Court of Appeal dismisses murder appeal; jury deliberation irregularities and verdict breakdown arguments rejected.

THE COURT OF APPEAL

Record No. 315/2012

Birmingham J.

Mahon J.

Edwards J.

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND–

GARRETT O’BRIEN

APPELLANT

JUDGMENT of the Court delivered on the 27th day of June 2017 by Mr. Justice Mahon

1. This is the appellant’s appeal against his conviction for murder and possession of a firearm with intent to endanger life on the 6th

November 2012 at the Central Criminal Court. The appellant was found guilty by a jury following a lengthy re-trial, an earlier trial in

2011 having concluded with a jury disagreement. He was sentenced in respect of both convictions to life imprisonment and ten years

imprisonment respectively.

2. The date of the offences was the 13th March 2009. On that date Mr. Seamus O’Byrne and his partner, Ms. Sharon Rattigan, were

in the process of leaving their home with their young child in Tallaght, Co. Dublin. While Ms. Rattigan was beside her car outside the

garden gate of the house with their young child, and while Mr. O’Byrne was standing on the driveway, a man in dark clothes wearing a

hooded track suit top walked up to him and shot him four times, killing him. Ms. Rattigan then ran towards the gunman in an attempt

to intervene to assist Mr. O’Byrne. As she did so, the gunman shot her in the leg. Nevertheless Ms. Rattigan continued to tackle him

and managed to take the gun off him. They tumbled over the wall into an adjoining garden, and in the course of the struggle the

gunman’s hood was dislodged making his face visible to Ms. Rattigan. Ms. Rattigan let go of the man because her child was screaming

whereupon he then ran off, leaving behind his gun, a red bull can and a mobile phone.

3. The prosecution case was that the appellant was involved in the crime as part of a joint enterprise with Mr. Gary Flynn. Evidence

connecting the appellant with the crime included the red bull can and the mobile phone which were found in the location where the

gunman and Ms. Rattigan struggled. CCTV evidence suggested that the can of red bull was purchased by the appellant in a Spar shop

in Ballymount. Neither DNA or fingerprints were found on the can. The mobile phone belonged to the appellant and had his DNA on it.

While the appellant acknowledged ownership of the mobile phone he maintained that he had lost the phone, or it was stolen from him,

prior to the event in question. Prosecution evidence was also led in relation to the use of certain vehicles, and in particular a

Volkswagan Passat motor car which was found near to the murder scene on the following day and which had in it a live round of

ammunition and a petrol can. It was further alleged that the appellant wore certain clothing which was later found discarded in a Ford

Transit van. It was further alleged that the appellant returned in his Nissan Micra car at about midnight on the date of the killing for

the purposes of seeking to retrieve his mobile phone or to dispose of the car. The appellant was seen on CCTV at the Grosvenor

petrol station in Rathmines at around midnight with his hair shaved off and wearing different clothes. The prosecution allege that the

alteration of the appellant’s appearance was undertaken in order to avoid detection. There was also evidence led in relation to mobile

phone traffic to and from the appellant’s phone.

4. It was the appellant’s case that Mr. Flynn was the killer and that the appellant had no involvement in relation to the crime, or had

any knowledge of it.

5. The following grounds of appeal are promoted on behalf of the appellant, (quoting from the appellant’s written submissions):-.

1.1. The learned trial judge erred in law and in fact in ruling that the arrest of the appellant on the 17th March 2009 at

12, Old Court, Bray, Co. Wicklow, was lawful; that arrest having been executed by Det. Sgt. Tom McManus in

circumstances where gardaí (including Det. Sgt. McManus) entered the residence being in possession of and in stated

reliance upon a search warrant issued by a Garda Superintendent pursuant to s. 29 of the Offences Against the State Act

1939 as amended, the said Superintendent being himself involved in an investigation. Notwithstanding the fact that no

reference whatsoever was made by Det. Sgt. McManus to the effect that he was relying on s. 6(2) of the Criminal Law

Act (1997) to lawfully enter the residence to effect the arrest of the appellant in any of his statements made prior to or

during the first trial of the appellant or even prior to the commencement of the retrial, the learned trial judge accepted

the aforesaid assertion when made for the first time in the course of the trial and thereby erred in law, and/or in fact. The

learned trial judge further erred in law when she ruled that it was not necessary for Det. Sgt. McManus to have actually

invoked s. 6(2) when entering unless his entry was queried or denied notwithstanding the fact that the gardaí were at the

material time present and were already detaining the appellant for the purpose of a search, pursuant to a warrant that

was invalid.

1.2. The aforesaid impugned ruling of the learned trial judge completely overlooked the reality of the case that was

consistently made by the prosecution to establish the lawfulness of the forced entry into the premises by the gardaí. The

unit assigned to enter, secure, search and arrest were at all times operating as a single unit and included Det. Sgt.

McManus. It entered the premises on foot of the s. 29 warrant in circumstances where one of the unit purportedly

subsequently showed the warrant to a family member who resided in the dwelling and who returned home to find the

gardaí searching and detaining her brother, the appellant. The unit collectively thereby used s. 29 to justify their forced

entry by all of the gardaí at the time of entry. No other statutory basis for entry was ever stated to be relied upon by

any of the gardaí present on the premises, including Det. Sgt. McManus. Given that the residence was forcefully entered

by armed gardaí with their weapons drawn and that a s. 29 warrant was subsequently produced, it is wholly unreasonable

to expect that either the appellant or any family member who arrived subsequent to the entry would make enquiry as to

the lawful authority for the presence in the dwelling of each individual member of An Garda Síochána, including the

arresting garda, Det. Gda. McManus. In reality, there can be no other rational conclusion but that the purported reliance

by Det. Gda. McManus on s. 6(2) of the Criminal Law Act 1997 is a post facto assertion utilised to circumvent the fact

that the warrant actually relied upon was an unlawful one and to avoid the consequences for the prosecution case that

would necessarily flow from the fact that the arrest was unlawful. The failure to invoke the aforesaid statutory basis for

his entry at the time of forceful entry or as soon as reasonably practicable thereafter lends support for the foregoing

assertion.

1.3. The learned trial judge erred in law and in fact in ruling that the arrest of the appellant on the 17th March 2009 at

12, Old Court, Bray, Co. Wicklow was lawful notwithstanding the fact that the appellant was in unlawful custody at the

time of his arrest and all of the surrounding circumstances appertaining thereto.

2.1. The learned trial judge erred when, notwithstanding a request for her to do so, which she initially appeared to have

acceded to, failed to make plain to the jury that if they believed that an individual by the name of Gary Flynn was or

might reasonably have been the lone gunman who murdered the deceased, than the appellant was entitled to be

acquitted as the prosecution had not made out or sought to make out any role for the accused in the murder other than

as the lone gunman.

3.1. The learned trial judge erred in refusing the application of the defence who took objection to the admission of the

evidence of Mr. McKenna concerning telephone records. The aforementioned evidence was objected to, inter alia, on the

basis that there was no statutory authority permitting a third party, such as Mr. McKenna, to access and produce

telephone records and data created and retained by the mobile telephone service provider, Telefonica 02.

4.1. As the jury were not required to return a specific verdict as to whether they found that the appellant was the lone

gunman who carried out the murder as distinct from his been guilty by reason of common design/joint enterprise, the

appellant has been unfairly denied of the knowledge as to what role in the murder he has been found guilty of committing

and as a consequence he has been unfairly deprived of the opportunity to make any case before a future parole board

that he was not in fact the gunman. Such circumstances are manifestly unjust and the trial procedure that brought it

about was fundamentally unfair rendering his trial as one conducted otherwise than in accordance with law, in breach of

his constitutional right to a fair trial in due course of law, including his right to fair procedures and in breach of his rights

under the European Convention for the Protection of Human Rights Fundamental Freedoms as incorporated in the

European Convention of Human Rights Act 2003, as amended.

The arrest and entry into 12, Old Court, Bray

6. Section 6 of the Criminal Law Act 1997 provides as follows:-

(1) For the purpose of arresting a person on foot of a warrant of arrest or an order of committal, a member of the

Garda Síochána may enter (if need be, by use of reasonable force) and search any premises (including a dwelling) where

the person is or where the member, with reasonable cause, suspects that a person to be, and such warrant or order

may be executed in accordance with section 5.

(2) For the purpose of arresting a person without a warrant for an arrestable offence a member of the Garda Síochána

may enter (if need be, by use of reasonable force) and search any premises (including a dwelling) where that person is

or where the member, with reasonable cause, suspects that person to be, and where the premises is a dwelling the

member shall not, unless acting with the consent of an occupier of the dwelling or other person who appears to the

member to be in charge of the dwelling, enter that dwelling unless:-

(a) he or she or another such member has observed the person within or entering the dwelling, or

(b) he or she, with reasonable cause, suspects that before a warrant of arrest could be obtained the person will

either abscond for the purpose of avoiding justice or will obstruct the course of justice, or

(c) he or she, with reasonable cause, suspects that before a warrant of arrest could be obtained the person would

commit an arrestable offence, or

(d) the person ordinarily resides at that dwelling.

(3) Without prejudice to any express amendment or repeal made by this Act, this section shall not affect the operation

of any enactment or rule of law relating to powers of search or powers of arrest.

7. On the 17th March 2009 a number of gardaí attended a meeting at Tallaght garda station. The senior officer was Superintendent

Dolan. The purpose of the meeting was to discuss the ongoing investigation into the killing of the deceased and, more particularly, the

suspected involvement of the appellant in that murder. The gardaí believed that the appellant was in 12, Old Court Avenue, Bray, his

sister’s house. A warrant was obtained to search that premises and a number of gardaí then proceeded to travel to that address

whereupon they forcibly entered the house and found the appellant there. Det. Sgt. McManus said he entered the property a couple

of minutes after Det. Sgt. Doyle’s search team had forcibly entered the property. Det. Sgt. McManus had been earlier assigned the

role of arresting the appellant and he gave evidence to the effect that he travelled to Bray with the intention of arresting him under

s. 30 of the Offences Against the State Act 1939 (as amended) for the unlawful possession of a firearm at Tymon North Park,

Tallaght on the 13th March 2009.

8. Det. Sgt. McManus also gave evidence that he believed he had the power under s. 6 of the Criminal Law Act 1997 to enter any

house and arrest a person for an arrestable offence in circumstances where he was satisfied that the person was in the house. He

said that he had this information prior to his arrival in Bray. He said that when he entered a room in the house where the appellant

was seated, the appellant was already in conversation with Det. Sgt. Doyle. He said that he waited for that conversation to end

whereupon he then proceeded to arrest the appellant. He said he was in the house for approximately ten minutes at that stage.

9. Det. Sgt. McManus stated in evidence:-

“..I wouldn’t consider I entered the property pursuant to the warrant. I was aware I had powers to enter the property

more than one power. I was aware that there was a power under the Criminal Law section 6 to enter the property. I

was aware also that there was probably a power under the warrant to enter the property. But if there hadn’t been a

warrant for the property I would still have entered.”

10. Det. Sgt. McManus also stated in evidence that it had never been his intention to participate in the search of the property. He

believed his role to be that of the person assigned to arrest the appellant.

11. On day 14 of the trial, Mr. Kavanagh S.C., counsel for the appellant, applied to the learned trial judge for a direction on the basis

that the arrest of the appellant on the 17th March 2012 was unlawful. Central to this application was that the search warrant was

invalid (a point agreed by the respondent), having regard to the Supreme Court decision in Damache ([2012] I.R. 266), that Det. Sgt.

McManus (the arresting garda) had entered the premises pursuant to that search warrant, that the arrest of the appellant had not

been pursuant to a power of arrest under s. 6 of the Criminal Law Act 1997 and that the constitutional rights enjoyed by the

appellant in relation to his presence in no. 12, Old Court had been breached. The counter argument as submitted by Mr. Owens S.C.,

counsel for the respondent, was that the arrest had been lawfully undertaken by Det. Sgt. McManus pursuant to s. 6 of the Act of

1997, and that the appellant’s constitutional rights had not been breached, as no. 12, Old Court was not, and had never been, the

appellant’s residence, and was, in fact, his sister’s house.

12. The learned trial judge ruled against the appellant. She found that the appellant had been a visitor in no. 12, Old Court, and that

it was not his dwelling. She relied on a number of decisions of the Superior Courts, including DPP v. Bowes, an ex tempore judgment of

the Court of Criminal Appeal delivered on the 25th February 2002. She said:-

“Having found that he is a visitor rather than a person for whom it is his dwelling, I am bound by Bowes and the other

authorities open to me to hold that the accused cannot invoke constitutional rights in respect of the house and the

unlawful entry of the house therefore is a matter between his sister and the gardaí. If I was wrong in that there is also

the argument that the arresting officer, Det. Sgt. McManus, was in fact lawfully in the house on the basis that he was

there to make an arrest and that he was entitled to do that without warrant of any description on the basis of section

6(2) of the 1997 Criminal Law Act. I have the evidence as to what happened at the meeting. I accept he was the

designated officer to make the arrest. That is a common practice in operations of this sort where there is going to be a

large number of gardaí. I have no reason not to accept that his intention was to arrest and that it did not depend on the

premises where Mr. O’Brien was to be found, and indeed that if he had left Old Court Avenue, he, Det. Sgt. McManus,

would have arrested him that day in any event.”

13. The appellant also claims that in reality, he had been under arrest from the moment the gardaí arrived into 12, Old Court Avenue

and not simply from the time of his formal arrest by Det. Sgt. McManus as in reality he was not free to leave during the entire period.

There was no evidence to support the contention that he had in fact been arrested before Det. Sgt. McManus formally arrested him.

The evidence was to the effect that he was in discussion with gardaí for up to ten minutes prior to his formal arrest.

14. In DPP v. Twesigye [2015] IECA 99, it was argued that the appellant has been, in reality, under arrest for approximately fifty eight

minutes before being formally arrested by a garda sergeant during which time he was present inside a house being lawfully searched.

It was the decision of this court in that case, as delivered by Mr. Justice Edwards, that the ruling of the learned trial judge that the

appellant in that case had not been under de facto arrest during those fifty eight minutes was correct. Paragraph 64 of the judgment

states:-

“It is necessary to comment that it is entirely reasonable for members of the gardaí who are about to conduct a search

of a dwelling house to want the householder to be present and available to them, while at the same time to remain in

one location within that premises or in the vicinity so as not to impede the search operation. They may wish to ask

questions of him in connection with facilitating the ongoing search operation, or to explain items found in the search, or

to provide assistance such as locating the key to a locked door, or some locked cupboard door, in the premises. There is

nothing wrong with requesting a householder to remain while a search is being conducted. To do so will not, per se,

amount to the detention of that person. A householder is not obliged in those circumstances to remain but as it is his

home that is being searched it could hardly be regarded as remarkable if, as the evidence suggests occurred in the

present case, such a request was readily complied with. It must also be appreciated that there is no obligation on a

garda who possibly has grounds to perform an arrest, or who has in mind to perform an arrest, to proceed immediately

to effect the arrest. Whether or not a person in whom the gardaí are interested is to be regarded as having been held in

de facto detention during a search will depend on the circumstances of the particular case.”

15. In DPP v. Wilson and Crowley [2015] IECA 275, the facts were broadly similar to those in Twesigye other than that the appellants

argued that they had effectively been detained for approximately fourteen minutes prior to being formally arrested during which time

they were sitting in a car which had been stopped by gardai. In delivering the judgment of the court, Mr. Justice Birmingham said:

“..The present case involves a situation where members of An Garda Siochána engaged occupants of a car in a relatively

brief conversation. It is not suggested that anything of evidential significance arose directly from that conversation. In

those circumstances there is no justification for the suggestion that the appellants were detained. That is not to say

that had the appellants broken off the conversation and sought to leave the scene, that this would not have provoked

action on the part of the gardaí. ..”

16. The court is satisfied the appellant was lawfully arrested by Det. Sgt. Mullins on the 17th March 2013, some ten minutes after his

arrival into the house, and that no de facto arrest or detention had occurred beforehand. A mere assumption that, had he attempted

to leave the house before being formally arrested, he would have been prevented from doing so does not establish that he was

therefore under arrest in the meantime. In fact, the appellant did not attempt to leave the house. The court is also satisfied that no

issue arises as to their breach of the appellant’s constitutional rights as no. 12, Old Court Avenue. Bray was not a property in which

the appellant ordinarily resided, and that he was, in fact, a visitor in his sister’s house at the time.

17. This ground of appeal is therefore dismissed.

The appellant’s role in the murder

18. This ground of appeal is based on the contention that the learned trial judge erroneously failed to advise the jury that in the

event that they believed that Mr. Flynn had been the lone gun man in the murder then the appellant was entitled to be acquitted,

because, it was argued, the prosecution had not made out, or sought to make out, any role for the accused in the murder other than

as the lone gun man.

19. It was the appellant’s case at the trial (and which was also referred to by his counsel in his closing speech to the jury) that Mr.

Flynn who was not then before the court, was the person who murdered the deceased and in support of this contention pointed to

the fact that firearm residue had been detected on Mr. Flynn’s clothing.

20. In the course of her charge to the jury the learned trial judge said:-

“The defence made the case strongly that it points to the role of other persons who are not before the court and

especially Gary Flynn and the defence invites you to take the view and in effect that Gary Flynn was the gunman in this

case. Now, you are not here to tray Gary Flynn and if and when he comes before a court no doubt there will be other

and different evidence in relation to him. You’re here to look at the case of Garrett O’Brien but it is a fair point to make

that other people were obviously involved in this incident. Its suggested that when you look at the footage, particularly

from the shops, that you might come to the conclusion that Mr. O’Brien is innocently associated with these other men

and that he is a gopher, he is out of the loop and he is the one sent to buy the soft drinks and so on. It is something

that you can consider but do bear in mind that if you think he was not innocently associated, it is an explanation that

you should not accept.”

21. Later in her charge, the learned trial judge stated:-

“There is no suggestion that there was a second man with a second gun in the area. It’s the same gun and a man was

shot and a man did die. So if you were to acquit on the murder charge you will acquit on the second charge as well.

Similarly, if you convict you will convict on both.”

22. In relation to this aspect of the charge, a requisition was raised by Mr. Kavanagh in the following terms:-

“…In so far as the reasonable doubt aspect of the matter is concerned, vis-à-vis the gunman, I was going to ask the

court to tell them, in no uncertain terms, that if they had a doubt as to whether or not Flynn was the gunman that

necessarily means that they have a reasonable doubt as to whether Garrett O’Brien was the gunman.”

23. Mr. Kavanagh also said:

“…if, having heard all of the evidence there remains the possibility that Gary Flynn was the gunman, to such an extent that it leaves

them with a doubt in their minds as to whether or not Garrett O’Brien was, Garrett O’Brien must get the benefit of that doubt and

they must acquit him.”

24. Mr. Owens disagreed fundamentally with the proposition put to the learned trial judge by Mr. Kavanagh. Mr. Owens made the case

that what was required was for the jury to consider the evidence against the accused and his involvement in the murder. The fact

that Mr. Flynn may have had firearms residue on his clothing is not proof that Mr. Flynn was the gunman, nor is the absence of

firearm residue on the appellant proof that he was not the gunman.

25. Following further exchanges between Counsel and the learned trial judge, the learned trial judge indicated that she would re-

address the jury on the following basis:-

“..so, in relation to Gary Flynn, I think, Mr. Kavanagh, if I told them that they had to rule on the Gary Flynn it would

suggest to the jury that I think there is more evidence implicating Gary Flynn than there was. I think I have charged

them correctly on the burden of proof and the reasonable doubt and I have mentioned the germaine plank is the

potential role of Gary Flynn. But I think if I was to go further than that and say they have to rule out all other potential

suspects before they can convict this one, I don’t think that’s the way the trial process works.”

26. Mr. Kavanagh seemed to accept this reasoning when he stated:

“I accept what the court is saying.”

27. However the matter was the subject of further discussion between counsel and the learned trial judge on this topic.

28. The learned trial judge than summarised the submissions heard by way of requisition, as follows:-

“Alright. So, firstly the prosecution case is that there was a group of people involved in planning and carrying out this

murder and they point to the evidence that they have adduced to show that concerted planning. The prosecution say

that on the evidence Mr. O’Brien’s role in that plan was to actually carry out the shooting. The question then is, has it

been established beyond a reasonable doubt that there was an agreement, has it been established beyond a reasonable

doubt that he was a party to it and in considering those questions they look at the evidence, if there are two possible

reasons: firstly, do they think he has been associated with those other persons and with this plan. In looking at the

evidence for it, where there are two possible explanations open, they must take the one that favours the accused. If

they consider his association with the other individuals to be innocent, they acquit. If they are in doubt, they acquit, and

its only if they are satisfied beyond a reasonable doubt that he was part of an agreement to carry out the murder that

they convict. ..”

29. However, the exchange between counsel and the learned trial judge did not end there. Some further concerns were expressed by

Mr. Owens. In any event the jury was recalled and re-addressed as follows:-

“Now thank you ladies and gentlemen. The prosecution case here is that there is a group of people involved in planning

and carrying out this murder. They say its not a lone gunman. They say it is this group of people and they say it is Mr.

O’Brien and these other named individuals. They say that on the evidence they have produced Mr. O’Brien was the

gunman because - they point in particular to the phone and the can of red bull at the scene. The question for you

firstly, is do you accept beyond reasonable doubt that there was this plan to murder and do you accept that Mr. O’Brien

was a knowing participant in it. Now the point about being a conspirator or assisting, the look out man is as guilty as the

gunman, the getaway is as guilty as the gunman. That is all well established law. When you are looking - and look at the

evidence and you say firstly is there a plan? Is Mr. O’Brien associated with it? Is it possible that he is innocently

associated with these people and if you look at a particular piece of evidence, having regard to the evidence as a whole,

and you can see an innocent explanation then you take that, but if you accept the prosecution case that there was this

agreement and he was a party to it I think the point that the prosecution are making is, look, there isn’t really any

evidence that he assisted or participated other than by actually carrying out the shooting. So, in a sense the difference

between Mr. Owens opening and closing isn’t really that great. What he has been saying all along is yes, there was a

plot, Mr. O’Brien was part of that plot and his role was to carry out the shooting and that’s what the evidence in the

case points to. If you are in doubt as to whether he was associated with that plot, you acquit. If you think his

association with other persons is innocent, you acquit. But if you think he was a knowing participant in the murder plot

then you convict him. Does that help?”

30. The same theme was again raised by Mr. Kavanagh after the lunch break. His concern at that point was the reference by the

learned trial judge to the use of the words innocent, knowledge and knowing participant. Mr. Kavanagh was concerned that these

words were “unqualified” in the course of what was said to the jury.

31. Ultimately, and finally, the learned trial judge addressed the jury once more. In the course of these final remarks, he emphasised

certain matters, including:-

“…to convict Mr. O’Brien in this case of murder you would have to be satisfied that he was a knowing participant in a

plan to kill or cause (serious harm) to Seamus O’Byrne. A knowing participant means knowing about the plan and

engaging with it and doing something to further the plan. I said to you if you thought there was an innocent explanation

for this association with the other persons that you should acquit or if you were in doubt that you should acquit. I have

been asked to clarify that innocent means innocent of the plot to kill or cause serious injury to Mr. O’Byrne. So when I

use that terminology, when I talk about knowledge, I mean knowledge of the plot. Participation, I mean participation in

the plot. And innocence, I mean innocence of the plot.

The question of joint enterprise as far as Mr. O’Brien is concerned, the prosecution say that he is the gunman and they

point to the evidence in particular of the phone at the scene of the crime and the other matters that I mention to you…

Therefore it is difficult to imagine that you would see him having a different role other than other of gunman. Therefore

you must be satisfied beyond reasonable doubt that he was a participant and that the evidence leads you to that

conclusion if you were to convict him because we don’t have any other role to assign to him and the reason that the

prosecution say this is, as I say, because of the phone and so on and the defence say it has not been established

beyond a reasonable doubt that he was a knowing participant and that there could be innocent explanations in the sense

that I just used, innocent of the plot, for the bits of evidence that the prosecution have put to you..”

32. The learned trial judge made it abundantly clear to the jury that the prosecution case against the appellant was that he was the

gunman who killed the deceased but that, at the same time, he was not acting alone. It was made quite clear to the jury that their

only concern was the evidence, and the strength or weakness of that evidence, as against the appellant.

33. In all the circumstances, there was little more that could have been said by the learned trial judge. If there is any criticism to be

made of the charge and subsequent re-charging of the jury, and the court does not accept that any exists, it is that it unduly

favoured the defence.

34. This ground of appeal is therefore dismissed.

The telephone records

35. This ground of appeal related to the disclosure of certain mobile phone data created and retained by the mobile phone service

provider, Telefonica, 02 Ireland Limited (02). 02 had a service agreement with Villacom, for whom Mr. Brendan McKenna, a senior

consultant engineer, worked. The gardaí sought data from 02 pursuant to the provisions of the Criminal Justice (Terrorist Offences)

Act 2005. Mr. McKenna extracted this information and provided it to the gardaí pursuant to his company Villacom’s contract with 02.

36. Counsel for the appellant argued that Mr. McKenna lacked lawful authority to extract and provide this information as he, in his

capacity as a representative of Villacom, was, in effect, a third party. 02 could not, it was contended, satisfy its statutory duty to

assess and disclose data to gardaí through a third party, namely Villacom or Mr. McKenna.

37. Section 8 of the Data Protection Act 1988, (as amended), provides as follows:-

“Any restrictions in this Act on the disclosure of personal data do not apply if the processing is:

(a) in the opinion of a member of the Garda Síochána not below the rank of chief superintendent or an officer of

the Permanent Defence Forces who holds an army rank not below that of colonel and is designated by the Minister

for Defence under this paragraph, required for the purpose of safeguarding the security of the State,

(b) required for the purpose of preventing, detecting or investigating offences, apprehending or prosecuting

offenders or assessing or collecting any tax, duty or other moneys owed or payable to the State, a local authority

or a health board, in any case in which the application of those restrictions would be likely to prejudice any of the

matters aforesaid,

(c) required in the interests of protecting the international relations of the State,

(d) required urgently to prevent injury or other damage to the health of a person or serious loss of or damage to

property,

(e) required by or under any enactment or by a rule of law or order of a court,

(f) required for the purposes of obtaining legal advice or for the purposes of, or in the course of, legal proceedings

in which the person making the disclosure is a party or a witness,

(g) made to the data subject concerned or to a person acting on his behalf, or

(h) made at the request or with the consent of the data subject or a person acting on his behalf.

38. Section 64(2) of the Criminal Justice (Terrorist Offences) Act 2005 provides as follows:-

“(2) If a member of the Garda Síochána not below the rank of chief superintendent is satisfied that access to any data

retained by a service provider in accordance with section 63 (5) is required for the purposes for which the data were

retained, that member may request the service provider to disclose the data to the member.”

39. It was not disputed that an appropriate request did emanate from the gardaí. Neither is it disputed that that request was directed

to the mobile phone provider, 02, who in turn directed its agent, Villacom, to extract the information.

40. The relevant portion of the learned trial judge’s ruling permitting Mr. McKenna to give the necessary evidence is as follows:-

“So, really, the only question is whether, under the relevant legislation, Mr. McKenna is in a position to verify the

information previously provided to the gardaí, at a time when that information disclosure procedure was done in house

by a staff member of 02. It seems to me that there is no reason to disbelieve Mr. McKenna when he says that Villacom

has a contract with 02 for this purpose. And further more, it appears to me that the measures taken by 02 to ensure

that access to the information is had only by authorised personnel are sufficient to comply with the provisions of the Act

of 2011. It is quite obvious that 02 regards Mr. McKenna as being an authorised person for the purpose of fulfilling the

requirement of the Act. And it seems to me that the security measures taken in that regard, in regard to the encrypted

computer which has no access to the Villacom network, are sufficient evidence of that and of proper security measures

been taken. In the circumstances I consider that Mr. McKenna is entitled to give evidence verifying the information and

he is a proper person so to do.”

41. Mr. McKenna gave evidence to the effect that he had access to the 02 computer records on a strictly controlled and confidential

basis for the purpose of fulfilling the task of proving records and giving evidence of cell site analysis of the location of 02 cell sites

used by particular phones and associated numbers for the making of calls.

42. The learned trial judge was entitled to rule as she did. She was satisfied that Mr. McKenna was properly authorised to assemble

and disclose the information in question, and in the circumstance was entitled to so find. This ground of appeal is therefore dismissed.

The detail of the verdict

43. The final ground of appeal is based on the fact that the verdict of the jury (being guilty in respect of both counts) does not

provide, (to quote the appellant’s oral submissions), “any additional information about what facts were unanimously agreed upon to

underpin those verdicts”.

44. No request was made on behalf of the appellant, prior to the jury retiring to consider its verdict, to request a specific verdict, nor

was the matter a subject of any requisition on behalf of the appellant. In any event it has never been the practice in this jurisdiction

that a jury be asked for an explanation of their verdict, other than simply stating guilty or not guilty. Indeed any suggestion that a

jury could be questioned as to how, or the reasons why, it reached its verdict, is entirely novel.

45. The appellant was charged with, and tried for, specific offences, and clear verdicts were returned in respect of each. A

requirement that a jury should, in effect, give reasons for, or explain its verdict is impractical and a recipe for enormous difficulty.

46. The secrecy of the manner in which a jury conducts its deliberations has long been a hallmark of our criminal legal system. In Ellis

v. Deheer [1922] 2 KB. 113, Bankes L.J. said:-

“I desire to make it clear that the court will never admit evidence from jurymen of the discussion which they may have

had between themselves when considering their verdict or the reasons for their decision, whether the discussion took

place in the jury room after retirement or the jury box itself.”

47. In R v. Thompson [1962] 46 CR.APP.R. 72, Parker L.J. said that it had long been a rule of practice based on public policy that

courts should not enquire as to what occurred in either the jury box or the jury room.

48. In R v. Smith (Patrick) [2005] 2 ALL E.R. 29 at 38, Lord Carswell stated:-

(1) The general rule is that the Court will not investigate, or receive evidence about, anything said in the course of the

jury’s deliberations while they are considering their verdict in their retiring room ….

(2) An exception to the above rule may exist if an allegation is made which tends to show that the jury as a whole

declined to deliberate at all, but decided the case by other means such as drawing lots or tossing a coin. Such conduct

would be a negation of the function of a jury and a trial whose result was determined in such a manner would not be a

trial at all…

(3) There is a firm rule that after the verdict has been delivered evidence directed to matters intrinsic to the

deliberations of jurors is inadmissible. The house so held in R v. Mirza [2004] 1 A.C. 1118, affirming a line of cases going

back to Ellis Deheer [1922] 2 K.B. 113 and R. v. Thompson [1962] 1 ALL E.R. 65.

(4) The common law has recognised exceptions to the rule, confined to situations where the jury is alleged to have been

affected by what are terms extraneous influences, e.g. contact with other persons who may have passed on

information which should not have been before the jury; see such cases as R. v. Blackwell [1995] 2 CrAppR 625 and R. v.

Oak [1997] CrimLR 898.

(5) When complaints have been made during the course of trials of improper behaviour or bias on the part of jurors,

judges have on occasions giving further instructions to the jury and / or asked them if they feel unable to continue with

the case and give verdicts in the proper matter. This course should only be taken with the whole jury present and it is

an irregularity to question individual jurors in the absence of the others about their ability to bring in a true verdict

according to the evidence: R v. Organs [1994] 1 WLR 108.

(6) Section 8(1) of the 1981 Act is not a bar to the court itself carrying out necessary investigations of such matters as

biased or irregularity in the jury’s consideration of the case. The members of the house who were in the majority in R. v.

Mirza all expressed the view that if matters of that nature were raised by credible evidence the judge can investigate

them and deal with the allegations as the situation may require. …

49. As there is no basis to support the argument that the jury ought to have asked for a detailed explanation as to the breakdown of

its verdict any such lack of detail cannot undermine the verdict handed down, this ground of appeal is also dismissed.

Summary

50. As all grounds of appeal have failed, the court will dismiss the appeal.