by the Court and do not raise a reasonable possibility indicative of innocence.

With respect to Jason Bonney driving the BMW X5 to Saint Vincent's GAA park, the duration of the journey to The Beachcomber on the second occasion is of significance. Having regard to the ordnance survey map produced in evidence, the length of the journey from Drumnigh Woods to The Beachcomber is approximately

8 kilometres. On the second journey, departing Drumnigh Woods at 13.26, the duration of the trip is 15 minutes. On the first occasion this journey was undertaken earlier that day the journey took 28 minutes. Each journey took a departure from Grange Road down Newbrook Road. Having regard to it being a Friday lunch time when this trip was undertaken, the inevitable inference is that this second journey, in a busy area of Dublin, was undertaken at a significant speed and does not permit for the possibility of a change of driver on the way.

Indeed, the CCTV footage from Drumnigh Woods establishes that Jason Bonney was in a rush, running to his house and then departing Drumnigh Woods in the BMW at a significant pace. Accordingly, having regard to the length and duration of this journey, the Court is satisfied beyond reasonable doubt that Jason Bonney continued to be the driver of the BMW X5 from Drumnigh Woods to The Beachcomber and onward to Doneycarney Church car park, where he met up with the convoy of cars already referred to. Having regard to all of the evidence, the Court is satisfied beyond reasonable doubt that Jason Bonney remained the sole driver of the BMW throughout that day and is, therefore, satisfied beyond reasonable doubt that Jason Bonney was driving the BMW at Bella Street and at Saint Vincent's GAA park when Kevin Murray got into that BMW after the Regency attack. In making this determination, the Court has considered the movement of the pick up truck from Jason Bonney's house at Drumnigh Woods at 12.43, its passing by Trinity Credit Union in the direction away from Newbrook Avenue at 13.53 and its passing by Trinity Credit Union in the opposite direction at 14.31. As Jason Bonney did not arrive back to Drumnigh Woods until 13.18, it is not possible that Jason Bonney was the driver of this vehicle at that time. This footage simply establishes that the blue van was driven at this time and possibly was present at Newbrook Avenue when Ms McGlynn returned from the school collection with her children. However, as established in evidence, through the interviews of Jason Bonney, there were workers located at Drumnigh Woods and Newbrook Avenue on the day in question, who had access to the van in question.

The Court is further satisfied beyond reasonable doubt that Jason Bonney knew of the existence of the Hutch Criminal Organisation. Apart from his acknowledged friendship with the Hutches, he was present at the centre of operations on the 5th of February, namely Buckingham Village, when Kevin Murray and Paul Murphy were present. As already indicated, the Court is satisfied beyond reasonable doubt that the Regency attack was orchestrated by the Hutch Criminal Organisation.”

72. In conclusion, with respect to Jason Bonney, the SCC expressed itself as being satisfied beyond reasonable doubt, having regard to Jason Bonney's movements on the 5th of February, which had been set out in detail, that Jason Bonney, knowing of the existence of the Hutch Criminal Organisation, provided access to a black BMW 08 D 50847 at Saint Vincent's GAA club, intending to facilitate the commission of a serious offence by the Hutch’s. The Court therefore returned a verdict of guilty against Jason Bonney on Count No 3 on the indictment.

The SCC’s determinations in relation to Paul Murphy

73. The SCC made the following specific determinations in so far as Paul Murphy was concerned:

“the prosecution assert that the Toyota Avensis depicted in the montage of CCTV is the same Toyota Avensis throughout, that it is Paul Murphy's Toyota Avensis and that it is he who was driving it on the 5th of February. In particular, they assert that he collected one of the six hitmen from the Regency attack at Saint Vincent's GAA car park, acting in concert with the other five vehicles which then drove out of Casino Park at 14.42.

It is asserted that there are distinctive features with respect to Paul Murphy's taxi, namely that it is light in colour, the tax and insurance disc are on the left hand side of the windscreen, there are stickers above the tax and insurance discs, there are stickers on the top left back window and the wheel rims are distinctive. It is not possible to see these distinctive features on each clip of CCTV footage. However, on each occasion that a silver coloured Toyota Avensis taxi, as described by the Court from its viewing of the CCTV footage in terms of its colour, enters Bella Street as detailed above, stickers on the top left back window are clearly visible.

Equally, on each occasion that a silver coloured Toyota Avensis taxi leaves Bella Street as detailed above, the distinctive wheel rims are clearly visible. This, coupled with the admission of Paul Murphy that he was at Buckingham Street for 30 to 40 minutes on the morning of the 5th of February and that it is his vehicle which is depicted leaving Bella Street at 11.49, establishes beyond reasonable doubt that it is Paul Murphy's Toyota Avensis taxi turning into Bella Street at 10.56 and leaving at 11.49. The Court notes that during this time, Kevin Murray arrived into Bella Street at 11.23, accompanied by the tall man who brought him there.

In relation to the assertion that it is Paul Murphy's vehicle which turns into Bella Street at 12.41, Paul Murphy indicated that when he rang Neddy Hutch at 12.52 and 12.56, he remained in Buckingham Village awaiting Neddy Hutch's arrival. To be clear, Paul Murphy did not indicate that he paid two visits to Buckingham Village that morning. Rather, he gave the inconsistent account that he travelled directly there on the morning of the 5th of February, but when presented with the two phone calls to the number identified by him as Neddy Hutch's he gave the account that he rang Neddy Hutch at these times from Buckingham Village and waited for him there as instructed.

The Fitzgibbon Garda Station cell mast was used to make these calls, which is consistent with Paul Murphy being in the north inner city. This indication from Paul Murphy that he was in Buckingham Village when he made the call to Neddy Hutch and that he waited for him there, coupled with the distinctive features of the silver coloured Toyota Avensis taxi which turned into Bella Street at 12.41 and left at 12.59, establishes beyond reasonable doubt that it is Paul Murphy's Toyota Avensis taxi which is at Bella Street during this time.

The Court notes that Paul Murphy's Toyota Avensis taxi exited Bella Street at 12.59, in conjunction with a silver transit van. The Court has already found this van to be the vehicle which subsequently arrived at the Regency Hotel, carrying Kevin Murray from this location. Also, the Court notes that as Paul Murphy entered Bella Street at 12.41, a distinctive BMW X5 vehicle, which is asserted to be driven by Jason Bonney, left at 12.42.

Paul Murphy accepts that it is his vehicle and himself at the Maxol petrol station at

12.41 and it is also himself and his vehicle at the Beachcomber pub at 13.22. That vehicle pulls out from its parking space at the Beachcomber at 13.41, after a distinctive BMW X5 passes him on the Howth Road, with both vehicles turning right on to Collins Avenue. The CCTV montage then depicts at 1400 hours the same distinctive BMW X5 in the company of five cars described earlier, which views the silver saloon car as the second last car and a smaller silver saloon car as the last car, exiting Doneycarney Church car park.

The next clip, Casino Park, detailed earlier, depicts at 14.02 the same distinctive BMW X5 travelling in convoy with six cars of a particular shape and colour, including a silver Toyota Avensis taxi as the second last car and a smaller silver saloon car as the last car in that convoy, turning into Casino Park. Finally, six cars are depicted at 14.42 exiting Casino Park, including the distinctive BMW X5, a black saloon taxi, a silver Toyota Avensis taxi and three other cars of the same shape and colour as had been seen entering Casino Park at 14.02.

The presence of a silver Toyota Avensis taxi in the company of the same distinctive BMW X5 and the other four cars of the same shape and colour at Casino Park, 40 minutes apart, leads to the inescapable conclusion that that silver Toyota Avensis taxi was acting in concert with the other cars. It is beyond a mere coincidence that this similar line up of cars over a significant time gap enter and leave a residential area, particularly when three of them, the BMW X5, the black saloon taxi and the front of a black car are depicted together on CCTV footage in Saint Vincent's GAA car park.

The fact of Paul Murphy pulling out from The Beachcomber after the distinctive BMW X5 passed him on the Howth Road could, of course, be a mere coincidence if it was taken by itself. However, the Court has found that it is satisfied beyond reasonable doubt that Paul Murphy was present in Bella Street at 12.41, before a distinctive BMW X5 with the same distinctive dirt on its sides as the BMW depicted at the Beachcomber left Bella Street at 12.42. This establishes a link between the BMW X5 with the same distinctive markings at Bella Street and The Beachcomber and Paul Murphy.

This established link, together with the fact that Paul Murphy was present at Bella Street when Kevin Murray arrived and that Paul Murphy's taxi left Bella Street in conjunction with the silver transit van, which brought Kevin Murray to the Regency, discounts the possibility that it is a sheer chance that Paul Murray Murphy pulled out innocently after the distinctive BMW X5. Accordingly, the Court is satisfied beyond reasonable doubt that Paul Murphy followed the distinctive BMW X5 from The Beachcomber and that it is the first silver car out of Doneycarney Church car park after all of the dark cars exited, having regard to the position of the silver Toyota Avensis in the queue of cars at Casino Park two minutes later.

In making this determination, the Court has watched the CCTV footage carefully very many times. It is satisfied beyond reasonable doubt that another silver light coloured car does not merge with the convoy of cars which exits Doneycarney Church. Also, the Court has noted that a seventh car, a fifth black car, turns into Casino Park with the other six cars which are acting in concert. The Court is satisfied that this car innocently merged with the convoy of cars which exited Doneycarney Church car park after the fourth black car exited the car park and that it came from the approaching traffic on the Malahide Road. The Court is satisfied beyond reasonable doubt that the silver coloured Toyota Avensis taxi depicted in the CCTV footage from 13.14 is Paul Murphy's vehicle, which he is driving and remains driving throughout the afternoon. The Court is further satisfied beyond reasonable doubt that it is Paul Murphy's Toyota Avensis which exits Doneycarney Church car park and subsequently turns into and out of Casino Park travelling in convoy with the other five cars detailed.

Having regard to all of the above, the Court is satisfied beyond reasonable doubt that Paul Murphy's Toyota Avensis taxi registration number 07 D 45775 was present at Saint Vincent's GAA car park at 14.06 and that the car took one of the hitmen from Saint Vincent's. The Court is further satisfied beyond reasonable doubt that it is Paul Murphy's Toyota Avensis taxi which returned to Bella Street at

14.49 in light of the sighting of the Toyota Avensis continuing to travel towards Fairview at Kavanagh's licensed premises and the Shower Centre on the Malahide Road, the duration of the journey and having regard to the stickers on the back left of the window, which are visible as the car arrives into Bella Street and the wheel trims which are visible as the car leaves.

In light of the cumulative evidence regarding the movements of Paul Murphy's Toyota Avensis taxi, the Court is of the view that it is probable that it was Paul Murphy's Toyota Avensis taxi turning into Bella Street at 12.04 and 12.13.

However, as there is no other evidence to link it to these times and locations, the Court cannot be satisfied of this beyond reasonable doubt and has had and has not had regard to these two alleged visits to Bella Street in its determinations.

The Court has considered the issue of cloning which Paul Murphy raised in the course of voluntary interview with the guards. The Court is satisfied beyond reasonable doubt that it can discount the possibility that the car depicted in the CCTV was a cloned car at the times when the Court is satisfied beyond reasonable doubt that it was Paul Murphy's car in light of the reasoning which the Court has adopted in makes its determinations which are based on the acceptance by Paul Murphy that it was his vehicle at Bella Street at 11.49, that it was him and his vehicle at the Maxol Garage and that it was him and his vehicle at the Beachcomber.”

74. The SCC expressed itself to be satisfied beyond reasonable doubt from other evidence it had heard as to the existence of a criminal organisation known as the Hutch Criminal Organisation, and that this organisation was in existence at the time of the Regency attack. In regard to Paul Murphy’s knowledge of this criminal organisation the SCC held:

“The Court is further satisfied beyond reasonable doubt that Paul Murphy knew of the existence of the Hutch Criminal Organisation. The evidence establishes that Paul Murphy knew the Hutches. He had a significant connection to Neddy Hutch, occasionally borrowing money from him for a fee. But it is established from his interviews that he also knew Patsy Hutch and Jonathan Hutch quite well.

Furthermore, Paul Murphy was in possession of a key card to Buckingham Village, which was the centre of operations in respect of the Regency, which is established not only by the comings and goings of the various vehicles which the Court has already set out, but is also established by reference to the audio surveillance recording of the 7th of March from Jonathan Dowdall's vehicle.”

75. The SCC rejected Paul Murphy’s evidence with respect to the key card which had been found in his vehicle, stating:

“The Court does not accept the story rehearsed by Paul Murphy about a passenger accidently leaving this key card in his taxi three days earlier and, by chance, him trying to use it at the gate of Buckingham Village on the date of the Regency. His possession of the key card and its use on the day of the Regency was clearly a planned event. This is a key card which is linked to Patsy Hutch by virtue of it being in numerical sequence to a card found in Patsy Hutch's jacket at his home.”

76. In conclusion, with respect to Paul Murphy, the SCC expressed itself as being satisfied beyond reasonable doubt that the Regency attack was orchestrated by the Hutch Criminal Organisation, and of further being satisfied beyond reasonable doubt that having regard to his movements on the 5th of February, Paul Murphy, knowing of the existence of the Hutch Criminal Organisation, provided access to his Toyota Avensis taxi at Saint Vincent's GAA club, intending to facilitate the commission of a serious offence by the Hutch’s.

Accordingly, the Court found Paul Murphy guilty on Count No 4 on the indictment.

Grounds of Appeal in Common

Complaints about the admission into evidence of records of interviews before arrest

77. These complaints are to be found in ground of appeal no 1 on behalf of the first named appellant and in grounds of appeal no’s 2, 3, 4 and 5, on behalf of the second named appellant.

78. On the 20th of February 2016, the BMW jeep was seized from the first named appellant by Gardaí, and a subsequent forensic examination found no evidence connecting either it or the first named appellant to the Regency shooting.

79. On the 21st of February, two detectives (D/Gda Alan Crummey and D/Gda James Duffy)

were tasked to call to the first named appellant's home and question him about the vehicle. The first named appellant, who was not under arrest, did not give a statement, but agreed to talk to the detectives. An uncautioned but otherwise formal interview (“the uncautioned interview”) ensued. D/Gda Crummey asked whether the first named appellant would have any objection if a memo was kept of the interview, to which the first named appellant indicated that he did not. A memo was kept of this interview, at the

conclusion of which the first named appellant was asked whether he was happy that the memo was an accurate reflection of their conversation. He replied that he was.

However, when asked to sign the memo to reflect this he said, "No not particularly." A copy of the memo was supplied to the first named appellant.

80. In this interview, the first named appellant gave an exculpatory account of his movements on the 5th of February 2016. He said that he had been conducting building works at a property at 47 Newbrook Avenue and had made three to five journeys back and forth between there and his home driving both the BMW jeep and a Ford Transit pickup truck.

81. In the course of a voir dire challenging the admissibility of this interview at trial, D/Gda Crummey acknowledged that the job sheet he had been given prior to the interview expressly instructed him to caution the first named appellant prior to questioning him. He also agreed that he had attended several case conferences in the preceding two weeks and was aware that the vehicle had been seized from the first named appellant the previous day. It was contended that in circumstances where the first named appellant was a de facto suspect and person of interest at the time of the interview, he ought to have been cautioned and that for the SCC to admit the fruits of the interview in circumstances where the first named appellant had not been cautioned would be unfair.

82. D/Gda Crummey was also tasked to interview and take a statement from the second named appellant, again at a time when he was not under arrest, which he did on the 22nd of February 2016. Again, the interview was uncautioned. At the conclusion of the interview, the statement was read over to the second named appellant, he was asked was it correct and whether he wanted to make any changes or additions to it, to which he indicated that he did not. He was invited to sign the statement, which he did. The admissibility of this statement was also challenged at the trial. Again, during the voir dire challenging the admissibility of this statement, D/Gda Crummey accepted that the job sheet he had been given contained a direction to interview the second named appellant under caution. Further, he accepted that he was aware at the time that a D/Gda Armstrong had seized the second named appellant’s vehicle, i.e., a silver Avensis used by him as a taxi, and that he had previously spoken to the second named appellant’s employer Paul Brady.

83. D/Gda Crummey claimed in evidence to have misread the job sheets relating to both appellants, that he had made a mistake in doing so and on that account did not caution either of them. He indicated that from his perspective, in seeking to speak with the appellants, these were fact finding missions and he did not consider either Mr. Bonney or Mr. Murphy to be a suspect at the time of his initial interactions with them.

84. As in the case of his co-accused, it was again contended on behalf of the second named appellant that in circumstances where he had been a de facto suspect and person of interest at the time of the interview, he ought to have been cautioned before any statement was taken from him and that for the SCC to admit the statement in the circumstances would be unfair.

85. The applications to exclude this evidence were opposed by the prosecution, who pointed to the fact that the appellants had not been under arrest, and that while it was true to say they were persons of interest they were no more than that at that point in time. No

decision had been made to arrest them, much less charge them. Their status was that of witnesses and there was no legal requirement to caution them. Moreover, anything said by the appellants, respectively, had in any event been exculpatory and there was accordingly no unfairness.

86. The SCC was referred to various authorities, including DPP v. Shaw [1982] I.R. 1; DPP v.

Breen 1995 WJSC-CCA 2054; DPP v. O'Reilly [2009] IECCA 18; DPP v. David O'Loughlin [2021] IECCA 107 and DPP v. Conroy [2021] IESC 48.

87. The SCC ruled:

“Every person has a right to silence, it is a cornerstone of our criminal law system.

One has a right not to incriminate oneself. However, not everyone will seek to avail of that right and may determine to speak to the guards on a voluntary basis.

Furthermore, guards are entitled to investigate crimes and speak to people and potential suspects. [Rules 1 and 2 of the Judges Rules then quoted] Accordingly, a breach of the Judges Rules does not arise on the evidence nor indeed is this suggested by the defence. Rather what is submitted is that the statement and the interview were obtained in circumstances of unfairness and for that reason should be excluded.

[The Ruling then references in detail the caselaw relied upon in argument, and quotes passages from the Shaw, O’Reilly and Breen cases, respectively, before continuing]

Insofar as this Court is asked to hold that the statement in question should not have been admitted because there was some want of basic fairness, the Court is of the view that there are no objective grounds for concluding, having regard to the evidence tendered at the trial, that there was any want of basic fairness so as to require it to be excluded. To say that the mere failure to give a caution is a want of fairness is to misconceive the principle involved. Since, as already pointed out, apart from the circumstances to which the Judges Rules apply, the law does not require a caution to be administered to a person being interviewed in the ordinary way, even if a suspect, unless there are other attendant factors concerning the manner or circumstance, in which it was obtained, which were such as to require a caution to be given in order to respect such basic fair procedures. Even then all the factors referred to in Breen, including those cited from the judgment in Shaw must be taken into account.

Continuing then with our ruling, the Supreme Court in DPP v. Conroy recently affirmed that when a person is not in custody, nor has a decision to charge that person been made, an obligation to caution the person does not arise. Mr Justice Charleton stated at page 18 of the judgment, ‘When in custody or where a charge is decided on outside custody, there has to be a self-incrimination warning. But not when a potential witness or potential suspect is at liberty.’

In that case, the Supreme Court was of the opinion that a caution should have been administered in circumstances where the accused was in de facto custody and where a decision to charge the accused should have arisen on the facts. Neither of those instances apply in the instant case, neither accused was in de facto custody, nor on the facts as then known to the investigation team should either man have been charged at that stage. Indeed, neither accused makes such an argument. Having regard to the authorities it appears to this Court that the question as to whether a voluntary statement has been obtained in a fundamentally unfair manner, such that any utterance obtained should not be admitted into evidence is a question which turns on the particular facts of each case. In the instant matter there is no doubt but that the statement given by Mr Murphy and the interview conducted with Mr Bonney were voluntary and that both men consented to engage in the process.

In addition, neither the statement nor the memoranda of the interview contain any utterance in the nature of a confession such as in Breen. Although the prosecution will assert in due course that there is an evidential significance to each accused account of their movements for the 5th of February. Both the statement from Mr Murphy and the memoranda of Mr Bonney simply set out their account of their movements on the day in question, and in fact, are exculpatory in their terms.

Furthermore, the statement and the memoranda were read over to each accused. They were asked were the documents a correct reflection of what had been said and offered the opportunity to make additions or alterations. Neither accused took the opportunity to make any additions or alterations. Mr Murphy signed the statement which he had given, whereas Mr Bonney did not. However, Mr Bonney indicated that he was happy with the document, that it was an accurate account of what had been discussed.

Mr Fitzgerald submits that there was a change in attitude by Mr Bonney reflected by his not signing. The Court does not accept this proposition. At the outset of the interview, Mr Bonney indicated that he was not prepared to give a statement. However, he was prepared to speak to the guards and was prepared to have a memo kept of what had been discussed. The fact that he ultimately did not sign this record is reflective of the fact that he did not agree to give a statement in the first place. Most telling, however, in terms of whether the accused are of the view that the statement and the memoranda of interview were taken in some circumstance of unfairness, is the fact that when they were both subsequently in police custody, each accused refers back to the earlier conversation which he had had with Detective Garda Crummey, without taking any objection to the process or without resiling from what he had said in his statement or memoranda of interview. These are on occasions when each had been cautioned, had had the benefit of legal advice and had his solicitor present.

[Specific examples from the evidence are then referenced]

In all of these circumstances, the Court fails to see how it can be so fundamentally unfair within the meaning of DPP v. Shaw that the accused were not cautioned.

Whether direction from the investigating team was to caution the accused and whilst Detective Garda Crummey clearly made an error in not following that direction, that in itself, does not establish any unfairness for the accused. This question must be determined in terms of the effect on the accused. In light of each of the accused seeking to rely on the terms of what they earlier had said to the guards, having obtained legal advice and having been then cautioned, the assertion of a lack of fairness is simply not made out.

Accordingly, the Court is satisfied beyond reasonable doubt that the utterances were not obtained in circumstances of unfairness, such as would necessitate the utterances not being admitted into evidence. And therefore, will admit into evidence the statement of Mr Murphy and the memoranda of interview with Mr Bonney first conducted by Detective Garda Crummey in his interactions with each of them.”

88. In written submissions to this Court the appellants have each contended, in substance, that the SCC’s ruling was wrong in application of the law, and against the weight of the evidence, in that they say that it failed to recognise and take account of the fact that D/Gda Crummey’s assertion of mistakenly misreading the job sheets was not capable of being viewed as an excusable error or inadvertence, but rather could only properly be characterised as gross negligence and/or recklessness lifting what occurred outside of the realm of excuseability, and that it was indicative instead of a lack of serious engagement on D/Gda Crummey’s part with the duties owed and legal requirements to be fulfilled by him. It was said that while the SCC had noted in discussing the Breen case that “[t]here must be something more in the particular circumstances of the case to render it necessary that such a caution be given”, it was contended that D/Gda Crummey’s gross negligence and recklessness provided the “something more” that was required.

89. We have carefully considered the evidence before the trial court and the SCC’s ruling on the admissibility objections. There was properly in our view no finding that D/Gda Crummey’s error amounted to gross negligence or recklessness, as we do not consider that the evidence such as it was could have supported such a finding. In our assessment the SCC’s appreciation of the applicable legal principles, and its application of those legal principles to the facts as found by it, was correct and discloses no error. Moreover, the SCC’s analysis on this issue is cogent and compelling. For completeness, we should further say that in so far as the first named appellant’s submissions criticize the SCC for, it was suggested, “remarkably” failing to engage with submissions made to them based on the UK’s Police and Criminal Evidence Act (PACE) Code C, we reject such criticism as misconceived in circumstances where PACE Code C does not form part of Irish law.

90. We therefore dismiss ground of appeal no 1 on behalf of the first named appellant and grounds of appeal no’s 2, 3, 4 and 5, on behalf of the second named appellant.

Complaints concerning the lawfulness of their respective arrests

91. These complaints are to be found in ground of appeal no 2 on behalf of the first named appellant and in grounds of appeal no’s 9, 10, 11 & 12, on behalf of the second named appellant.

92. The complaint in ground of appeal no 2 on behalf of the first named appellant is premised on this Court being disposed to uphold his ground of appeal no 1, which it has not done.

He has contended in submissions that:

“the uncautioned interview provided investigating Gardai with an invaluable, indeed indispensable bridgehead from which to build their case against the [first named] appellant. It is further submitted that this 'bridgehead' may very well have never materialised had the [first named] appellant been cautioned as the leadership of the Regency investigation had directed.

It is submitted that as a clear chain of causation exists between the uncautioned interview and the arrest and detention of the Appellant on 27 May 2016, the unfairness of the uncautioned interview contaminates the arrest of the [first named] appellant.”

93. In circumstances where we have rejected the contention that the evidence of Mr.

Bonney’s uncautioned interview should not have been admitted, we dismiss the first named appellant’s ground of appeal no 2 as being misconceived.

94. On behalf of the second named appellant, it was complained that the trial court erred in deeming that his arrest was lawful. The wording used by Detective Sergeant Hanley, who gave evidence of the arrest, did not, it was suggested, contain an offence as prescribed by law. The evidence given at trial was that the second named appellant was arrested “on suspicion of having been involved in the murder with a firearm of Mr David Byrne”.1

95. When this objection was raised at trial, the SCC ruled:

“The argument made by the defence in this regard is a superficial one. Clearly more than one person was involved in the murder of David Byrne, the CCTV establishes this. A common design existed to affect the murder of someone that day. The use of the word, "Involved", simply reflects that fact. It is clear that Detective Sergeant Hanley subjectively believed that Paul Murphy committed the offence of murder by being involved in a joint enterprise. Accordingly, describing the offence for which Mr Murphy was being arrested as being involved in the

Transcript 3 November 2022, page 22 murder of David Byrne is not a misnomer or an inaccurate description, or an arrest effected for an offence unknown to law.

Detective Sergeant Hanley arrested Mr Murphy for the offence of murder of David Byrne. Indeed, the fact that Detective Sergeant Hanley arrested Mr Murphy for the offence of murder is reflected in his subsequent conversation with Superintendent Murphy. The Court is satisfied beyond reasonable doubt that Detective Sergeant Hanley arrested Mr Murphy for the offence of murder with a firearm. It is further satisfied that section 50 was the appropriate detaining provision. The Court is also satisfied that Mr Murphy understood why he was being detained, in light of his acknowledgement of that at the commencement of his first interview in detention.”

96. It was submitted to this Court on behalf of the second named appellant that the trial court erred, in its judgment, by interpreting the wording of the arrest to be reflective of ‘common design’ and not apportioning the ordinary meaning to the words used. It had been outlined to the Court that a number of interpretations could be given to the above wording and could pertain to a number of offences such as conspiracy, murder, accessory after the fact etc. It was submitted that the importance of using clear language in an arrest is to afford a statutory footing for the arrest. In essence, a person must be arrested precisely for an offence known to law. There is no offence of being involved in murder.

97. It was submitted to the Court that if a person was arrested for being an accessory after the fact in relation to murder, they could not be detained for murder under s. 50 of the Criminal Justice Act 2007, as was the case for the second named appellant.

98. We were referred to s. 7(2) of the Criminal Law Act 1997 which states “[w]here a person has committed an arrestable offence, any other person who, knowing or believing him or her to be guilty of the offence or some other arrestable offence, does without reasonable excuse any act with intent to impede his or her apprehension or prosecution, shall be guilty of an offence”. It was submitted that based on the wording used on the appellant’s arrest, it is conceivable that he was arrested for accessory after the fact and not murder.

Therefore, as the wording used for the arrest of the appellant could, it was said, apply to a wide range of offences it was further submitted that there was no statutory basis to ground the second named appellant’s arrest and subsequent detention. It was submitted that an arrest is a breach of a fundamental right i.e., liberty and it must be strictly established to be permitted and correct.

99. The Court was then referred to the well-known authority of Christie v. Leachinsky [1947] A.C. 573, which was adopted in Irish law by Re Ó Laighléis [1960] I.R. 93, as setting out the requirements for a lawful arrest.

100. It was submitted that an arrest of a person is lawful only if the person knows why they have been arrested. It was submitted to the Court, that the use of language stating “involvement in murder” did not provide the second named appellant with any clarity as to what he was being arrested for and that the Court had erred in its ruling that the second named appellant understood the reason for his arrest.

101. Counsel for the respondent has argued in response that the SCC’s ruling deals with the issues raised by the second named appellant and there is no error in law. It was submitted that indeed, as noted by the trial court, if there was any doubt as to the knowledge on the part of this appellant it is clear he understood exactly what he was arrested for by reference to the answer given by him to the first question he is asked at the outset of his first interview in custody at Ballymun Garda Station on the 30th of May 2016, when he confirmed that he understood that he had been arrested for the murder of David Byrne.

102. We agree with the submissions on behalf of the respondent and find no error on the part of the trial court on this issue. We are satisfied that the SCC was correct in its determination that the appellant understood the reason for his arrest, and that his arrest was lawful.

103. In the circumstances we reject and dismiss grounds of appeal no’s 9, 10, 11 & 12, on behalf of the second named appellant.

Complaints in relation to the lawfulness of detention

104. These complaints are to be found in ground of appeal no 3 on behalf of the first named appellant and in grounds of appeal no’s 13, 14 & 15, on behalf of the second named appellant. Ground of appeal no 3 on behalf of the first named appellant was grouped with his grounds of appeal no’s 4 and 5, respectively, concerning the admissibility, in his case, of memoranda of interviews with the first named appellant on the 27th of May 2016 at Ballymun Garda Station. Grounds of appeal no’s 4 and 5, which are unique to the first named appellant, will be dealt with separately later in this judgment.

105. Both appellants complain that the information provided to the member in charge of the Garda station to which they were each respectively taken by the gardaí who had arrested them, was in some respects incorrect, alternatively it was insufficient for the purposes of the member in charge, in consequence of which it is said they were not lawfully detained.

106. In the case of the first named appellant, it is suggested that the detention was based on an incorrect summary of the case against him, D/Sgt O’Toole being alleged to have materially misled Sgt Collins by misstating the content and strength of the CCTV evidence gathered by the investigation. It was submitted that D/Sgt O'Toole's assertion to Sgt Collins that the first named appellant could “be seen with” the BMW jeep at a variety of locations that the first named appellant had not accounted for in the uncautioned interview was misleading, as in fact the first named appellant was only visible on CCTV at two locations (Drumnigh Wood and Eddie's Fuels), neither of which were contentious or materially probative.

107. It was submitted that D/Sgt O'Toole also inaccurately described the ownership of the BMW jeep by stating that the first named appellant himself was its owner, rather than a firm linked to his father.

108. Further, it was submitted that Sgt Collins himself failed to take sufficient steps to satisfy himself that Mr. Bonney's detention was necessary to advance the investigation. In failing to do so, he failed to discharge his obligation not to act as a mere “rubber stamp” 2 for the arresting members.

109. D/Sgt OToole acknowledged under cross examination that he had told Sgt Collins that the first named appellant was the owner of the BMW jeep even though he knew that it was registered to Bonney Construction, and further acknowledged that he could not exclude the possibility that he had given Sgt Collins the impression that the first named appellant had been visible on CCTV at St Vincent's GAA club car park.

110. For his part, Sgt Collins had acknowledged that, per his contemporaneous notes, he had formed the impression that the first named appellant had been seen with the BMW jeep at several “unexplained locations”.

111. The complaint of the second named appellant is premised on alleged insufficiency of information provided to the member in charge. The provider of the information in his case, an Inspector McGovern, was cross-examined by counsel for that appellant as to why he did not query whether that appellant was the sole driver of the Avensis vehicle.

Inspector McGovern told the court that “I took that at face value”. It was submitted that this showed that Inspector McGovern did not take steps to satisfy himself that a detention was required under s. 50 of the Criminal Justice Act 2007. It was said that establishing whether the second named appellant was the sole driver of the vehicle was relevant to establishing whether there was strong evidence to support a detention.

112. We were referred by counsel for the second named appellant to People (DPP) v. Birney [2006] IECCA 58, as providing support for the submission made as to necessity for the provision of sufficient information to a member in charge to enable him/her to carry out their function. The Court of Criminal Appeal had emphasized in Birney that:

“The role of the member in charge involves both a subjective and objective element and subjectively he must believe that the applicant’s detention is necessary and objectively must be satisfied that there are reasonable grounds for his belief.”

113. The respondent does not accept that either that misleading information was provided to the member in charge in the case of the first named appellant or that insufficient information was provided in either case. Her counsel has submitted that D/Sgt O’Toole gave a detailed outline of the grounds for seeking a detention which were supported by a number of CCTV stills that were produced to the member in charge and reviewed. In regard to the complaint of the second named appellant, counsel for the respondent, quoting extensively from the transcript in his written submissions, further contended that a significant amount of detailed information setting out a clear and cogent basis for

See below re The People (DPP) v Birney [2006] IECCA 58 suspecting that the second named appellant had been involved in the murder of David Byrne was advanced.

114. It was further submitted that the very specific complaint advanced by that appellant, namely that Inspector McGovern had, as described, stated “I took it at face value”, was taken out of context. The actual context was then set out. The second named appellant’s counsel, in cross examining Inspector McGovern, was probing why he, as Member in Charge, had not specifically asked when or how the second named appellant had admitted to being the sole driver of the vehicle in question, leading to the following exchanges:

“Q. Well, Inspector, does that mean that you ought to be questioning and ask yourself is there something slightly unusual about that line, where a man has come in to be arrested and the officer is telling you that he has previously admitted to being the sole driver? Should that not raise a query in your mind?

A. No, if it's -- he is the registered owner of that taxi and that's my note from earlier on. He is the registered owner of a gold green Toyota Avensis taxi and then he told me following on -- or further on down the conversation, he told me that Paul Murphy admitted to being the sole driver of his taxi on this date.

Q. Yes, but here's the question, how did he admit it to him?

A. I don't know. I'm not involved in the investigation. I'm not -- I don't have any part or role in the investigation. I never did. I'm an independent person.

Q. Yes. I thought we had agreed, Inspector, that the role of the member in charge is to apply one's own mind to what one is being told and where you are being told this, which is somewhat unusual, that a man who is being presented for arrest has already admitted something to the guards, would it not require you to ask and determine how did that come about, how -- where was this admission? Has he been in custody before? So, what did you do about that? What did do -- what did you think when you heard that this man had previously admitted something to the guards?

A. Yes. Well, as in my -- when I heard that and when I done that, I took that at face value, yes, that co have been asked at any stage prior to his arrest whether he was the sole driver of that taxi or not and I didn't put any weight to it that I should have enquired more. I took that as what was told to me at the time.

Q. Yes, but the question is why didn't you? Why didn't you ask -- you've just said to the Court here

A. Yes.”

[emphasis added]

115. It was submitted that there was no question of Inspector McGovern simply engaging in a form of rubber stamping. Rather, considerable details were advanced to him including the playing of CCTV to back up assertions being made as to the basis for the suspicion in relation to the second named appellant. It was further submitted that while the Member in Charge must satisfy himself or herself that a detention is necessary for the proper investigation of an offence, there is no requirement or obligation in law on a Member in Charge to conduct his or her own investigation. A Member in Charge is entitled to act on the basis of the information received from the arresting member and may form the belief that the detention is necessary in reliance on what he is told. It was submitted that to suggest that a Member in Charge must conduct a form of interrogation of, or parallel investigation into, the material and information provided by the arresting member before he/she can effect a lawful detention is an assertion that is unfounded in law.

116. The SCC ruled in regard to the issue of alleged misleading raised by the first named appellant, as follows:

“In cross examination when asked about this issue, Sergeant Collins stated, "I was told that the jeep was tracked from his home in convoy with other people, with other vehicles which gardaí believed were involved in the murder to St Vincent's Club." When specifically asked did he recall being told that Mr Bonney was in the jeep at any point, Sergeant Collins stated, "I don't actually recall that." He further stated that he based his decision on all of the information together, that the jeep was registered to Mr Bonney and then was in convoy, "So I based it on all the information put together."

Sergeant Collins recalled that the conversation was that there was CCTV footage of Mr Bonney at these locations, and he can be seen with his jeep rather than in his jeep. He didn't believe that there was discussion of CCTV showing Mr Bonney getting into his jeep. He went further to state, "It wasn't mentioned to me about actually seeing him in the jeep." Sergeant Collins did not accept in evidence that he was told that there was CCTV evidence which showed Mr Bonney in his jeep at specific locations. Accordingly, the error which is asserted by Mr Bonney has not in fact been established.

The height of Sergeant Collins' evidence is that he was told that Mr Bonney was with his jeep in locations unaccounted for. In light of the fact that Mr Bonney was seen getting into his jeep in Drumnigh Wood and this was conveyed by Detective Garda O'Toole to Sergeant Collins, this was not an inaccurate account of the facts.

The Court is of the view that on the basis of the information as a whole which the arresting member had and has indicated that he grounded his decision on, he had reasonable grounds to believe that the accused detention was necessary for the proper investigation of the offence for which he had been arrested. And therefore, the Court is satisfied beyond reasonable doubt that the decision to detain Mr Bonney pursuant to section 50 by the member in charge was a lawful decision to detain.”

117. As to the controversies raised on behalf of the second named appellant, the SCC further ruled:

“With respect then to the argument made in relation to the decision to detain by Inspector McGovern, then Sergeant McGovern. It is submitted that the member in charge, Inspector McGovern, did not properly exercise his decision to detain pursuant to section 50, in that he did not probe the details which he was given, but rather accepted the information at face value. Reliance is placed on DPP v. Bernie in this regard. The difficulty with the defence submission is that it is not asserted that there was any factual inaccuracy in the details provided to Inspector McGovern.

The argument is simply that the member in charge were should have probed the details. While the Bernie case found that the member in charge in that case had not acted unlawfully in examining the material on which the arrest was based, it did not establish that there was a requirement for a member in charge to conduct an investigation. On the basis of the information which Inspector McGovern received in relation to the arresting member's suspicion of Mr Murphy, it was open to him to form the belief that Mr Murphy's arrest was necessary for the proper investigation of the offence in which respect of which he had been arrested. There was no obligation on Inspector McGovern to conduct a mini investigation himself.

Accordingly, the Court is satisfied beyond reasonable doubt that the decision of Inspector McGovern to detain Mr Murphy was lawful.”

118. We are satisfied that the SCC fully engaged with the arguments that were made by both appellants as to the alleged unlawfulness of their respective detentions by the relevant Members in Charge, and that the SCC was right to reject them. The trial court’s analysis was cogent and succinct in each case and exhibits no error.

119. In the circumstances we reject and dismiss ground of appeal no 3 on behalf of the first named appellant and grounds of appeal no’s 13, 14 & 15, on behalf of the second named appellant.

Rolled up complaints as to the safety of the verdicts

120. These are to be found in ground of appeal no 8, on behalf of the first named appellant, and in ground of appeal no 38 on behalf of the second named appellant. The complaints made by the first named appellant are to the effect that cumulatively the matters of which individual and specific complaint was made rendered his trial unsatisfactory and the verdict against him unsafe. The complaints made by the second named appellant are generic and non-specific, and are to the effect that the verdicts are unsafe due to unspecified errors of law, or of fact, or involving a mixture of law and fact.

121. In circumstances where the Court has indicated at the outset of this judgment that it has concluded that both appeals must be dismissed, it is convenient to say at this point that not only have we rejected every individual specific complaint made by the appellants as not being made out, alternatively as not being of such significance as to require our intervention, we have also concluded that no combination of individual specific matters complained, might otherwise cumulatively have done so. Neither do we recognise any other infirmity in how the appellants were tried. It is clear to us that their respective trials were satisfactory and that their verdicts are safe. Accordingly, we have also rejected and dismiss ground of appeal no 8, on behalf of the first named appellant, and ground of appeal no 38 on behalf of the second named appellant.

Grounds of Appeal Unique to the First Named Appellant

Complaints in relation to the admissibility of memoranda of interviews on the 27th of May 2016

122. These complaints are to be found in grounds of appeal no’s 4 and 5, on behalf of the first named appellant.

123. They are to the effect that the evidence in question should not have been admitted because, it was contended, this appellant had been in unlawful detention at the time this interview was conducted because, per ground of appeal no 3, the Member in Charge had acted on an incorrect summary of the case against him in detaining him. Alternatively, it was in any case unfair in all the circumstances to admit this evidence.

124. The Court having rejected ground of appeal no 3, the premise underpinning ground of appeal no 4, i.e., that this appellant was in unlawful detention, falls away. As regards ground of appeal no 5, in the absence of any other specific allegation of misconduct by the interviewers, procedural irregularity, oppression or inducement, or breach of some legal or fundamental right of the subject person, we can see no unfairness per se in the admission of memoranda of interviews conducted while the subject person was in lawful detention.

125. Accordingly, we reject and dismiss grounds of appeal no’s 4 and 5, on behalf of the first named appellant.

Complaints concerning treatment of defence witnesses, and the finding that the appellant was driving the suspect BMW at material times

126. These complaints are to be found in grounds of appeal no’s 6 and 7 on behalf of the first named appellant, and were grouped together in submissions. In ground no 6 it is complained that the SCC erred in fact and law in its treatment of the evidence of witnesses called on behalf of the defence, one of whom was an alibi witness. Further, that the SCC failed to have any or any adequate regard to this evidence and, in particular, failed to approach this evidence on the grounds that it should be preferred to the evidence of a rebuttal witness called by the respondent if it could reasonably be true. In ground no 7 it is complained that the SCC erred in fact and in law in finding that the appellant was driving the suspect BMW vehicle at the material times, and that he did so with an intention to facilitate the commission of a serious offence in circumstances where there was no evidence to support any such conclusion.

The first named appellant’s submissions

127. In written submissions counsel for the first named appellant contends that the totality of the evidence presented by the respondent was not sufficient to establish the prosecution case beyond reasonable doubt. It was submitted that the ultimate verdict of the SCC was perverse and should not be allowed to stand by reason of the evidence adduced at trial.

128. Counsel accepted the well-established principle that an appellate court should not substitute its own view of the facts for that of the trier of fact and that a verdict can only be set aside in exceptional cases. It was submitted that in the present case, however, the manner in which the trial court made its decision amounted to an error of law as opposed to one of fact.

129. It was submitted that the findings of fact to which grounds of appeal no’s 6 and 7 pertain were unsustainable on the basis of the evidence that was before the SCC. It is further submitted that the SCC fell into error by drawing speculative and unsustainable inferences against the first named appellant from the evidence.

130. Counsel further cited the well settled principle of law that where two views of the evidence are possible, the view that is most favourable to the accused must be taken, unless the tribunal of fact is satisfied of the correctness of the other view, beyond reasonable doubt. It was submitted that the SCC failed to view the evidence called by both sides through this prism.

131. In regard to the evidence of Ms. McGlynn, it was urged upon us that the SCC's findings at page 36 lines 6-16 of the judgment, to the effect that the timing of her first meeting with Jason Bonney did not align with the time that the BMW jeep is shown on CCTV, attached undue significance to this minor discrepancy, and overlooked the much more plausible possibility that she may simply have misremembered the precise times of an interaction that had happened more than six years previously.

132. It was also submitted that the SCC’s conclusion that it was “bizarre” that Ms. McGlynn had not come forward earlier wholly failed to take account of a readily appreciable reluctance to become involved in a high-profile murder trial reputedly involving organised criminal groupings particularly where, as Ms. McGlynn stated in evidence, she was a foster parent to children in care.

133. Counsel further submitted that even if Ms. McGlynn's evidence were to be discounted on account of her relationship with the first named appellant, the tribunal of fact was still left with the evidence of Mr. Tyrrell, who was anything but a friend of Jason Bonney and his father. It was suggested that this evidence was backed up by a CCTV clip showing the BMW jeep travelling behind Mr. Tyrrell’s car on Gracefield Road and passing it by as Mr.

Tyrrell returned home at 14:48 on the day of the shooting.

134. Further, it is contended on behalf of the first named appellant that the SCC made the following errors in its assessment of the facts, and the manner in which it assessed those facts:

i. Comments by the SCC questioning how Mr Tyrrell came into contact with the first named appellant's solicitor were wholly speculative;

ii. The SCC erred in not averting to the possibility that Mr Byrne's comment that he had “no relationship” with his brother in law, the appellant, was indicative of animosity existing between the pair in considering his evidence against him;

iii. The SCC’s finding that the difference in journey time between Drumnigh Wood and The Beachcomber pub gave rise to an “inevitable inference” that there had not been time for a change of driver on the second journey failed to take account of Ms McGlynn's evidence that she had spent time with the first named appellant and his father during the first journey, and also that the first named appellant stopped at Eddie's Fuels;

iv. With respect to the second journey, the SCC did not cite any independent basis for its commentary on the volume of Friday lunchtime traffic on the route taken by the first named appellant, a matter on which the respondent had called no evidence.

135. It was further submitted that even if the evidence of both defence witnesses was to be discounted, the CCTV footage on its own simply could not support the appellant's guilt beyond a reasonable doubt.

136. We were referred to the well-known authority of The People (DPP) v. Cumberton, [2020] IECA 136 as to potential significance, or otherwise, of circumstantial evidence in a case.

137. Counsel for the first named appellant contended that whilst it is accepted that each strand of circumstantial evidence can be joined with others to establish guilt, each strand, however, must be capable of supporting its own weight beyond a reasonable doubt. If this were not the position, a verdict would be rendered on the basis of suppositions and nothing that independently or cumulatively reached the threshold of beyond reasonable doubt.

138. It was accordingly submitted that the SCC had erred in characterising the defence's submissions with respect to the Newbrook Road detours as amounting to an “invitation to speculate” and that this represented a fundamental misunderstanding as to where the burden of proof actually lay.

139. It was further submitted that in finding that there was no reasonably possible explanation for the detours via Newbrook Road consistent with Jason Bonney’s innocence, the SCC went beyond the evidence before it.

140. Counsel further submitted that the same could be said of the SCC’s findings that the speed at which the second journey was conducted led to an inescapable conclusion that a change of driver could not have occurred at Newbrook Avenue and that the only reasonably possible interpretation of the first named appellant's mobile phone data was that he had turned it off whilst south of Newbrook Avenue. It was urged upon us that there was no evidence to support either finding.

141. It was further submitted that in discarding any plausible alternative, the SCC deprived the first named appellant of his fundamental entitlement to the benefit of the doubt.

Excessive reliance was placed upon mere supposition to support the contention that this appellant was the driver/occupant of the BMW jeep at all relevant times. This, it was submitted, fell far short of the burden of proof required to convict.

142. Finally, it is submitted that the SCC had also erred in the manner in which it assessed a montage of CCTV footage played by the defence concerning the movements of the first named appellant's blue Ford Transit flatbed truck. This montage included several clips showing the truck at Drumnigh Wood, leaving the estate at 12:43. The final pair of clips in the montage showed the truck passing Trinity Credit Union on Newbrook Road. The first of these clips showed the truck travelling away from Newbrook Avenue at 13:53. The second showed it returning in the opposite direction at 14:31. These two clips were introduced to back up Ms. McGlynn's account that the first named appellant had parked the truck in front of her driveway whilst she was making the run to the school bus.

143. At page 41 lines 1-7 of the judgment, the Special Criminal Court held inter alia:

“As Jason Bonney did not arrive back to Drumnigh Woods until 13.18, it is not possible that Jason Bonney was the driver of (the truck) at that time.”

144. It was contended on behalf of this appellant that this represents a fundamental misunderstanding of the defence case with respect to the truck. The defence did not introduce this footage in order to show that the appellant was driving the truck at Drumnigh Wood at 12:43, but simply to demonstrate that it was the same truck as that shown passing the credit union on Newbrook Road later in the afternoon in a manner consistent with the account of Ms. McGlynn.

145. Counsel for the first named appellant submitted that in discarding any plausible alternative, the SCC deprived this appellant of his fundamental entitlement to the benefit of the doubt. It was said that excessive reliance was placed upon mere supposition to support the contention that Jason Bonney was the driver/occupant of the BMW jeep at all relevant times.

The respondent’s submissions

146. In replying submissions, counsel for the respondent rejected any suggestion that the verdict of the SCC was perverse, submitting that there was ample evidence to support the SCC’s findings and conclusions, and that in the circumstances the perversity contention had no basis in law.

147. It was submitted that the SCC made no error in law or in fact in its determination as to the veracity of the two defence witnesses called on behalf of Jason Bonney in the trial and the assertion in ground 6 of this appellant’s grounds of appeal that this evidence ought to have been “preferred” to that of the evidence of rebuttal of Paul Byrne is misplaced when considered in the context of all the surrounding evidence.

148. The respondent further submitted that the assessment of credibility and reliability of witnesses and evidence are matters solely for the province of the triers of fact in a criminal trial, in this instance the judges of the SCC, and who were best placed to engage not only with the witness testimony during the trial, but also by reference to the testimony of others and real evidence including CCTV evidence capable of providing support for certain surrounding islands of fact and details pertaining to same. Further the submission of the first named appellant that the Court “fell into error by drawing speculative and unsustainable inferences against the appellant” was not borne out in any way by the judgment of the court.

149. We were asked to note that in The People (Director of Public Prosecutions) v. Collins 2002 WJSC-CCA 1915, the Court of Criminal Appeal observed that “the assessment of the credibility of the witness and the weight to be attached to such evidence is manifestly within the province of a jury in a criminal trial”. Further the conclusions reached by the SCC on the issue of each of this appellant’s witnesses were reasoned and rooted in the evidence given by these witnesses. The SCC had heard the evidence and was entitled to weigh it.

150. Counsel for the respondent submitted that the first named appellant’s assertion that the verdict of the SCC in respect of this appellant was perverse was wholly misplaced. In circumstances where the trial took place in the SCC, the verdict in respect of this appellant was accompanied by a considered and comprehensive statement of the reasons upon which the verdict was based and an assessment of each strand of evidence against the defendant concerned. The SCC had made specific reference to the legal principles underpinning all criminal trials including trials before the SCC, and had expressly stated that the Court would be “assiduous in its duty” to apply these fundamental legal principles to the case before it. The transcript of the judgment of the trial court ran to 68 pages and, it was submitted, had included as is required a clear and comprehensive assessment of its findings in respect of the first named appellant and a detailed and reasoned basis for his conviction.3

151. It was submitted that the matters advanced in para 86 of the appellant’s submissions (reproduced above at paragraph 134 of this judgment) were purely speculative. Further

Transcript 17th April 2023 pp. 28-42 there was evidence of the level of traffic in the area by virtue of the CCTV footage before the Court.

Decision on Grounds 6 and 7

152. We have carefully considered the full transcript of the witness evidence adduced before the SCC, and further such documentary and real evidence as was also adduced before them, and we are fully satisfied that the SCC’s finding and conclusions were supported by evidence, and that the claim of perversity is not made out. For the avoidance of doubt, we have considered each of the first named appellant’s specific complaints reproduced at paragraph 134 of this judgment, and following a review of the totality of the evidence we agree with the respondent that they are not made out, and that in certain respects they are indeed speculative.

153. The SCC heard and received the evidence of witnesses firsthand and was best placed to consider its credibility and reliability, and it was entitled in circumstances where there was conflicting testimony to prefer the testimony of one witness over that of another or others where there was a rational basis for doing so. We consider that the SCC was entitled to prefer the testimony of Mr. Byrne over that of Ms. McGlynn and Mr. Tyrrell, cogent reasons having been provided for doing so.

154. Further, we are satisfied following our review of the transcript, including that of the SCC’s judgment setting out the reasons for its conclusions, that the SCC properly appreciated, and correctly applied, the law on assessing the significance of circumstantial evidence, as was most recently restated and elaborated upon in the Cumberton case, cited above. We are satisfied that there was an adequate basis for any inferences drawn. We are further satisfied that the “two views” rule was properly applied whenever it was engaged.

Whenever the SCC rejected an inference favourable to the first named appellant and preferred an inference consistent with his guilt, it only did so in circumstances where it was manifestly satisfied to the standard of beyond reasonable doubt that the latter was the correct inference to draw.

155. In the circumstances we reject and dismiss grounds of appeal no’s 6 and 7 on behalf of the first named appellant.

Complaints concerning rebuttal evidence adduced by the prosecution

156. These complaints are to be found in the proposed additional ground of appeal, i.e., Ground A. The basic grievance articulated is that the SCC erred in allowing the prosecution to call Paul Byrne as a rebuttal witness in respect of the testimony of Ms.

McGlynn and Mr. Tyrrell, respectively, adduced on behalf of the first named appellant.

The first named appellant’s submissions

157. Section 20(4) of the Criminal Justice Act 1984 (“the Act of 1984”) permits the State, at the discretion of the trial judge, to call rebuttal evidence after an alibi witness has testified. “(4) Any evidence tendered to disprove an alibi may, subject to any directions by the court as to the time it is to be given, be given before or after evidence is given in support of the alibi.”

158. In so far as Ms. Julie McGlynn was concerned, an alibi notice had been furnished in relation to her prior to the commencement of the trial. Further to this, a statement from Julie McGlynn had been furnished to the State about six weeks before the trial commenced. This statement made it clear that the defence case was that William Bonney had been the driver of the BMW X5 at times material.

159. Central to the first named appellant’s complaint, in so far as it related to rebuttal evidence being called to address the testimony of Ms. McGlynn, was a submission that in the People (DPP) v. O’Sullivan [2018] IESC 15, the Supreme Court had considered s.

20(4) of the Act of 1984 and had stated (per O’Malley J) that “in general the prosecution is entitled to call rebuttal evidence only if something arises from the defence case that could not have been reasonably foreseen.” The first named appellant’s case was that the defence had made no secret that its case would be that William Bonney, as opposed to Jason Bonney, was the driver of the BMW X5 on the day of the shooting. It was contended that this proposition had been put to several of the State’s witnesses including an expert witness, Sarah Skedd, and a Garda Michelle Purcell, before the defence went into evidence and called Ms. McGlynn. Accordingly, the contention on behalf of the first named appellant was that it was entirely foreseeable that the defence would seek to support what had been put, by adducing the evidence of Ms. McGlynn.

160. It was further contended that the Supreme Court in O’Sullivan had cautioned that the normal rules re the order in which witnesses are called was not to be departed from readily, and the Supreme Court had gone on to draw a distinction between what could be characterised as evidence:

(i) going solely to the credibility/character of the alibi witness and;

(ii) concerning the facts at issue in the case, and that a trial court should only allow rebuttal evidence regarding an alibi witness where that evidence goes solely to the credibility of the alibi witness.

161. It was contended that Mr. Byrne was not called solely to address the credibility of Ms.

McGlynn, and on that account he ought not to have been permitted to testify, at the stage at which he did, i.e., as a rebuttal witness after the defence had adduced its evidence.

162. In so far as the evidence of Peter Tyrrell was concerned, counsel for the first named appellant contended that this was not, in fact, alibi evidence at all as his evidence only related to the fact that he had seen the appellant’s late father driving the aforementioned BMW X5 and not that he had seen or had any knowledge of the whereabouts of the appellant.

163. Counsel for the first named appellant has submitted that the manner in which the evidence of Paul Byrne was called took the defence by surprise in what was contended to be an egregious departure from the proper running order of a criminal trial. This was said to have ultimately limited the defence’s ability to test this evidence and to carry out effective cross-examination. It is respectfully submitted that this gave rise to a deprivation of the appellant’s right to a fair trial.

The respondent’s submissions

164. In replying submissions, counsel for the respondent contends that the matters complained of in additional ground A were not raised at the trial, and relies in the first instance on People (DPP) v. Cronin (No 2) [2006] 4 I.R. 329 as authority for the proposition that this Court should not in the circumstances permit the first named appellant to rely on these matters. In making this argument, counsel for the respondent accepts that the Cronin jurisprudence would allow for such matters to be relied upon if not to permit that would amount to a flagrant denial of justice. However, he maintained, the matters complained of, even if sustained, would not reach that threshold.

165. As regards the substantive complaints, the respondent’s position is that the evidence of Mr. Tyrrell did constitute alibi evidence on the basis that alibi evidence is evidence that tends to show that the accused did not commit the offence, and Mr. Tyrrell’s evidence to the effect that someone else was driving the vehicle at the centre of the case against the first named appellant was evidence (if accepted) that this appellant did not commit the offence. While it had not been required to rule specifically on this issue, the SCC had clearly been of that view as is apparent from the following exchanges between the bench and defence counsel on the 24th of January 2023 (Day 50 of the trial, at pp 63-64 of the transcript):

“MS. JUSTICE BURNS: Well can I ask a question, Mr. Fitzgerald, is the evidence that we’ve heard contained in a statement from Mr. Tyrrell?

MR. FITZGERALD: One that he gave to us, but not that he ever gave to Gardaí.

MS. JUSTICE BURNS: I see, because perhaps my hearing has faltered, but I’ve just heard him give evidence that Mr. Willie Bonney was in the car behind him. Now, that would seem to me to fall within the terms of the Act. But you know what, I’m not going to get into a dispute about this.

MR. FITZGERALD: Well, I say it doesn’t, Judge.

MS. JUSTICE BURNS: Well that’s very nice of you. Mr. Gillane has indicated that he’s not going to stand on ceremony, so I don’t expect you either to stand on ceremony.

MR. FITZGERALD: Very well. MS. JUSTICE BURNS: But that said, I would have expected it to form part of the alibi notice.”

166. Moreover, the respondent’s position is that Mr. Tyrrell’s evidence was called strategically by the defence to reinforce the evidence of alibi provided by Julie McGlynn, and their evidence was inextricably linked in circumstances where the purported alibi evidence of both defence witnesses related to assertions that William Bonney, the now deceased father of the first named appellant, was the person driving the BMW X5 vehicle 08 D 50847 at relevant times on the 5th of February 2016. The respondent submitted that the very purpose of adducing the said evidence was to seek to establish that this appellant was not the driver of the BMW X5 vehicle on the said date, thus providing him with an alibi in circumstances where Julie McGlynn gave evidence that the first named appellant was in fact driving a blue open back truck on the afternoon of the 5th of February 2016.

167. The respondent submitted that it was clear from the cross examination of Jacinta Tyrrell (the wife of Peter Tyrrell) who gave evidence for the prosecution that the first named appellant, and his legal representatives, were aware at an early stage of the trial of the existence of the witness Peter Tyrrell and the potential evidence he might be in a position to offer, which the respondent says fell within the scope of alibi evidence when considered in the context of the evidence to which it was linked, namely that of Ms. McGlynn. Despite this they did not serve an alibi notice in respect of Mr. Tyrrell. In those circumstances the contention that the defence were taken by surprise was contested, as was the suggestion that the first named appellant’s right to a fair trial was in any meaningful way prejudiced.

168. It was the respondent’s position that the specifics of the testimony of Peter Tyrrell could not have been foreseen by the prosecution and that in those circumstances the rebuttal evidence of Paul Byrne was admissible, and the SCC was entitled to rely on his evidence to rebut the testimony of both Julie McGlynn and Peter Tyrrell.

Decision on additional ground A

169. Our initial disposition is to uphold the Cronin (No 2) based objection raised by the respondent, subject to being satisfied that to do so will not give rise to a flagrant denial of justice. To be satisfied as to the latter we have had, of necessity, to engage with the substance of the matters in controversy.

170. We have considered the substantive issues in contest in the context of the evidence as it unfolded at trial, and the run of the trial. We have also had due regard to the terms of s.

20(4) of the Act of 1984 and to the Supreme Court’s jurisprudence on this as reflected in the judgment of O’Malley J in the O’Sullivan case, previously cited. We are persuaded by the arguments advanced by the respondent that the SCC was entitled in the circumstances of the case to exercise its discretion pursuant to s. 20(4) aforesaid to allow the prosecution to call evidence from Paul Byrne in rebuttal of the evidence of both Julie McGlynn and Peter Tyrrell. We think that the present case is distinguishable on its facts from the O’Sullivan case. In that regard we are satisfied that in the present case the evidence of Paul Byrne which was called in rebuttal tended to undermine to a significant extent the credibility of the account being advanced by both Julie McGlynn and Peter Tyrrell concerning who had been driving the BMW X5 at material times on the date in question. Accordingly, in our assessment, the O’Sullivan jurisprudence did not preclude the SCC from receiving, and relying upon, the evidence of Paul Byrne offered in rebuttal.

171. In arriving at that view, we have further concluded that Peter Tyrrell’s evidence did indeed qualify as alibi evidence within the meaning of s. 20(4) of the Act of 1984, and that an alibi notice could and should have been served on the prosecution in respect of it, but note that no such alibi notice was in fact served. We have also been persuaded that the evidence of Julie McGlynn and Peter Tyrrell was, as the respondent contends, inextricably linked, and that in the circumstances Paul Byrne’s rebuttal evidence would, of necessity, have to address the testimony of both defence witnesses. In our assessment, there was no reality to the maintenance of so called “Chinese walls” between them.

172. We accept the respondent’s submission that it is apparent from the cross-examination of Jacinta Tyrrell that this appellant’s defence team must have known for some time of the existence of the witness Peter Tyrrell and of the potential evidence he might offer. There was always the risk that he would be regarded as an alibi witness and that, particularly if notice of his intended evidence was given to the prosecution, but in any case, even if that was not done, the prosecution might seek to call evidence in rebuttal of his testimony.

173. We are further satisfied having carefully scrutinized the transcript as to submissions made, evidence given, and the order in which events unfolded, that this appellant was not in fact taken by surprise by the prosecution’s decision to seek to call evidence in rebuttal and that there is no basis for apprehending that there was a breach of his fair trial rights.

We do not accept that the ability of the first named appellant’s legal team to test the evidence called in rebuttal was limited, or that they could not carry out an effective crossexamination. Moreover, no application was made for an adjournment or for additional time to be provided to the defence on the basis that they were taken by surprise and needed time to enable them to deal with the unexpected.

174. We further draw support for our conclusion that they were not surprised by the prosecution’s decision to seek to call rebuttal evidence from the fact that the objections now being pursued were not ventilated or pursued at trial. Notwithstanding that the presider on the panel had earlier expressed a provisional view that Mr. Tyrrell’s proposed evidence should have been the subject of an alibi notice, this was in circumstances where the SCC was not being asked to and did not need to, rule on the issue at that point in time. The matter on which a provisional view was expressed had not been fully argued, and the view expressed remained capable of being contested.

An opportunity to re-visit the issue crystallised in stark terms once Mr. Tyrrell had given his evidence in the terms in which he gave it, and the prosecution were then seeking to call Mr. Byrne as a rebuttal witness. At that point it was fully open to defence counsel to press a contrary view, to object to the proposed calling of rebuttal evidence, and to seek to insist on receiving a considered ruling by the SCC following full argument as to whether Mr. Tyrrell’s testimony in fact qualified as alibi evidence. However, that course of action was not pursued and no satisfactory explanation for not doing so has been advanced.

While present counsel for this appellant, who did not represent his client in the court below, has speculated in oral argument before us that it may have been considered futile to do so in the light of the presider’s earlier indication of her own provisional view, there is no evidence from previous counsel that that was the case, and we do not regard this speculative view as being an adequate or satisfactory explanation. An indication by the bench, or a member of the bench, as to a preliminary view on a legal issue, or as to a matter of fact, or as to mixed question of law and fact, may sometimes arise in a criminal trial.

However, it will rarely represent an actual pre-judgment, rather in truth it will constitute an implicit invitation to a party or the parties to engage with the court if necessary and seek to persuade it of the opposite view, should there be disagreement with the preliminary view expressed and a desire to contest it. The court will know that it has to remain open minded and be prepared to see its view contested, and if necessary be prepared to change its mind after full argument has been received. Irish criminal trial procedure is adversarial and an indication by a trial court of a preliminary view on an issue is no barrier to such a view being subsequently contested.

We consider that even if the first named appellant’s legal team were not optimistic of changing minds, they would nevertheless, if they had had any faith in the point, to which they were clearly alive, have raised a formal objection at the appropriate time in similar terms to that which is now being relied upon, and have pressed for a ruling on whether Mr. Tyrrell’s testimony qualified as alibi evidence, if only to preserve the possibility of revisiting the issue on appeal before this Court at a later stage. They did not do so, and no evidence to explain why they did not do so has been proffered.

We therefore infer that the decision not to object was very likely a tactical or strategic one taken on the basis that having regard to such evidence as was before the SCC, the point was thought to be a weak one, unlikely to succeed and one not worth pressing in the circumstances.

175. Accordingly, we are satisfied in all the circumstances that it will not represent a flagrant denial of justice to the first named appellant if, pursuant to the Cronin (No 2)

jurisprudence, he is precluded from relying on additional ground “A” in this appeal. In the circumstances we consider it inappropriate to allow him to rely on the said additional ground, and reject his complaints as to the admission of the evidence of Paul Byrne in rebuttal on that basis.

Grounds of Appeal Unique to the Second Named Appellant

Complaints concerning the admission of CCTV evidence

176. These complaints are to be found in grounds of appeal no’s 6, 7 and 8, on behalf of the second named appellant. This appellant identifies six pieces of footage from the CCTV montage adduced in evidence as relating to the movements of the Toyota Avensis 07 D 45775. He challenged this evidence unsuccessfully during the trial on the basis that there had been breaches of the Data Protection Acts 1998 and 2003 in the context of a recognised right to privacy under the Constitution, Charter of Fundamental Rights and European Convention on Human Rights. These claims are re-iterated in this appeal and as pleaded are that the SCC erred in admitting CCTV evidence “which failed to provide minimal protections for the rights of the appellant, the co-accused and citizens of Ireland and the EU, including their constitutional rights, human rights and privacy rights, including those under the Charter of Fundamental Rights of the European Union, in particular in circumstances where the prosecution had failed to prove that such retention and access had been carried out in a manner that was a) in accordance with law; b)

necessary; c) proportionate; d) transparent and in compliance with data protection laws.”. Further, that the SCC erred in holding that the appellant may not assert privacy rights if he does not accept that the Avensis vehicle recorded in the CCTV footage was in fact his car. Finally, there is a contention that the evidence in question, because of the poor quality of some of the imagery captured, and the lack of clearly visible distinguishing features tending to identify the particular vehicle of interest, did not in any case support the conclusions of the SCC.

177. The six pieces of CCTV footage at issue were extracts from the montage covering:

i. 26 Buckingham Street;

ii. Maxol, Howth Road;

iii. Beachcomber pub;

iv. Donnycarney credit union;

v. Kavanagh’s pub;

vi. Sean Treacy House.

178. In part 5 of the second named appellant’s written submissions under the heading “CCTV and data protection”, detailed legal submissions are made concerning the alleged breaches of data protection law and rights to privacy contended for. While these submissions referenced this Court’s decision in The People (DPP) v. Dunbar [2024] IECA 85, concerning the rights and duties of An Garda Síochána in regard to the accessing and utilization of available CCTV footage in the investigation of crime, counsel sought to distinguish the Dunbar case from the present case, on the basis that Dunbar had involved the statutory data protection regime post the enactment of the Data Protection Act 2018 (“the Act of 2018”), whereas the data at issue in the present case had been collected in 2016 when a different statutory regime applied. Specifically at issue was whether the exemption provided for in s. 8 of the Act of 2018 could be relied upon by the prosecution in the present case as a basis for contending that they did not need to specifically prove that the CCTV data which had initially been collected and processed by the various private operators concerned before later being handed over to or seized by An Garda Síochána had been lawfully collected and processed. Counsel was tasked by a member of the bench with the proposition that, while it was true that the Dunbar case had been concerned with CCTV data collected post 2018, there were other potentially relevant decisions, including People (DPP) v. Anghel [2024] IECA 90; People (DPP) v. Thompson [2024] IECA 22 and People (DPP) v. Harrington [2024] IECA 153. Counsel candidly conceded in reply:4

“COUNSEL: Sorry, I haven’t looked at the others. The only issue was that the Dunbar decision dealt with the legislation post 2018 and my case is 2016. That was the only difference.

MS JUSTICE KENNEDY: Okay

COUNSEL: That’s literally it. That’s all. So there’s nothing of substance beyond that.”

179. In replying written submissions and oral argument counsel for the respondent placed particular reliance on the judgment of Ní Raifeartaigh J on behalf of this Court in the Thompson case, citing paragraphs 89-90 thereof wherein it is stated:

“89. We agree with the trial court that there was no breach of the appellant’s right to privacy at all, and that individuals walking down a public street, driving a car on the public road, or even eating a meal in a restaurant open to the public do not, in this day and age, have a reasonable expectation 30 that their movements will be immune from CCTV observation, certainly in a situation where no individual is being targeted for the purpose of gathering information and where the camera is simply gathering random information about persons or vehicles in the location. In the absence of any breach of the constitutional right to privacy, it was not necessary for the trial court to consider the principles applicable to the exclusionary rule (as discussed in J.C., and more recently in Quirke).

90. If such an exercise had been required, significant factors in the balance in favour of the admission of the evidence would in any event undoubtedly have been that the degree of any privacy intrusion was minimal, that it arose from the conduct of private individuals (failing to register their systems with the Data Protection Commission) and not from any conduct on the part of the State or its agents, and that the evidence was collected by the Garda Siochána in the context of a specific murder investigation. As the Director submitted, the situation is akin to that in People (DPP) v. Gold where the Court upheld the decision of the trial court to admit evidence where the voice recording in question was created without any State involvement and where there was no suggestion that the State was complicit in unconstitutional actions taken by a private party to introduce evidence. However, in view of our agreement with the trial court that the appellant’s constitutional right to privacy was not violated by the CCTV recordings of him in public places, it is not necessary to consider the ‘balancing’ exercise in this case.”

180. Counsel for the respondent has submitted, “that this deals with the submissions of the appellant on the [alleged breach of rights] issue in its entirety, and there is no error of

Transcript of proceedings before the Court of Appeal, 08/10/2024, p. 19; Ins 15-20 law in admitting the evidence.” We agree, and reject grounds of appeal 6 and 7 in so far as they raise legal issues concerning breaches of rights, and alleged unlawfulness of data collection and data processing. In regard to ground 8, while the SCC held that the second named appellant could not assert a right of privacy in respect of images of a vehicle where he was not prepared to accept that the vehicle at issue was his, or being driven by him at the time, we have doubts as to the correctness of that proposition having regard to Supreme Court’s judgments in People (DPP) v. Smyth [2024] IESC 22 and People (DPP) v. McAreavey [2024] IESC 23. However, even if the second named appellant was entitled in principle to assert privacy right protections in respect of the video clips concerned, we are nonetheless satisfied, taking the same approach as in Thompson and adopting its reasoning and applying it analogously to the circumstances of this case, that none of the second named appellant’s privacy rights were in fact breached.

181. In so far as it is contended that the CCTV evidence in question did not in any case support the conclusions of the SCC, we reject this contention. We have viewed the CCTV footage at issue and are satisfied that, notwithstanding criticisms of it raised on behalf of the second named appellant, there was a sufficient evidential basis for the SCC’s findings.

They were the tribunal of fact, and they were entitled to assess the evidence and draw appropriate inferences from it. We are satisfied that the clarity of the imagery was neither so infirm as to preclude this, nor can it be said that there were insufficient distinguishing features of the vehicle of interest to preclude an identification of it. The SCC was at various points able to discern the model of the vehicle and the fact that it was a taxi, and referenced its colour, its unusual alloy wheels and stickers on the back window in support of its conclusions. Assessment of the evidence, and the weight to attach to it, was a matter exclusively for the trial court unless there was no evidence to support their conclusions and findings. That was not the case.

182. In the circumstances we dismiss grounds of appeal no’s 6, 7 and 8 on behalf of the second named appellant.

Complaints concerning the search and seizure of the Avensis vehicle

183. These complaints are to be found in grounds of appeal no’s 16, 17 and 18, on behalf of the second named appellant. The substance of these complaints is that the SCC erred in finding that s. 7 of the Act of 2006 conferred a power of search on the State to search the interior of the Avensis vehicle, and examine the objects found therein (specifically in this case the taxi receipts previously referred to). It is further complained that the said taxi receipts, having been seized unlawfully according to this appellant, ought not to have been admitted in evidence.

184. The second named appellant relies on the express wording of the said s. 7, which is in these terms:

7.— (1) Where a member of the Garda Síochána who is in—

(a) a public place, or

(b) any other place under a power of entry authorised by law or to which or in which he or she was expressly or impliedly invited or permitted to be, finds or comes into possession of any thing, and he or she has reasonable grounds for believing that it is evidence of, or relating to, the commission of an arrestable offence, he or she may seize and retain the thing for use as evidence in any criminal proceedings for such period from the date of seizure as is reasonable or, if proceedings are commenced in which the thing so seized is required for use in evidence, until the conclusion of the proceedings, and thereafter the Police (Property) Act 1897 shall apply to the thing so seized in the same manner as that Act applies to property which has come into the possession of the Garda Síochána in the circumstances mentioned in that Act.

(2) If it is represented or appears to a member of the Garda Síochána proposing to seize or retain a document under this section that the document was, or may have been, made for the purpose of obtaining, giving or communicating legal advice from or by a barrister or solicitor, the member shall not seize or retain the document unless he or she suspects with reasonable cause that the document was not made, or is not intended, solely for any of the purposes aforesaid.

(3) The power under this section to seize and retain evidence is without prejudice to any other power conferred by statute or otherwise exercisable by a member of the Garda Síochána to seize and retain evidence of, or relating to, the commission or attempted commission of an offence.

185. It was submitted that s. 7 confers a power to seize and that it is not a power to search.

While Gardaí had a power to seize the vehicle, as it was believed to be evidence relating to an arrestable offence, it was contended this did not give gardaí power to search inside the vehicle. It was said to be the vehicle itself, that the gardaí had a suspicion in relation to. It was submitted that if the gardaí wished to search the contents of the vehicle, they ought to have sought a warrant to search inside it.

186. In reply, the respondent has submitted that the SCC did not err in determining that s. 7 of the Act of 2006 conferred a power to search a vehicle that has been seized pursuant to the section. The assertion made by the second named appellant that the section provides a power of seizure of a vehicle only and that any search within the interior of the seized vehicle thereafter is unlawful, was said to be wholly misplaced. It was submitted that in fact the power to seize a vehicle for the purposes of retaining said vehicle for evidence (which was clearly the purpose of the seizure of the second named appellant’s vehicle), has by necessary implication a power to search that vehicle. To take the submission of the second named appellant to its logical conclusion the gardaí could seize a wallet but would not have the power to open it, or a jacket and not have the power to check the pockets.

187. It was submitted that in reaching the determination that the search conducted of the Avensis vehicle was lawful, the SCC had correctly observed:

“The section is clear that the power is to seize the thing and retain the thing for use as evidence. For an item to be produced in evidence implies that it has been examined, otherwise how can it be determined that it has evidential value.”

188. It was submitted that other search and seizure powers outlined by the appellant have no relevance in the instant case. The respondent contends that the vehicle was lawfully seized under s. 7 of the Act of 2006 and there was an implicit power to lawfully search it following its seizure.

189. We agree with the SCC that the power to search a vehicle lawfully seized under s. 7 of the Act of 2006 arises implicitly so that the item that has been seized can be thoroughly examined. Any other interpretation would offend common sense and be lacking in reality, and we do not accept that the Oireachtas could have intended that a warrant would be required to search its interior and examine any contents therein, simply because a vehicle’s interior is an enclosed (and possibly locked) space. The interior of a vehicle is not the same as the digital space, which has been held to exist separately from any computer or telecommunications device required to access it. The exterior and interior of a vehicle, and its contents, represent items in a single physical space which the gardaí, following lawful seizure of the vehicle, are entitled to fully and comprehensively examine.

We are therefore satisfied that not only was the Avensis lawfully seized pursuant to an express statutory power, but it was also lawfully searched following its seizure pursuant to a power to do so implicit in the section. Further, we are satisfied that the taxi receipts found in the vehicle were also lawfully seized and examined. They were also quite properly admitted into evidence.

190. Accordingly, we find no error on the part of the SCC in these respects, and dismiss grounds of appeal no’s 16, 17 and 18, on behalf of the second named appellant.

Complaints concerning admissibility of evidence obtained on foot of search warrants

191. These complaints are to be found in grounds of appeal no’s 19, 20 and 21 in so far as they concern a warrant to search 26 Buckingham St; and grounds of appeal no’s 22 and

23 in so far as they concern a warrant to search a premises at Champions Avenue.

192. It is convenient to deal first of all with 26 Buckingham St. A search warrant was obtained from the District Court in order to secure and download recorded video footage from an installed CCTV system at that premises for use in the garda investigation into the Regency hotel shooting. That warrant was duly executed, and CCTV footage recovered formed part of the video montage relied upon by the prosecution at the trial. The complaint here is that the SCC could not have been satisfied on the evidence adduced before it that the warrant had been lawfully issued.

193. The second named appellant contends that the District Court judge was not apprised of the information grounding the warrant that 26 Buckingham St was a family home. Neither was he/she provided with details as to what the CCTV would contain, namely the movement of vehicles. It was submitted that where a District Judge is not provided with all the information, the judge cannot exercise their discretion. In circumstances where a member of An Garda Síochána neglects to give a court full facts, on its application for a warrant, this removes the Judge’s discretion as it is unknown whether the warrant would have been granted had the full facts been before him/her. Further, it was submitted that if the Court was not apprised that 26 Buckingham Street was in fact a family home, it was not possible for the Court to balance the rights of the common good against the rights of privacy of the family home. This was said to be particularly egregious where the investigating Garda applied for a general warrant when he only required the CCTV from the premises. It was submitted to the trial court that the issuance of a more limited warrant would have been more appropriate.

194. Complaint was also made that the investigating member did not ask the occupiers of this premises whether they could have the CCTV prior to seeking the warrant. The Garda, in his evidence, outlined that he did not ask anyone on Buckingham Street to hand over the CCTV prior to seeking a warrant. The significance of this, it was submitted, was that perhaps the footage might have been handed over to Gardaí without any need to seek a warrant authorising an intrusion upon the owners’ privacy rights and infringement of their otherwise inviolable dwelling space.

195. Although these arguments were made to the SCC, that court ruled:

“Having regard to the fact that CCTV was what was being sought at this premises, failing to inform the district judge that this was a premises where a family with children was living is of no moment.”

196. The second named appellant relies on Corcoran v. Commissioner of An Garda Síochána [2023] IESC 15, [2023] 2 ILRM 237 in support of his argument that the warrant relied upon must, in the circumstances of the case, be regarded as infirm and invalid.

197. Counsel for the respondent submitted that the ruling by the SCC was correct, and that no error had been identified by the second named appellant. This appellant had merely sought to make the same arguments again without highlighting any deficiencies or errors in the ruling of the trial court. It was submitted that there was no such error.

198. We agree with the respondent’s submissions. The circumstances in which the warrant at issue was obtained in this case were very far removed from the circumstances in the Corcoran case on which reliance was placed, which case had involved failing to reveal to the District Judge that the material of interest and to be searched for could potentially attract journalistic privilege. Nothing of the sort was at issue here. The SCC correctly ruled that there is no obligation on a member of An Garda Síochána to seek material on a voluntary basis prior to making an application to court. While it might perhaps have been preferable if some further information had been supplied to the District Judge, and perhaps a more limited form of warrant sought in the particular circumstances, we do not consider that the failure to do these things was a deficiency of such a moment in the circumstances of the case as to render the warrant that was in fact issued unlawful. We are satisfied that, although the information provided to him/her could have been more extensive, the District Judge was nonetheless provided with sufficient information to justify issuing a warrant in respect of these premises.

199. We therefore reject grounds of appeal no’s 19, 20 and 21 on behalf of the second named appellant.

200. Turning then to the warrants to search No 18 Champions Avenue, two warrants were issued and executed in respect of that premises: one on the 18th of February 2016 and the other on the 25th of February 2016. The warrant relevant to this appeal is that obtained on the 25th of February 2016, as the previously mentioned key card to Buckingham Village was found in the course of the search purportedly authorised by that warrant. This warrant was objected to before the SCC, who agreed that it was bad on its face because it failed to properly identify the court which had issued it. While it was entitled “The District Court”, the title did not identify the District Court Area or District Number concerned. Moreover, while there was a reference within the body of the main text of the alleged warrant to District No 1, this was not correct. District No 1 is in Donegal whereas there was evidence before the SCC that the warrant had been issued by District Judge Halpin sitting in the Dublin Metropolitan District Court. The alleged warrant was signed by District Judge Halpin, and he was identified below his signature as being a judge of the District Court “assigned to the said District.” While the SCC agreed that the warrant was bad on its face for failing to establish jurisdiction to issue it, it considered that the second named appellant’s constitutional rights were not engaged and were not breached by the search of 18 Champion’s Avenue, as he was not residing there and did not own the premises. While the search had not been lawfully authorised, what had occurred was merely an illegal search and not a search conducted in deliberate and conscious violation of the second named appellant’s constitutional rights. The SCC then exercised its discretion to admit the fruits of the search in evidence notwithstanding the illegality. The second named appellant has submitted to us that the SCC inappropriately exercised its discretion and ought to have excluded the evidence.

201. A further circumstance which is relied upon by the second named appellant in support of his contention that the SCC inappropriately exercised its discretion to admit the evidence obtained illegally is that the warrant purportedly authorising the search was the second warrant applied for in respect of that premises within the space of one week. The circumstances in which a second search warrant was sought were as follows. During the garda investigation post the Regency shooting a Ford van suspected to have been used during the incident was recovered. That van was forensically examined but the relevant ignition key and door key for it could not be found. However, gardaí were aware that a Ford key had been observed on a key rack in the hallway of 18 Champions Avenue when it searched on foot of the warrant obtained on the 18th of February 2016, which was not accounted for by the occupier. Its potential significance had not been appreciated by the search team at that time, and it was not seized. When its potential significance was realised a second warrant was later sought in order to recover it. During the second search, the key was recovered but in addition the gardaí found and also seized the key card for Buckingham village. It was submitted that for the District Court to have purportedly granted a further warrant on the 25th of February 2016 in the wide terms in which the document at issue was framed was an excessive and disproportionate use of the power. It was submitted to this Court that this was a circumstance to which the SCC had attached insufficient weight in considering whether to exercise its discretion to admit the fruits of the illegal search in evidence.

202. In ruling on whether or not to admit the controversial evidence, the SCC, having cited relevant passages from People (AG) v. O’Brien [1965] IR 142, said:

“In relation then to this case, the defence further rely on the fact that this search was the second search of this property. A search warrant had initially been granted and executed. After the search, the search team realised that they omitted to take a key which they had noticed hanging on a key rack. Accordingly, an application for another search warrant based on this information was made. The search warrant which was granted was of a general nature and did not restrict the search team to only searching in the area where the key had been seen or only seizing the key if found.

With respect to whether this issue raises an illegality, once the District Court judge was satisfied to issue the warrant, it was within his jurisdiction to permit a general search as a key could be located anywhere. There was no obligation on the District Court to restrict seizure of material found in the course of the second search to the key, to hold otherwise would mean that the guards could enter a house on a valid search warrant, conduct a lawful search, find some seriously incriminating item, but nonetheless not be entitled to seize it. Once the District Court was satisfied to issue a second warrant, it was within the District Courts judge's jurisdiction to determine the breadth of it.

In the instant case, issuing a general warrant was not invalid, accordingly anything could be seized on foot of that warrant. Therefore, the sole illegality which the Court is considering in this instance is the fact that the warrant is bad on its face.

As already stated, the Court has a discretion to nonetheless admit the evidence, having regard to the principles set out in the People Attorney General v. O'Brien.

The Court is of the view that the illegality arising in the instant case is an administrative error, in that the warrant does not cite the Dublin Metropolitan District, but rather cites another district. This error obviously arises through sloppiness and inadvertence and should not have occurred. But the nature of the error was not intentional, this error can be characterised as being of a technical nature. Accordingly, as Mr Murphy has no right or interest affected, the Court will exercise its discretion to admit the evidence found at 18 Champions Avenue into evidence at the trial.”

203. The respondent contends that this ruling was in line with the more recent Supreme Court authority of People (DPP) v. J.C. [2017] 3 I.R. 417. Further, he reminds us that the issue of the exercise of the discretion with specific reference to illegality was discussed and considered by this Court in the recent case of People (DPP) v. McHugh [2024] IECA 176, where, at p. 9, we referenced Charleton J’s dicta in the Supreme Court case of People (DPP) v. AC [2022] 2 IR 49, where he in turn had stated:-

“When an illegality has been the foundation of the finding of evidence, regard may be had to the gravity of the wrong and the consequences; what Clarke J refers to in The People (Director of Public Prosecutions) v JC [2015] IESC 50, [2017] 3 IR 417 as an “assessment”. There may, in addition, be circumstances where the protection of the fairness of taking a confession statement requires the judiciary to protect a suspect from a trick, such as a false statement of the confession of an accomplice or deceit over a fingerprint or DNA which does not exist. That is a common law exception related to the maxim nemo tenetur se ipsum prodere.”

204. It was submitted by the respondent that the critical issue in the instant case is the lack of any interest in or connection to the premises in question by the second named appellant.

In so far as he submits that there was no necessity for a second warrant, either at all or in the wide terms in which it was purportedly granted, in circumstances where the gardaí sought the warrant as they had neglected to seize something on the first occasion, this was clearly pertinent, but it was submitted that it could not weigh into the balance as to the exercise of discretion to such an extent as to negate any possibility of it being exercised in favour of the admission of the evidence. It was submitted that it is not uncommon for members of An Garda Síochána to seek a further search warrant or warrants where the continuing investigation makes it apparent that items that may not have appeared to be relevant in an initial search take on an importance, and that a court was also entitled to take that into account.

205. We entirely agree with the submissions on behalf of the respondent and are satisfied that the discretion that was vested in the SCC to admit the evidence in controversy, notwithstanding that it had been illegally obtained, was properly exercised. It seems to us that there was an appropriate weighing of the competing considerations, including the gravity of the wrong and its consequences, and also of the public interest; and that the SCC was then entitled in the legitimate exercise of its discretion to conclude that it should admit the evidence notwithstanding the illegality. We find no error in how the SCC approached the issue, or with respect to their decision.

206. Accordingly, we reject grounds of appeal no’s 22 and 23 on behalf of the second named appellant. Complaints concerning failure to engage with the defence case and adequacy of proof of jurisdiction and of the ingredients of the alleged offence

207. These complaints are to be found in grounds of appeal no’s 24 and 25, on behalf of the second named appellant.

208. The complaint in ground no 24 that the SCC had erred in holding that the prosecution had adduced the necessary proofs to demonstrate the jurisdiction of the SCC to try the offence charged against the second named appellant was ultimately not pressed.

209. As regards ground no 25, which complains that the SCC erred in failing to adequately address the defence submission that the prosecution had failed to prove the necessary ingredients of the offence charged against the second named appellant, including in respect of his knowledge of the existence of a criminal gang or that he was facilitating same, this was to some extent premised on a mistake as to the law that appeared in the second named appellant’s written submissions. It was conceded at the appeal by senior counsel for the second named appellant that, at least in part, the elaborate argument advanced in the second named appellant’s written submissions in support of ground no 25 was proffered in reliance upon an incorrect version of s. 72 of the Act of 2006, in that the version quoted and relied upon did not reflect the amendments to that section enacted by s. 6 of the Criminal Law (Amendment) Act 2009 (“the Act of 2009”).

210. The case made on behalf of this appellant was that, while it was accepted in interview by the second named appellant that he had known the Hutch family from when he was young and living in the North inner city, and it had been outlined to the SCC, in closing submissions, that this appellant knew Eddie Hutch through the Taxi business, there was no evidence given that either Eddie Hutch or Patsy Hutch were specifically members of the Hutch organised crime organisation or would have been known to be members of it by the second named appellant.

211. It was submitted that the SCC erred in finding that the second named appellant was aware of the existence of the Hutch “criminal organisation”. Further, that the SCC failed to engage with the argument put forward by counsel, that the second named appellant may have been aware of the crime group but not that Patsy or Eddie Hutch were members. It was submitted that there was insufficient evidence to draw appropriate inferences from the state of the evidence to convict the second named appellant on the basis of the statutory definitions.

212. It was further complained that in the present case it was outlined in the indictment that “on the 5th February 2016, with knowledge of the existence of a criminal organisation, did participate in or contribute to activity, intending to or being reckless as to whether such participation or contribution could facilitate the commission of a serious offence by that organisation or any of its members, to wit the murder of David Byrne, by providing access ....”. The prosecution identified the crime that they believed the second named appellant was facilitating; yet, it was contended, the evidence fell far short of establishing that this appellant was in fact aware that he was facilitating the murder of David Byrne.

In People (DPP) v. Smyth and McAreavey [2024] IESC 23, where one of the accused, Mr.

McAreavey, was charged with an offence under s. 7(2) of the Criminal Law Act 1997, it had been contended by the prosecution that Mr. McAreavey was in contact with Mr.

Smyth on the date of the attempted murder and that inferences could be drawn from this sufficient to convict him. Ultimately, although the Special Criminal Court found that it was probable that Mr. McAreavey was aware what crime Mr. Smyth had committed, it found “that the level of certainty was insufficient to convict based on the “first option” relied on by the prosecution”. The Special Criminal Court then proceeded to convict on the basis that Mr. McAreavey was aware that “an arrestable offence of some description” had been committed. We were asked to note that on appeal, the Supreme Court held that that the approach taken by the Special Criminal Court was problematic. It raised concern over the court finding that the accused believed that the principal offender had committed ‘some other arrestable offence’ without identifying what that offence was, stating that:

“in effect, the SCC appears to have proceeded on the basis of a form of constructive belief (he must have believed) which it attributed to Mr McAreavey essentially by reason of the nature of the acts of assistance said to have been undertaken by him (assisting in the destruction of the getaway car) and not by reference to any knowledge of the offence committed by Mr Smyth and/ or the factual circumstances in which that offence was committed.”

213. Counsel for the second named appellant submitted that, similar to McAreavey, Mr.

Murphy had had telephone communication with Eddie Hutch on the date in question.

However, it was said, no evidence was presented by the prosecution, that Mr. Murphy was aware that the murder of David Byrne was to be committed by the Hutch organised crime group or that any offence was in fact, being committed.

214. It was submitted that the SCC, in its ruling in the present case, failed to establish that knowledge of a serious offence was present. The SCC’s ruling provides a detailed and lengthy description of the evidence. Further, the SCC expressed itself as being satisfied beyond a reasonable doubt that the Avensis taxi was driven by the second named appellant and that he was present at Buckingham Village and Casino Park. However, it was submitted, no reference was made to a finding by the SCC that it was convinced beyond a reasonable doubt that this appellant had knowledge that he was committing an offence, serious or otherwise. No reference was made in the ruling that Mr. Murphy had knowledge that he was facilitating an organised crime group in the commission of the murder of David Byrne.

215. The SCC did engage with whether Mr. Murphy had knowledge of the Hutch Organised Crime Group and found beyond a reasonable doubt that he did have that knowledge.

However, at no stage in the Court’s ruling does it establish that Mr. Murphy ‘knowingly by act participates in or contributes to any activity of the organisation’ or that he was aware a serious offence had occurred or might occur.

216. We should pause here to note that the words appearing in parenthesis in the immediately preceding paragraph no longer represent the requisite test. Rather, and this was conceded by counsel for the second named appellant at the oral hearing of this appeal, the test is now, post the 2009 amendment to the Act of 2006, whether he participated in or contributed to an activity of the organisation ‘being reckless as to whether such participation or contribution could either (i) enhance the ability of a criminal organisation or any of its members to commit, or (ii) facilitate the commission by a criminal organisation or any of its members of, a serious offence.’

217. The written submissions on behalf of the second named appellant go on to contend that the SCC failed to engage with the mens rea component of the offence and simply established that the second named appellant was present at relevant locations and times and that an organised crime group existed. It was submitted that it was not sufficient for the court to infer knowledge on this appellant’s part merely from the facts that a crime was committed, and the Hutch’s are an organised crime group.

218. In reply to these submissions, counsel for the respondent says that with respect to the complaint that there was a failure to engage with the defence case, this complaint should be rejected. It was submitted that the SCC’s verdicts were accompanied by considered and comprehensive reasons upon which the verdicts were based. The SCC made specific reference to the legal principles underpinning all criminal trials including trials before the Special Criminal Court, and expressly stated that the Court would be “assiduous in its duty” to apply, and did indeed apply, those fundamental legal principles to the case before it. In counsel’s submission the complaint of non-engagement with the defence is simply not borne out on the transcript.

219. With respect to the specific complaint that the SCC did not adequately address the defence submission that the prosecution had failed to prove the necessary ingredients of the offence charged against the second named appellant, including in respect of his knowledge of the existence of a criminal gang or that he was facilitating same, it was submitted that the defence case, certainly as presented to this Court in writing, did not reflect the amendments to s. 72 of the Act of 2006 enacted by s. 6 of the Act of 2009, a point now conceded by this appellant’s counsel. The statutory provision now provides that the offence may be committed by being reckless as to whether participation in an activity could either (i) enhance the ability of a criminal organisation or any of its members to commit, or (ii) facilitate the commission by a criminal organisation or any of its members of, a serious offence. The further point is made that the second named appellant’s submissions neglect to reference the presumptions under the section and the matters specified in the section as not requiring to be proven by the prosecution.

220. The offence of participation in the activities of a Criminal Organisation contrary to s. 72 of the Act of 2006, as substituted by s. 6 of the Act of 2009, provides (to the extent relevant to this case) that: “72.— (1) A person is guilty of an offence if, with knowledge of the existence of the organisation referred to in this subsection, the person participates in or contributes to any activity (whether constituting an offence or not)—

(a) intending either to—

(i) enhance the ability of a criminal organisation or any of its members to commit, or

(ii) facilitate the commission by a criminal organisation or any of its members of, a serious offence, or

(b) being reckless as to whether such participation or contribution could either—

(i) enhance the ability of a criminal organisation or any of its members to commit, or

(ii) facilitate the commission by a criminal organisation or any of its members of, a serious offence.

(2) A person guilty of an offence under this section shall be liable on conviction on indictment to a fine or imprisonment for a term not exceeding 15 years or both.

(3) [Not relevant]

(4) In proceedings for an offence under this section it shall not be necessary for the prosecution to prove—

(a) that the criminal organisation concerned or any of its members actually committed, as the case may be—

(i) a serious offence in the State, or

(ii) a serious offence under the law of a place outside the State where the act constituting the offence would, if done in the State, constitute a serious offence,

(b) that the participation or contribution of the defendant actually—

(i) enhanced the ability of the criminal organisation concerned or any of its members to commit, or

(ii) facilitated the commission by it or any of its members of, a serious offence, or

(c) knowledge on the part of the defendant of the specific nature of any offence referred to in subsection (1)(a) or (b).

(5) In determining whether a person participates in or contributes to an activity referred to in subsection (1), the court may consider, inter alia, whether the person—

(a) uses a name, word, symbol or other representation that identifies, or is associated with, the criminal organisation concerned, or

(b) receives any benefit from the criminal organisation concerned.

(6) [Not relevant]”

221. In its judgment delivered on the 17th of April 2023 the SCC made the following specific findings (inter alia) in respect of the second named appellant:

“Detective Superintendent Gallagher gave evidence of the existence of the Hutch Criminal Organisation. He indicated that since 2021 he has been the Detective Superintendent charged with investigating priority organised crime groups operating in Ireland or effecting Ireland and that prior to this posting he was, from 2016, part of a senior management team tasked with investigating the Kinahan/Hutch feud. In light of these postings, it is clear that Detective Superintendent Gallagher possess the necessary expertise within the meaning of the 2006 Act to give evidence of his opinion as to the existence of the Hutch Criminal Organisation and that the Court can place significant weight on his evidence.”

And, later in the same judgment, that:

“The Court is further satisfied beyond reasonable doubt that Paul Murphy knew of the existence of the Hutch Criminal Organisation. The evidence establishes that Paul Murphy knew the Hutches. He had a significant connection to Neddy Hutch, occasionally borrowing money from him for a fee. But it is established from his interviews that he also knew Patsy Hutch and Jonathan Hutch quite well.

Furthermore, Paul Murphy was in possession of a key card to Buckingham Village, which was the centre of operations in respect of the Regency, which is established not only by the comings and goings of the various vehicles which the Court has already set out, but is also established by reference to the audio surveillance recording of the 7th of March from Jonathan Dowdall's vehicle, which the Court will come to shortly.

The Court does not accept the story rehearsed by Paul Murphy about a passenger accidently leaving this key card in his taxi three days earlier and, by chance, him trying to use it at the gate of Buckingham Village on the date of the Regency. His possession of the key card and its use on the day of the Regency was clearly a planned event. This is a key card which is linked to Patsy Hutch by virtue of it being in numerical sequence to a card found in Patsy Hutch's jacket at his home. The prosecution have sought to rely on the lie told by Paul Murphy as part of its case against him. The Court has not relied on the fact that a lie was told. It simply has found that there was a lie told but that, in itself, is inconsequential to the Court's determination. Accordingly, the issue of a Lucas warning does not arise as the Court does not rely on the fact that a lie was told although the Court, of course, accepts and understands that a person may lie for all kinds of reasons which are not consistent with guilt, when giving an account to An Garda Síochána.

The Court is satisfied beyond reasonable doubt that the Regency attack was orchestrated by the Hutch Criminal Organisations for reasons which it will give later. The Court is satisfied beyond reasonable doubt, having regard to Paul Murphy's movements on the 5th of February, which have been set out in detail, that Paul Murphy, knowing of the existence of the Hutch Criminal Organisation, provided access to his Toyota Avensis taxi at Saint Vincent's GAA club, intending to facilitate the commission of a serious offence by the Hutches. Accordingly, the Court finds Paul Murphy guilty on count 4 on the indictment.”

222. Counsel for the respondent submitted that in circumstances where Detective Superintendent David Gallagher gave comprehensive and unchallenged evidence 5 pursuant to s. 71(b) and s. 74(b) of the Act of 2006 as amended as to the existence of the Hutch Criminal Organisation and in circumstances where his evidence clearly explained the patriarchal nature of the Organised Crime Group (“OCG”), and its inherent inter-generational and loyalty based system of operation within the Dublin inner city, that at the time of the Regency attack had been involved in a feud with the Kinahan Criminal Organisation, the established existence of the Hutch Criminal Organisation cannot be in dispute.

223. Further, it was submitted that the evidence before the Court provided a basis for the Court to determine that the second named appellant, with knowledge of the existence of a criminal organisation, i.e., the Hutch Criminal Organisation, participated in and contributed to an activity (providing access to motor vehicle 07 D 45775), intending to or being reckless as to whether such participation or contribution could facilitate the commission of a serious offence by that organisation or any of its members, and in this instance resulted in the murder of David Byrne at the Regency Hotel. In that regard the Court was entitled to have regard to the matters specified in s. 72(4) as not requiring to be formally proven by the prosecution.

224. Counsel for the respondent submitted that insofar as the SCC had determined that it was satisfied beyond reasonable doubt that the second named appellant knew of the existence of the Hutch Criminal Organisation in circumstances where the evidence established that this appellant (who was 54 years old at the time of the Regency attack) had grown up in the north inner city of Dublin and had significant established and longstanding connections with multiple members of the Hutch family including Eddie Hutch, Patsy Hutch and Jonathan Hutch, there was a sufficient evidential foundation to support this

Transcript 10th November 2022 pp. 27-31 finding. Of relevance to the Court’s determination in respect to his knowledge of the existence of the Hutch Criminal Organisation in and around the particular time of the Regency attack, was the fact that Buckingham Village had been established as being the center of operations in respect of the Regency attack and from which the transit van left to travel to the Regency Hotel to carry out the attack on the 5th of February 2016. The second named appellant had been in possession of a key card, which provided access to Buckingham Village, and which was linked to Patsy Hutch by virtue of the number sequencing attributed to the keycard.

225. We have considered carefully the submissions from both sides and the judgment of the SCC. Having done so, we are satisfied that there was indeed a sufficient evidential foundation for the determination of the SCC that the second named appellant was guilty of the offence charged. We do not accept that there was a failure by the SCC to engage with the defence case as alleged in the second named appellant’s submissions. By virtue of s. 72(4)(c) of the Act of 2006 as substituted, it was not necessary for the prosecution to prove knowledge on this appellant’s part of the specific nature of any offence referred to in subsection (1)(a) or (b) of s. 72 aforesaid. We are satisfied that the evidence, both direct and circumstantial, before the SCC was capable of supporting the finding that the second named appellant had knowledge of the existence of the Hutch Criminal Organisation, and consider that that finding is unassailable. Further, we are satisfied that the totality of the evidence, both direct and circumstantial, adduced before the SCC justified its further finding that the second named appellant “knowing of the existence of the Hutch Criminal Organisation, provided access to his Toyota Avensis taxi at Saint Vincent's GAA club, intending to facilitate the commission of a serious offence by the Hutches”. Moreover, even if there had not been a justified finding of intentional facilitation in participating in the activity at issue (which there was), there was in any event overwhelming evidence capable of supporting a conviction on the alternative basis of reckless participation in the said activity, given the second named appellant’s knowledge and the nature of the activity engaged in. In the circumstances we dismiss grounds of appeal no’s 24 and 25, on behalf of the second named appellant.

Specific complaints as to findings in the judgment of the Special Criminal Court

226. These complaints are to be found in grounds of appeal no’s 26, 27, 28, 29, 30, 31, 32, 33, and 34, on behalf of the second named appellant.

227. In summary, the complaints articulated amount to claims that various factual findings by the SCC were wholly unsupported, or alternatively inadequately supported, by relevant evidence.

228. We have considered the submissions on behalf of the second named appellant in detail.

However, we do not propose to rehearse them in extenso, and will instead reference them selectively to the extent considered necessary to address such complaints as are made.

229. At the outset we should say that the SCC heard the witness evidence in this case viva voce and was best placed to evaluate the credibility and reliability of the testimony proffered. Further, in so far as the evaluation of circumstantial evidence was concerned, the proper approach to be taken by the SCC was that commended in People (DPP) v.

Cumberton [2020] IECA 136, an authority which was expressly referenced by the SCC, and with which they were plainly familiar. While we do have the benefit of a full transcript, access to all documentary exhibits, and the benefit of the SCC’s written judgment for the purposes of conducting an appellate review, we consider that we, as an appellate court, should not lightly seek to interfere with or to impugn findings of fact based on direct evidence or inferences drawn by the trial court, while acknowledging that we have power and jurisdiction to do so should that be appropriate in the interests of ensuring that a conviction is only upheld where the trial at first instance was satisfactory and that conviction is safe.

The finding that there was one exit from Bella Street

230. The second named appellant submitted that the SCC erred in determining that there was one exit from Bella Street in the absence of specific evidence as to the date on which the map was created.

231. We have considered the evidence that was before the SCC, and in particular the testimony of the mapper Garda Coone who gave clear evidence when asked that there was only one way in or out of the area, which evidence was not challenged by any of the defence teams. Further, we have had regard to the following testimony from Garda Robert Rowe:

“Q. … how many years of operational experience with the north central division have you got?

A. 16, Judges.

Q. Okay, now I think your knowledge of the Dublin -- you would have knowledge of the Dublin 1 area, and you'd have extensive geographical knowledge, including Buckingham Village in Dublin 1; is that correct?”

Garda Rowe then identified Buckingham Village on the map that was in evidence (sheet 7 of the bundle of maps exhibited and proven by Garda Coone on day 1 of the trial), and continued with his testimony:

“Q. Okay, and I think Buckingham Village complex is accessed by a vehicle through an electronic gate or by pedestrian access through a smaller sized gate; is that correct?

A. That is correct.

Q. And that gate is at the entrance and exit there, there's no -- that's where we're talking about?

A. It's at the entrance, yes, yes, that's correct.

Q. Okay, and I think to the right side of the gated entrance there's a security building or a hut with a window to allow a person to view who is entering the complex and if needs be, to provide access to a vehicle or pedestrian by releasing the gate?

A. That's correct.

Q. So as you go in that entrance there's a little hut on the right side; is that right?

A. That is correct, yes.

Q. And that doesn't seem to be particularly noted on the map?

A. It's not noted on the map, no.”

233. Garda Coone’s evidence was unchallenged. Garda Rowe’s evidence was also unchallenged. The map which was before him was unchallenged as to its accuracy. We are satisfied that the SCC had a sufficient evidential basis for inferring and determining from the maps produced in evidence, that there was only one way in and out of the Bella Street area at Buckingham Village. We therefore reject the complaint in ground of appeal no 26.

The findings that Kevin Murray was at Bella Street prior to the Regency shooting and that the van that left Buckingham Street at 12:59 was the same van as later seen on CCTV at the Regency Hotel

234. The Court, in its verdict, concluded that the man walking towards Buckingham Street and turning on to Bella Street prior to the Regency shooting was Kevin Murray (“Flat Cap”).

Both Detective Inspector John Caldwell, and Detective Garda Adrian Ahearne, later identified Kevin Murray as being one of those present at the Regency Hotel from CCTV footage recorded at the Regency Hotel. However, no identifications of Kevin Murray at any location apart from the Regency Hotel were provided to the trial court. The appellant contends that the link in Mr. Murray’s purported movements was sufficiently broken and that another identification was necessary. The SCC concluded that Mr. Kevin Murray was on Buckingham Street based on identifications made 18 minutes prior, in a different part of the city. It was submitted that without these identifications a court could not be satisfied beyond a reasonable doubt. Finally, there is no evidence, and the Court did not conclude, that Mr. Murray had entered Buckingham Village. It was accepted that he entered Bella Street, but the second named appellant says that a link is missing as to where exactly he went.

235. This appellant further contends that the SCC erred in finding that the van carrying the hitmen to the Regency emerged from Bella Street at 12:59. The SCC found beyond reasonable doubt that Kevin Murray travelled from Bella Street to the Regency Hotel in the transit van. It had been submitted to the SCC in closing, and it has again been urged upon this Court in this appeal, that there was no evidence that the van seen leaving Bella Street was the same van that could be seen at the Regency hotel.

236. In response to both points, the respondent has contended that on the basis of all the evidence, the Court was entitled to come to the conclusion in its ruling that the person identified on CCTV at Bella Street / Buckingham Village was Kevin Murray.

237. While there was no identification by a witness of Kevin Murray as the man on Bella Street, it was open to the court to draw the reasonable inference that he was the same person who had been identified in high quality CCTV stills at the Regency Hotel. Further while the court did not make an overt finding that he had gone into Buckingham Village it is apparent from the ruling that where the next identification of him comes when he has exited the van which is tracked from Buckingham Village that he must have entered Buckingham Village to be in a position to do so.

238. The respondent points out that the SCC viewed relevant CCTV footage in reaching its determination, and says that it is clear from recent authorities from the Superior Courts that the triers of fact are best placed to assess and observe real evidence such as CCTV footage adduced at trial, from which the triers of fact may then draw inferences from observable facts as recorded on such footage. It is also clear that in carrying out this exercise, the assistance and guidance of members of An Garda Síochána more used to viewing such footage to point out what is capable of being observed is unobjectionable, as was held by this Court in People (DPP) v. O’Brien and Stewart [2015] IECA 312. Further, we were reminded that in People (DPP) v. Gruchacz [2020] 2 IR 213 the Supreme Court confirmed that there is no issue in principle with the trier of fact making its own assessment of the content of CCTV footage and clarified its status as real evidence available for the consideration by such trier of fact to assess and attach to it such weight as may be deemed appropriate.

239. The point was further made that it was not necessary for the drawing of the required inference in respect of the van that there should be continuous uninterrupted footage of the van for the entirety of its journey.

240. We agree with the submissions made by the respondent. Having considered the full transcript and having also reviewed the relevant CCTV footage we are satisfied that there was a sufficient evidential foundation for inferences that were drawn, expressly or implicitly, by the SCC both as to Kevin Murray entering Buckingham Street, and further that the van seen leaving Bella Street at 12:59 was the same van that could be seen later at the Regency hotel. We therefore reject grounds of appeal no’s 27 and 28 on behalf of the second named appellant. The finding that the fifth interview with this appellant placed him at Buckingham Village despite an earlier interview contradicting same

241. We consider that this complaint, which is contained in ground of appeal no 29 on behalf of this appellant, can be dismissed in limine. The SCC was entitled on the evidence before it to conclude, as it clearly did, that the second named appellant had voluntarily changed his previously given account in his fifth interview. The trial court was best placed to weigh and consider the evidence before it, and to determine what was to be regarded as credible and reliable. Having considered the full transcript, including all of the memoranda of interviews with this appellant, we are satisfied that there was evidence capable of justifying the findings complained of, and accordingly there is no basis in law or in fact for impugning them. In the circumstances we have no hesitation in dismissing ground of appeal no 29 on behalf of the second named appellant.

Gaps in the CCTV footage

242. The SCC found that the vehicle identified as the Toyota Avensis was observed driving in convoy on the northside of Dublin at approximately 14.00 hrs with five other vehicles having collected persons who were involved in the Regency attack. The second named appellant complained in ground of appeal no 30 that this finding was untenable because the SCC had failed to address in its verdict a 19 minute gap on the CCTV montage between two purported identifications of an Avensis vehicle, which the prosecution maintained were of the same vehicle, i.e., purported identifications at the Beachcomber pub and at Casino Park.

243. In reply, the respondent has submitted that the absence of uninterrupted continuous footage of the vehicle for the entirety of the timeframe does not render the footage less valuable, in circumstances where inferences can be drawn as to the journey of travel of the Avensis vehicle on the basis of the various strands of CCTV evidence available, including the surrounding vehicles at various points in the CCTV footage.

244. Further, while it was accepted that each and every distinctive feature of the Toyota Avensis taxi 07 D 45775 is not visible on every portion of CCTV footage contained within the montage, the respondent says that any assertion that this is fatal to the identification of the vehicle as that which is driving in the convoy is incorrect. The CCTV evidence pertaining to this vehicle was properly assessed in the wider context of all the CCTV evidence and supporting evidence. The second named appellant accepted that he was driving his taxi vehicle in the relevant areas on the 5th of February 2016 during interviews. He identified himself and his vehicle at the Maxol petrol station on the Howth Road at 13.14 on the 5th of February 2016, where he purchased a sandwich, and he also confirmed that he was driving his vehicle when it then parked at the Beachcomber public house on the Howth Road at 13.22. Further, the appellant also accepted that he was the only person to drive the Toyota Avensis vehicle on the date of the 5th of February 2016.

245. We are satisfied that the submissions made by counsel for the respondent are correct in law and that there was sufficient evidence for the SCC to conclude, by the drawing of inferences from such evidence as was before them, and notwithstanding that there was not continuous uninterrupted coverage of the vehicle of interest, i.e., Avensis Taxi Reg

07 D 45775, in the montage of CCTV footage presented to them, that it was the same Avensis taxi at all stages and that it had indeed travelled in convoy with five other vehicles having collected persons who were involved in the Regency attack. For the avoidance of doubt, we also agree that the fact that each and every distinctive feature of the Toyota Avensis taxi 07 D 45775 is not visible on every portion of CCTV footage contained within the montage is not fatal either to identifications made or to the SCC’s findings. We are satisfied that on the totality of the evidence the findings complained of, in ground of appeal no 30 on behalf of the second named appellant, were justified. We therefore also dismiss ground of appeal no 30.

Findings based on the receipts

246. It was submitted on behalf of the second named appellant, in support of ground of appeal no 31, that the SCC’s rejection of the second named appellant’s reliance on the taxi fare receipts found in his Avensis taxi as tending to exculpate him, was unjustified in circumstances where no evidence had been adduced to show that the taxi meter in the vehicle concerned was accurate and that it produced accurate receipts. The SCC had stated:

“Having regard to all of these issues, the Court is satisfied beyond reasonable doubt that, at the very least, the fare receipts are inaccurate and, therefore, do not establish that Paul Murphy was engaged on these fares at the times asserted, if at all.”

247. We were referred to this Court’s judgment in People (DPP) v. Power [2018] IECA 119 and to the Supreme Court’s judgment in DPP v. AMcD [2016] IESC 71, in support of an argument that records produced electronically or mechanically may only be relied upon if there is also evidence concerning the function and operation of the equipment and system that generated them, and of the fact that it was working properly at the relevant time.

248. In response, counsel for the respondent points to the following evidence. On the 22nd of February 2016 this appellant made a statement to Detective Garda Alan Crummey giving a detailed account of his movements on the 5th of February 2016, he stated that he recalled the date and confirmed that he began work in his taxi at approximately 10 am or

10.30 am that morning and further stated that receipts for the fares he had taken during the course of his work on the 5th of February 2016 could be located in the pocket of the driver’s door of the Avensis taxi vehicle 07 D 45775 which he had been driving on that date. He said:

“I can't remember any specific jobs that day but more than likely there's receipts for them in the door of the car. I only clean them out at the end of the week so they should still be there. The receipts will show the date, time and cost and how long the journey lasted. They are printed off automatically and most people don't take them. Only business people keep the receipts.”

249. During a cautioned interview on the 9th of March 2016, this appellant was shown a copy of the receipt till from his Avensis taxi vehicle, and he accepted that this was the till receipt associated with his vehicle and that it displayed eleven fares between 10.42 and 16.22.

250. During interview on the 31st of May 2016 receipts located in the Toyota Avensis vehicle relating to fares recorded to have taken place on the 5th of February 2016 were shown to this appellant and he confirmed to interviewing gardaí that the receipts appeared to be the type of ticket that came from his taxi meter.

251. It was submitted that the second named appellant volunteered the existence of receipts for taxi fares undertaken on the 5th of February 2016 at the time of his first interaction with gardaí in respect of the investigation. At no time during this or subsequent interviews did this appellant suggest that there may be inaccuracies in the details recorded on the receipts, nor was there any defence request to examine the taxi meter. The respondent submitted that the Court was entitled to have regard to the physical receipts that were recovered from the Toyota Avensis vehicle seized from the appellant on the 19th of February 2016. It was further submitted that the appellant sought to rely on the dates and times of the receipts, and this is of significance as he sought to use same as a basis to place him elsewhere at the relevant time.

252. We think that the points raised by counsel for the respondent are points well made, and we are satisfied that the SCC was entitled in those circumstances to have regard to, and to rely upon, the taxi fare receipts in the manner in which it did. We find no error on the trial court’s part in that respect and accordingly also reject ground of appeal no 31.

Other contentions as to findings unsupported by evidence

253. Yet other contentions are made as to findings allegedly insufficiently supported by evidence, or which were said to be in disregard of aspects of the defence case, in grounds of appeal no’s 32, 33 and 34, respectively, and specifically findings relating to the making of phone calls by the second named appellant while at Buckingham village to Eddie Hutch; findings placing the second named appellant’s Avensis at Buckingham village at certain times (said to be contradictory of other findings); and findings that the second named appellant was driving the Avensis taxi concerned at Buckingham Village. We find it unnecessary to further particularise these complaints, or to review the arguments in support of them in extenso because having considered the transcript and the documentary exhibits in the case we are also satisfied that they amount to no more than asserted disagreement with the findings at issue. However, we are satisfied in each case that there was sufficient evidence, of an express nature or alternatively arising by justified inference from other evidence, to support those findings. Further, in so far as a claim is made of contradictory findings in the SCC’s judgment, we do not accept that such contradictions exist. Rather the willingness of the SCC to make positive identifications of the Avensis in some instances on the basis of being satisfied that distinguishing markings were apparent from the footage then being considered, and its unwillingness to do so in other (different) instances where, comparing other segments of footage, it was not satisfied that distinguishing markings were apparent, is indicative of the care taken by the trial court, and its assiduousness, in evaluating the evidence on each issue, and is not indicative of a contradictory verdict. We are satisfied in the circumstances that grounds of appeal no’s 32, 33 and 34, respectively, on behalf of the second named appellant are also not made out, and we dismiss each of them.

General complaints concerning the correctness of the judgment of the Special Criminal Court

254. These complaints are to be found in grounds of appeal no’s 35, 36, and 37, on behalf of the second named appellant. They represent a non-specific complaint that an application on behalf of the second named appellant for a direction was wrongly refused, and complaints of failures to apply the law with respect to the presumption of innocence, the onus of proof, and the standard of proof. Further, the earlier complaint that the SCC failed to engage with the defence case is reiterated, and it is said that it erred in rejecting the defence case and failed to give adequate reasons for doing so.

255. We are satisfied to reject each of these complaints as being without foundation. We have considered the transcript in so far as it is relevant to the direction application and it is manifest to us that, taking the prosecution’s case at its high water mark at that stage, there was clearly a case on foot of which a properly instructed jury (or in this case the SCC acting as a tribunal of fact instead of a jury) could convict. Further, we have considered the judgment of the SCC in detail, and it is manifest to us that the SCC properly instructed itself as to, and had due regard to, the relevant legal principles to be applied. There is no basis for saying that the SCC failed to engage with the defence case.

It is true that the SCC rejected the defence case, which they were fully entitled to do, and contrary to what has been asserted on behalf of the second named appellant they provided detailed and cogent reasons for their rejection of the key facets of his case.

Accordingly, we also dismiss grounds of appeal no’s 35, 36, and 37, respectively on behalf of the second named appellant.

Conclusion and Summary

256. As we have not been satisfied to uphold any of the grounds of appeal advanced by either party, whether shared in common or advanced as applying to an individual appellant only, the appeals of both appellants against their respective convictions are dismissed.