Court of Appeal dismisses appeal against murder conviction, upholding trial court's finding of common design based on circumstantial evidence.

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THE COURT OF APPEAL Neutral Citation: [2025] IECA 300 Record Number: 113/21 McCarthy J.

Kennedy J.

Burns J.

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT -AND-

LEE CANAVAN APPELLANT

JUDGMENT of the Court delivered on the 19th day of December, 2025 by Ms. Justice Tara Burns

1. This is an appeal against conviction. On 20 May 2021, the appellant was convicted by the Special Criminal Court of the murder of David Douglas on

1 July 2016 contrary to common law, and criminal damage of a Suzuki Swift motor car on 4 July 2016, contrary to s.2 of the Criminal Damage Act, 1991.

Background

2. On 1 July 2016, David Douglas was murdered at his partner’s retail shop on Bridgefoot Street, Dublin 8. At approximately 4.11pm, an individual wearing dark clothing entered the premises and shot the deceased a number of times before escaping on foot. The gun which was used, and which had its serial number removed, was left beside the deceased’s body at the scene. The gunman was conveyed to the location in a stolen Mercedes CLA 220 which parked around the corner from the retail shop on Oliver Bond Street. The shooter walked to the scene of the shooting, shot the deceased, and then ran back to the parked Mercedes before getting into the passenger seat. The Mercedes proceeded, at speed, to an area close by, namely Carman’s Hall, off Francis Street. The two occupants of the Mercedes got out, set the Mercedes alight, and then got into a stolen Suzuki Swift which was parked beside the area where the Mercedes was burnt out. The Suzuki Swift left the area travelling in the direction of Meath Street.

3. The respondent’s case was that the driver and passenger of the Mercedes swapped positions when entering the Suzuki Swift, relying upon an eyewitness account which was adduced before the trial court pursuant to s. 16 of the Criminal Justice Act 2006 (‘the 2006 Act’). The implication to be drawn from this evidence was that the shooter became the driver of the Suzuki Swift.

4. However, having admitted the statements of the eyewitness into evidence, the trial court ultimately excluded this portion of the eyewitness’s account from its deliberations due to the fact that the appellant was unable to conduct an effective cross examination of this witness.

5. CCTV footage tracked the car through the South City Centre, after it left the Carman’s Hall area. A depiction of the car at 16.19 showed the driver wearing a red top. The last sighting of the Suzuki Swift on 1 July was at the Merrion Gates at 16.34 when it was being driven by a person with a red top. The passenger of the Suzuki Swift was identified as Gareth Brophy (the appellant’s half brother).

6. On 4 July 2016, the Gardaí received a report of a Suzuki Swift having been set on fire in a car park on the Strand Road, Sandymount. On their way to investigate this report, the guards stopped a Mitsubishi Mirage which was travelling at speed on Parnell Road, Dublin 12. Nathan Foley was driving the Mitsubishi and the appellant, who was ducking down behind the driver’s seat, was in the back passenger seat. A strong smell of petrol emanated from the car. Evidence was led that a Mitsubishi had been at the scene of the attempted arson of the Suzuki Swift; that the Mitsubishi had rammed the Suzuki Swift; and that the persons who attempted to set the Suzuki Swift alight, had departed the scene in a Mitsubishi car.

7. Subsequent forensic analysis of the paintwork of both cars confirmed contact between them.

8. A Ford Fiesta was also involved in the operation on 1 July. Apart from being used for transporting the various actors involved in the murder of the deceased to different locations in the course of the day, it also was involved in carrying out surveillance at the shop where the murder occurred on three separate occasions during the day. Subsequent forensic examination of this vehicle discovered a fingerprint on the rear-view mirror which matched the appellant’s left thumb.

9. The appellant was identified by two members of An Garda Síochána from CCTV footage relating to 1 July, which was gathered in the course of the investigation. Garda McAvinue identified the appellant getting out of the Ford Fiesta and entering the Timgad Grocery Shop on the South Circular Road at 10.44. He was wearing a red top, light coloured trousers, black and white runners and had a bag draped across his shoulder. Detective Sergeant Whitelaw identified the appellant entering Little Caesar’s restaurant on the evening of 1 July 2016 in the company of Frederick Thomson. Nathan Foley later entered this restaurant and joined the group the appellant was with.

10. Other individuals were identified as being involved in the criminal enterprise from CCTV footage relating to the movements of the various vehicles of interest. Frederick Thompson was identified as the driver of the Ford Fiesta at 16.10 on 1 July at a location close-by to the scene of the shooting. As already indicated, Gareth Brophy was identified as the passenger of the Suzuki Swift as it passed the Merrion Gates at 16.34 on 1 July 2016. Nathan Foley was the driver of the Mitsubishi when it was stopped by the guards on 4 July. He also had been identified in a mobile phone shop on 1 July when he purchased two mobile phones and two sim cards

11. The case against the appellant was a circumstantial case involving CCTV evidence relating to the movements of these four motor vehicles together with their occupants; identification evidence of the appellant from CCTV footage by two members of An Garda Síochána; and forensic evidence.

12. The respondent asserts that her case at trial was that the appellant was one of a number of people involved in the planning and execution of the deceased’s murder and that the appellant was involved in a common design to achieve this aim. Within the context of a common design, it also was her contention that the appellant was the gunman. This was based on the following facts: the appellant, when identified by Garda McAvinue, was wearing a red top on the morning of 1 July; the eyewitness account of the burning out of the Mercedes referred to the transfer of roles between the driver and the passenger of the Mercedes, so that the passenger (and gunman) in the Mercedes became the driver of the Suzuki Swift; and the fact that CCTV footage depicted the driver of the Suzuki Swift, in the aftermath of the burning out of the Mercedes, wearing a red top.

13. Counsel for the appellant takes issue with the assertion that the respondent’s case was one of common design and asserts that the case, as

opened, was one of direct involvement of the appellant in the murder, by the nomination of him as the gunman.

14. Ultimately, the trial court determined that it was not satisfied that the appellant was the gunman. However, it was satisfied that the appellant was part of a common design to murder the deceased and to cause criminal damage to the Suzuki Swift.

Determination by the Trial Court

15. Having considered the CCTV evidence extremely carefully, the facts found as established by the trial court relating to the 1 July 2016, can be summarised as follows:-

• The Ford Fiesta and the Suzuki Swift were travelling in convoy from Kimmage crossroads towards Lullymore Terrace, Dubin 8 at approximately 9.45 whereupon, the Suzuki Swift was parked on St Anne’s Road South at 9.55 (around the corner from Lullymore Terrace);

• The Mercedes and the Ford Fiesta travelled towards Merton Avenue, Dublin 8 at approximately 10.40. (Of note, St Anne’s Road South and Merton Avenue are in close proximity to each other). The Mercedes was parked on Merton Avenue. The driver of the Mercedes, who was wearing a red top, light coloured trousers, had a bag strapped across his shoulder, and was carrying an umbrella, got into the passenger side of the Ford Fiesta before it drove away from this location;

• The person wearing the red top who got into the passenger side of the Ford Fiesta at Merton Avenue, subsequently got out of the Fiesta to get a parking ticket for the Mercedes which he placed on the Mercedes before re-entering the Ford Fiesta;

• The trial court was satisfied as to the identification by Garda McAvinue of the person who got out of the Ford Fiesta at the Timgad Shop on the South Circular Road (close-by to Merton Avenue) at 10.44, as the appellant.

• Arising from this identification of the appellant, the trial court was satisfied that the appellant was the driver of the Mercedes which had just been parked at Merton Avenue;

• The Mercedes remained parked on Merton Avenue until 15.55, shortly before the murder;

• The Suzuki Swift was parked on St Anne’s Road South for, at least, considerable portions of the day and a parking ticket was placed on it at approximately 13.51 which permitted parking until 16.51.

• The Ford Fiesta was sighted at Lullymore Terrace at 13.48, having travelled from the direction of Kimmage. The Fiesta pulled in on Merton Avenue (where the Mercedes was parked) and the driver, who was wearing a red top and light-coloured bottoms, attended at the Pay and Display machine before returning to the Fiesta. The Fiesta was then tracked through the inner city on CCTV footage and was sighted in the vicinity of the location of the murder at 14.19. Having regard to the parking ticket which was placed on the Suzuki Swift to permit parking between 13.51 and 15.41, the trial court was satisfied that the only reasonable inference to be drawn from those facts is that the person in the Fiesta returned to the Suzuki Swift and Mercedes to ensure that both cars had valid parking tickets before leaving them at their parked locations until shortly before 4pm. The occupant of the Fiesta then carried out a surveillance check on the shop where the deceased was later murdered.

• The Mitsubishi was sighted at 13.39 on Meath Street. Nathan Foley emerged from the car and proceeded into CellHub where he purchased two mobile phones and two sim cards. He then drove the Mitsubishi towards Thomas Street.

• The Mitsubishi arrived to Merton Avenue at 15.54. Three occupants exited the Mitsubishi. Two of the occupants got into the parked Mercedes carrying a red container, which the trial court was satisfied was accelerant, with the third person returning to the Mitsubishi.

• The Mercedes and the Mitsubishi drove off towards the city. The Mitsubishi turned right. The Mercedes was captured at 15.55 turning onto Donore Avenue, following the Ford Fiesta. It proceeded to St Anne Street South where the Suzuki Swift was parked. The trial court determined that the only reasonable inference to be drawn was that an occupant of one of these vehicles got into the Suzuki Swift. The Mercedes and the Suzuki Swift than proceeded to drive towards Carmen’s Hall. The trial court drew the inference that the Suzuki Swift was parked in the area of Carmen’s Hall to await the return of the Mercedes after the murder was carried out.

• The Ford Fiesta was again captured outside the retail shop where the murder was committed at 16.08. The trial court was satisfied that the only reasonable inference to be drawn was that this was to carry out surveillance. At 16.10, the Fiesta was parked on Meath Street. CCTV footage depicted the occupant getting out of the fiesta and breaking up what appeared to be a mobile phone. He gave it to a woman with whom he was speaking. This person was identified as Frederick Thompson.

• At 16.08, the Mercedes was captured travelling onto Oliver Bond Street. At 16.11 a person, wearing black, was seen walking away from the car towards Bridgefoot Street. This was the gunman. The person was subsequently seen returning to the Mercedes which was then driven at speed to Carman’s Hall where it was burnt out. The Suzuki Swift had been parked at that location and the occupants of the Mercedes left the scene in the Suzuki Swift.

• The Mitsubishi was seen driving around the general area of the shooting and the location where the Mercedes was burnt out between

16.00 and 16.30. The trial court determined that the inescapable

conclusion was that the Mitsubishi had driven past the retail shop less than 10 minutes before the deceased was shot and then proceeded to drive around the block at Carman’s Hall, 10 to 15 minutes after the Mercedes was set alight.

• The Mitsubishi was parked in Mercer Street Car park on 1 July at

19.30 by Nathan Foley. The appellant emerged from the vehicle before it was parked. Nathan Foley then joined a group, which included Frederick Thompson and the appellant, in Little Caesar’s Restaurant. It was not moved again until 16.30 on 4 July.

16. With respect to the attempted arson of the Suzuki Swift on 4 July 2016, the trial court was satisfied that the appellant was involved in a common design to burn out the Suzuki Swift, so as to destroy any forensic evidence which may have connected him to the murder.

17. Having made these findings of fact, the trial court determined as follows:-

“[T]aking into account all of the above evidence … the Court is satisfied beyond reasonable doubt that Mr Canavan's activities in driving or being the occupant in the various vehicles is incapable of innocent explanation based on friendship or familiarity with others. Mr Canavan drove the Mercedes to Merton Avenue. This Mercedes was used to convey the gunman to the scene of the shooting. He was a passenger in the Fiesta, the same vehicle that accompanied the Mercedes after it left its parking place at Merton Avenue shortly before 4 o'clock, as can be clearly seen in good quality CCTV footage at Lullymore Terrace. And just to clarify, he was seen as a passenger in that vehicle in the morning time. This vehicle was observed in the area of Shoestown on a number of occasions during the day. Further, when viewed in the context of the events of the 4th of July, as found by the Court above, the inevitable conclusion and the only reasonable inference to be drawn is that Mr Canavan was part of an attempt to destroy evidence, being the Suzuki, which the Court is satisfied had the potential to link him to the events of the 1st of July 2016.

The Court is satisfied that the person who was seen on the Donore Avenue apartments' CCTV getting out of the Fiesta outside the Timgad shop at 10.44 is the same person who got out of the driver's door of the Mercedes and got into the passenger seat of the Fiesta outside the White Swan Industrial Estate on Merton Avenue 3 minutes earlier. And also the same person who went to the pay and display machine on Merton Avenue and back to the Mercedes 4 minutes later before getting back into the Fiesta and leaving the Merton Avenue area. The Court is also satisfied that he is the same person who was visible earlier that morning on Lullymore Terrace driving -- Lullymore Terrace CCTV driving the Suzuki Swift at 9.55. The same person who is a passenger in the Ford Fiesta when it returns to the area and is visible on Lullymore Terrace CCTV at 13.48 and is visible getting out of the Fiesta on Merton Avenue at 13.54 with the black umbrella and going to the pay and display machine to the Mercedes and returning to the Fiesta. The only reasonable inference that can be drawn is that the same person who drove the Suzuki Swift to St Anne's Road in convoy with the Fiesta subsequently drove the Mercedes to Merton Avenue and was centrally involved in the placement of those vehicles in areas not covered by CCTV for the day of the murder and returned there around lunchtime to feed the meters for both cars to ensure that they would be available later in the afternoon for the murder. The passenger from the Fiesta who emerges wearing a red top, lightcoloured soled runners and with a bag around his shoulder outside the Timgad shop at 10.48 on the Donore Avenue Apartments is identified by Garda McAvenue and the Court accepts is the accused, Mr Canavan. Mr Canavan's fingerprints were found in the Fiesta which corroborates the that he was a passenger both after parking the Suzuki and the Mercedes and ensuring their parking tickets were paid up that day. Mr Canavan is linked to the missing Mitsubishi Modarc. He got out of that car outside the Q-Park and on the night of the 1st of July when he was -- and, also, he was arrested in it on the 4th of July.

The Court is satisfied that this murder was meticulously planned and that a number of persons were involved in surveillance, positioning of vehicles and the potential destruction of evidence after the murder. The essence of joint responsibility for a criminal offence is that each accused share the intention to commit the offence and took some part in it, however great or small, so as to achieve that aim. The movements of all the cars during the day support the inference that the murder was meticulously planned and carried out. The Court is also satisfied that … the only reasonable inference to be drawn from the movements of the vehicles in the area of Bridgefoot Street prior to the shooting is that the occupants of those vehicles were involved in reconnaissance of the area as part of the common enterprise.

As stated, the Court is not satisfied that the activities of Mr Canavan on the 1st of July 2016 are capable of innocent explanation based on friendship or association with others. Rather, the Court is satisfied that the only reasonable inference to be drawn from the evidence in its entirety is that Mr Canavan was intimately connected and involved in the careful planning and execution of the murder of Mr Douglas. He was centrally involved in the movement of the Suzuki and Mercedes that morning before the murder and he was involved in feeding the parking meter that lunchtime. He was seen at Little Caesar's restaurant after the murder with Mr Thompson and Mr Foley. Lee Canavan was also part of the common design to set fire to the Suzuki Swift on the 4th of July 2016. There is nothing in this evidence from which -- or on the evidence which the Court has considered whereby it could be inferred that he was not part of the agreement to kill or to cause serious injury to Mr Douglas and that the murder went beyond the scope of that agreement.

Giving the accused the benefit of the doubt, however, the Court is not satisfied that he was -- that it has been established beyond reasonable doubt that he was the gunman or that he drove the getaway Suzuki.

The Court is nevertheless satisfied, as it has said, that the only reasonable inference from the activities during the morning and lunchtime on the 1st of July, his presence at Little Caesar's and the activity at Sandymount on the 4th of July is that Lee Canavan shared the intention to murder David Douglas and his participation amounted to active participation in the execution of the joint enterprise so as to render him criminally responsible for all of the acts done in pursuance of it. Further, the Court is satisfied that this is entirely consistent with and supports the Court finding that the accused was part of a joint criminal enterprise to cause criminal damage to the Suzuki.”

Grounds of Appeal

18. By notice of appeal dated 19 March 2025 the appellant indicated his desire to appeal his conviction on the following grounds:-

1. “Allowing the admission of CCTV challenged by the Applicant in voir dire.

2. Allowing the admission of two statements made by [the eyewitness] of the 1st of July 2016 and 4th of July 2016, respectively, in evidence in accordance with the provisions of section 16 of the Criminal Justice Act 2006 challenged by the Applicant in voir dire.

3. Failing to exclude the evidence of [the eyewitness] in its entirety.

4. Allowing the admission of identification evidence by Garda McAvinue, challenged by the Applicant in voir dire.

5. Allowing the admission of identification evidence by Detective Sergeant Whitelaw, challenged by the Applicant in voir dire.

6. Affording significant weight to the identification evidence of Garda McAvinue.

7. Finding that the identification of the accused by Detective Sergeant Whitelaw was reliable.

8. Failing to accede to the defence application for a direction.

9. Finding that general association with others was indicative of guilt.

10. Finding that the Applicant had the requisite mens rea for murder.

11. Convicting the applicant of murder in circumstances where the prosecution had opened the case on the basis that the Applicant was the person who literally pulled the trigger, yet this was not proven to the satisfaction of the Court.

12. Convicting the Applicant of criminal damage given the evidence.”

19. At the oral hearing before us, it was indicated that the appellant was no longer pursuing Ground 1.

20. In respect of Ground 2, Counsel on behalf of the appellant accepted that there was no reality to pursuing this ground of appeal. Whilst he maintained that a legal issue arose in relation to the admission of a statement of a witness into evidence, pursuant to s. 16 of the 2006 Act, in circumstances where the witness professed not to recall the events at issue meaning that a fulsome cross examination could not be conducted, in circumstances where the trial court ultimately excluded the significant evidence against the appellant contained in that statement from their deliberations, it could not be established that a legal error arose which effected the safety of the conviction.

21. This was an advisable course for the appellant to take in light of the exclusion by the trial court from its deliberations of the assertion by the eyewitness that the driver and passenger in the Mercedes switched places when getting into the Suzuki Swift. In light of the concession by the appellant, we will not consider this ground of appeal further.

Discussion and Determination Identification Evidence of An Garda Síochána

22. The appellant sought to argue that the identification of the appellant by Garda McAvinue at the Timgad Shop and by Detective Sergeant Whitlaw at Little Caesar’s Restaurant should not have been admitted into evidence because of the failure to keep adequate notes detailing the manner of identification and because of the inherent frailties in the evidence given by the respective guards.

23. The recent Court of Appeal cases of DPP v. McSweeney [2024] IECA 205 and DPP v. McHugh [2024] IECA 176, make clear that any issues arising with respect to the identification of an accused from CCTV footage are matters for the fact finder to consider rather than the trial court to determine, except in exceptional circumstance. Charleton J stated at paras

1 and 15 of his judgments in McHugh:-

“1. […]. Identification of a suspect, whereby a witness testifies that they saw him or her either committing a crime, or close in time and proximity to the scene of a crime, or a chain of events leading to or from a crime, thereby potentially linking that person directly or by inference to the commission of a crime, is a question of fact.

Identification is not a question of law. Hence, the circumstances whereby identification evidence becomes so infirm as to legally enable its exclusion from the consideration of a jury, are extremely rare. Jury trial, whereby citizens sworn to the task of deciding if the prosecution have proven a charge against an accused, find facts, is the forum mandated for serious criminal cases by Article 38.5 of the Constitution. Respect for that constitutional arrangement informs the entire of the law of evidence.

…

15. Rare cases may very occasionally occur, as in Meleady, where evidence of identification is so tainted as to require exclusion. Such cases should clearly be capable of discernment from the trial documents; for instance, a video shows no image or the image shown is of a person all of whose features are distorted by disguise and where there is not, at the same time, any other means of identification such as through distinctive marks or by voice. These are merely examples.”

24. In the instant matter, the trial court determined that the CCTV footage was to be admitted into evidence. The footage at issue was not of the exceptional nature referred to in McHugh which might render the evidence inadmissible, such as where the features of the person depicted on the CCTV could not be made out at all. The trial court described this CCTV footage as of “good quality”. Having been asked to view the CCTV footage by Counsel for the appellant, we do not demur from that description.

25. The issues which the appellant sought to canvass regarding the evidence of identification of the appellant by two members of An Garda Síochána are all matters which go to the weight of the evidence of identification given by these two guards and in no way are a reason to render the evidence inadmissible. These were matters for the trial court to consider in its role as fact finder in this matter.

26. In so far as Counsel for the appellant has relied on DPP v. Murphy [2023] IECA 330, as support for the proposition that the procedures governing identification of an accused by a member of An Garda Síochána from CCTV must be established as fair, we are of the opinion that this does not represent the law in this jurisdiction in light of Sweeney and McHugh and that such issues are not relevant to the question of admissibility.

27. Accordingly, the grounds of appeal relating to the identification issues are dismissed.

Effect of Court not accepting that the Appellant was the Gunman - Grounds 8, 9, 10, 11 and 12

28. Counsel on behalf of the appellant indicated that he intended to make submissions with respect to grounds 8, 9, 10 and 11 on a global basis. The basis of his argument in respect of all of these grounds was that the trial court was not satisfied that the appellant was the gunman as had been asserted by the respondent. Counsel for the appellant submitted that this determination had a number of consequences.

29. In the first instance it was asserted that it was not open to the trial court to proceed to determine that the appellant was guilty of murder on the basis of a common design as this had never been the position of the respondent. It was submitted that this created an unfairness for the appellant, as the case which the appellant sought to challenge was one of him being the gunman. He had not sought to challenge a case of him being involved in a common design to commit murder as he had no notice that this was the case being made against him.

30. In addition, it was submitted that the evidence did not establish that the appellant was involved in a common design to murder the deceased. It was argued that at its height, the evidence only established that the appellant was involved in some nefarious activity involving the movement of vehicles, but evidence to establish a plan to kill or cause serious harm to the deceased which the appellant was part of was not adduced.

31. Further, it was submitted that in light of the fact that the case was a circumstantial case, the trial court failed to exclude all alternative rational hypothesis, to include other criminal activity, in relation to the appellant’s proven actions.

Assertion that Common Design not the respondent’s case

32. The appellant complained that in circumstances where the trial court was not satisfied beyond reasonable doubt that the appellant was the gunman (the prosecution having opened its’ case on this basis), it was not available to the trial court to return a verdict of guilty on the murder charge on the basis of common design, as this was not the respondent’s case. In addition, it was asserted that an unfairness arose in the trial, as the case which the appellant came to meet was one of him being the gunman. His challenge to the evidence adduced against him was on that basis. He did not challenge the respondent’s case on the basis that he was involved in a common design to murder the deceased as he had no notice of this.

33. The respondent submitted that it was always the respondent’s case that the appellant was part of a common design to murder the deceased.

Regarding the assertion that the appellant was the gunman, it was submitted that this was the logical inference from the statements contained on the Book of Evidence. However, in circumstances where that portion of these statements from which that inference could be drawn were not ultimately relied upon by the trial court, this did not mean that there was no case against the appellant. It simply meant that that logical inference was no longer available to the respondent. However, the case that the appellant was part of a common design remained available to the respondent to be determined by the trial court. It was also submitted that no unfairness arose for the appellant by virtue of the fact that the trial court proceeded to consider a case of common design when this always was the respondent’s case as reflected in the book of evidence served on the appellant.

34. In opening the case, Counsel for the respondent said the following:-

“It’s clear, and the evidence will establish, that neither killer nor driver of the Mercedes could have operated alone on the day, nor did they and two further vehicles were of particular relevance and used as spotter cars and for logistical support in the planning and execution of the murder. One of these being the blue Mitsubishi Mirage … and fourthly a silver Ford Fiesta… and the prosecution case will be that the four vehicles and their occupants were manifestly operating in concert throughout the day in the planning and execution of the murder and an understanding of the case will require an understanding of the movement of a number of vehicles and persons throughout the day and the bringing together of these strands of evidence leads inexorably to the conclusion that this killing was carefully, meticulously planned where a variety of roles were assigned and tasks allocated to ensure that Mr. Douglas would meet his death in the circumstances which he did.

… So the accused is forensically connected to the blue Mitsubishi and the silver Ford Fiesta. He is identified during the course of the day through CCTV footage. He is clearly identified getting out of the

Mitsubishi with his confederates after the event and undoubtedly engaged in the final act of this plan to wit the destruction of the getaway vehicle, the Suzuki. Mr Canavan was intimately connected to the secreting and ultimate deployment of the murder car and the Court will be asked to infer from the evidence that the accused, and others acting together, in a carefully planned assassination of another human being and that the logical inference to be drawn from the evidence is that Mr Canavan was the person who literally pulled the trigger and that is the prosecution case.”

35. It is apparent that the appellant mischaracterises the respondent’s actual position when opening the case in relation to the appellant being the gunman. Counsel for the respondent suggested that the logical inference on the evidence was that the appellant was the gunman rather than there being evidence which positively established that fact. However, in addition, Counsel for the respondent made it unequivocally clear that the respondent’s case was that the murder of the deceased was a carefully planned assassination involving many actors, including the appellant.

Accordingly, the question of a common design existing amongst a number of people to murder the deceased was always part of the respondent’s case and was stated to be such. Whilst the inference that the appellant was the gunman was no longer available to the respondent, once the trial court did not accept the evidence of the eyewitness in terms of the position of driver and gunman being swapped when moving from the Mercedes to the Suzuki Swift after the murder, this did not detract from the respondent’s case that the appellant was involved, with others, in planning and effecting an assassination of the deceased. Accordingly, there simply is no merit to the suggestion that the appellant was unaware that the case against him was one of common design. While the role which was attributed to him within that common design, by logical inference from the evidence, was rejected by the trial court, the case of involvement in a common design to murder the deceased remained.

36. Furthermore, while the role of being the gunman was ascribed to the appellant by Counsel for the respondent in his opening speech, arising from a logical inference from the proposed evidence, other evidence in the case established the appellant’s involvement throughout the day in the execution of a careful and detailed plan. All of this evidence was served on the appellant and he had full notice of it. As in any case, something said by prosecuting counsel in opening a case, may not ultimately be proven (for various reasons). This does not have the automatic effect that simply because that element of the proofs has not been established or accepted, that the remaining case falls away.

37. Accordingly, we are of the opinion that the respondent’s case was that the appellant was part of a common design and was stated on her behalf by her Counsel to be so. While her attribution to him of being the gunman was not accepted by the trial court, a case of common design had always been notified to the appellant. The specific role assigned to him was not established, but that does not have the legal effect that the trial court could not proceed to consider whether a case of common design simpliciter had been made out. No unfairness arose for the appellant as the rejection of the proposition that he was the gunman could not, on the proposed evidence, mean that a case of a common design simpliciter was not available. Indeed the case was closed by the respondent on the basis of common design, and whilst it was unknown at that stage that the trial court would reject the evidence relied on by the respondent to establish the logical inference that the appellant was the shooter, no objection or application was made by the appellant asserting that this was a new and different approach regarding the appellant’s involvement in the murder.

38. Accordingly, we are of the opinion that the rejection by the trial court that the appellant was the gunman did not have the effect that the trial court was prevented from considering whether the appellant was guilty of the murder of the deceased by virtue of being involved in a common design to achieve that end. Furthermore, no unfairness arose by virtue of the trial court considering the case against the appellant on the basis of common design simpliciter.

Direction Application should have been granted

39. The appellant submitted that pursuant to the principles established in R v.

Galbraith (1981) 1 WLR 1039, and further illuminated in DPP v. M [2015]

3 JIC 2711, the trial court erred in not directing a verdict of not guilty against the appellant because without an acceptance that he was the shooter, the circumstantial evidence adduced could not establish a common design to murder the deceased.

40. That argument can be dealt with briefly. The evidence of the movement of the four vehicles on the day of the murder together with the identification of the appellant wearing particular clothes, to include a red top, was of sufficient strength to enable the matter proceed for jury consideration, as it was possible that a jury properly charged could return a verdict of guilty in relation to both counts.

Perverse Verdict

41. Whilst the appellant does not positively assert that the verdict of the trial court was perverse, in reality, that is his position. He asserted that in considering the circumstantial evidence in the case, there was an obligation on the trial court to discount all other rational hypothesis of other activity being carried out by the appellant (to include nefarious activity), before concluding that the evidence established that the appellant was involved in a common design to murder the deceased. He submitted that where the evidence established a friendship between the appellant and the other identified participants in the asserted common design, and the appellant previously being involved with the other participants in suspicious circumstances, a rational hypothesis of the appellant assisting the participants to some degree, without being part of the common design to commit murder, arose. It was submitted that the trial court failed to engage in this analysis and did not discount this rational hypothesis. Counsel for the appellant opined that the activities, as found by the trial court to have been engaged in by the appellant on 1 July, was more akin to the type of behaviour covered by s. 72 of the Criminal Justice Act, 2006, namely participating in an activity which facilitates the commission by a criminal organisation of a serious offence rather than establishing that the appellant was involved in a common design to murder the deceased.

42. The trial court set out the various strands of evidence which it relied on in determining the appellant’s guilt on both charges. Having regard to the facts as found by the trial court, particularly: the specific movements of the four vehicles throughout the day; the appellant’s identification in particular clothing on the morning of the murder; the appellant’s involvement throughout the day with the vehicles, as found by the trial court; the surveillance activities of the Fiesta on three occasions during the day; the movements of the vehicles around the time of the shooting where all four vehicles were acting in concert to support the commission of a murder; and the appellant’s involvement in the attempted arson of the Suzuki Swift on

4 July, a rational hypothesis that the appellant was not part of a common design to murder the deceased, but instead was involved in some other nefarious activity, simply does not arise. In addition, the trial court specifically considered the submissions made on behalf of the appellant regarding associations and friendship with the other identified participants, and found that this hypothesis was not rational.

43. We are of the opinion that it was open to the trial court to determine that the appellant was involved in a common design to murder the deceased and to criminally damage the Suzuki Swift and that the verdicts of guilty returned by the trial court on both counts was not perverse.

44. Furthermore, it was not inappropriate for the trial court to have regard to the appellant’s activities on 4 July in considering the appellant’s guilt on the murder charge. The appellant’s argument that reliance on these activities presupposed his involvement in the murder, misunderstands the analysis the trial court was engaged in. As this was a circumstantial case, the trial court was entitled to put all strands of evidence into the evidential mix to then consider the combined effect of the evidence. The fact that the appellant was involved in an attempted burn out of the Suzuki Swift three days after this car carried the gunman away from the scene, was a relevant matter to consider in conjunction with all of the other evidence in the case.

45. Accordingly, the grounds of appeal considered under this heading are dismissed.

Conclusion

46. In circumstances where we have not upheld any of the appellant’s grounds of appeal proceeded with before us, we will dismiss his appeal against conviction.

Approved No Redaction Needed