Director of Public Prosecutions v Thompson

• Jurisdiction: Ireland
• Judge: Ní Raifeartaigh J.
• Judgment Date: 30 January 2024
• Neutral Citation: [2024] IECA 22
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 2018/0257

The People at the Suit of the Director of Public Prosecutions

Respondent

and

Frederick Thompson

Appellant

[2024] IECA 22

Birmingham P.

Edwards J.

Ní Raifeartaigh J.

Record Number: 2018/0257

Bill No. SCDP 3/2017J

THE COURT OF APPEAL

Judgment of the Court delivered byNí Raifeartaigh J.on the 30 ^th day of January 2024

1 . This is an appeal against a murder conviction. The 12-day trial took place before the Special Criminal Court in May and June 2018. The trial court delivered judgment on the 30 ^th August 2018.

2 . The issues raised are; (1) That recognition evidence was wrongly relied on by the court when the footage was of inadequate quality and there had been procedural flaws in the process leading to the recognition by members of An Garda Síochána; (2) That the verdict was wrong in law and there was “double counting” of items of circumstantial evidence; and (3) That the CCTV footage should have been excluded because the recordings were made in breach of the appellant's right to privacy and data protection law.

Background

3 . The deceased, David Douglas, ran a shop known as Shoestown on Bridgefoot Street, Dublin 8, and the evidence was that he was in the habit of hanging around the front of the shop encouraging customers to enter. Shortly after 4 pm on the 1 ^st July 2016, he was on the shop floor with his young daughter when a male in dark clothing approached the shop and shot Mr Douglas before leaving the scene, leaving the weapon he had used near the head of the prone victim. Mr Douglas had six wounds to the chest, head and neck and was pronounced dead shortly before 5 pm that afternoon. The serial number of the gun had been milled away. The CCTV system in the shop established the precise time of the shooting to be 4.11 pm.

4 . An investigation commenced immediately and it transpired that the gunman had run from the scene towards Oliver Bond Street, where he got into a waiting Mercedes CLA, which was later identified to have registration number 161 D 26702. The Mercedes was seen driving down Francis Street and turning right into an area known as Spitalfields, where it was parked and two men were seen getting out. The car was set alight, in the course of which the driver's leg caught fire (and he dropped his face mask). He then got into the passenger seat of a parked-up vehicle which was a silver Suzuki Swift, registration number 151 WW 918. Thus, two cars, the Mercedes and the Suzuki, were used as the getaway cars from the scene of the murder. It may be noted that the trial court referred to the Mercedes as “the CLA”, as will be seen below.

5 . On the 4th July 2016, three days after the shooting, the Suzuki Swift was reported to have been set on fire in a car park on Strand Road, Dublin 4. As they were responding to this report, Gardaí observed a blue Mitsubishi Mirage, registration number 99 TS 5028, driving in the opposite direction at speed on Parnell Road, Dublin 12, which matched a vehicle seen leaving the scene of the fire. This vehicle was stopped, and the driver was a man referred to throughout the trial as Mr. F. The rear seat passenger was referred to as Mr. C.

6 . Subsequently, two finger marks which matched the appellant were found on the rear-view mirror and on a card in the glove box of the Mirage. His DNA also matched samples found on an inhaler in the Mirage.

7 . The prosecution case was that, in addition to the Mercedes CLA and the Suzuki Swift which were the getaway cars at the time of the shooting, two other vehicles were used as “spotter” cars and for logistical support in the planning and execution of the murder. These were (1) the Mirage in which Mr F and Mr C were arrested in the circumstances described above, and (2) a silver Ford Fiesta, 05 D 52309. The prosecution case was that the four vehicles and their occupants were operating in concert throughout the day in the planning and execution of the murder, and the movements of those vehicles were captured throughout the day on various CCTV systems.

8 . As to the forensic evidence, in addition to the connections found between the appellant and the Mirage as described above, DNA matching the appellant was found on an air freshener and hand sanitizer in the Fiesta as well as a finger mark on the internal rear-view mirror of the Fiesta. Mr F was also forensically linked to the Mirage and the Fiesta, and a finger mark attributed to Mr C was also found on the internal rear-view mirror of the Fiesta.

9 . The prosecution also relied on CCTV footage of the four vehicles in particular locations. There were also some sightings of individuals entering and exiting those vehicles and their movements thereafter. Some of these sightings were in dispute at the trial and some were not. One piece of footage showed the appellant parking the Fiesta opposite a stall on Meath Street at 4.10pm (one minute before the murder), and then going to the stall and conversing with a female while dismantling a mobile phone. This identification was not challenged by the appellant. He was also identified from footage as being in Little Caesar's restaurant later that evening in the company of Mr. C and Mr. F. He got out of the front passenger seat of the Mitsubishi outside a parking lot (a “Q-Park”) at 7.26pm and left for the restaurant accompanied by Mr. C who exited the car at the same time. The vehicle was being driven by Mr. F at that time and all three were in the restaurant together, along with the appellant's son and two females.

10 . One of the contentious pieces of evidence at the trial consisted of an identification by Gardaí of the appellant from footage which was referred to as “the White Swan footage” because it showed the Fiesta outside the White Swan Business Park at 10.49. It was the prosecution contention that the appellant was driving it. The identification of the appellant on this piece of footage was made by Sergeant Adrian Whitelaw and Garda Seamus O'Donovan. It was unsuccessfully challenged on a voir dire during the trial and is the subject of the first issue raised in this appeal.

11 . Neither of the statements made by Sergeant Whitelaw with regard to his recognition were dated and he made no notes as to the basis of his recognition of the appellant. He gave evidence that his recognition was not based on any particular feature but on his knowledge of having seen the appellant previously dressed in a similar manner and with the same beard “not too long before that”. He said his identification was immediate and without doubt or hesitation. He said he thought he had seen him in April or May and “he looked exactly like that in the car”. Overnight, the prosecution established that this was a photograph of the appellant outside Smithfield Children's Court on the 8 ^th April. Counsel for the appellant established that the appellant's beard was red in the 8 ^th April photograph and black in the CCTV footage. The witness said that it was “the same shape of facial hair' and the “same shape of face”.

12 . Sergeant Whitelaw denied that his recognition from the White Swan footage was influenced by his previous viewing of other pieces of footage. Sergeant Whitelaw was a member of the murder investigation and was aware that the appellant was a suspect. He was shown the Guild of the Little Flower footage before he saw the White Swan footage.

13 . Detective Garda O'Donovan, who was the second member to identify the appellant from this footage, had previously investigated the appellant in respect of a violent disorder in January 2013, and also had spent most of the day in his presence when the latter was extradited from Holland. He said he had dealt with the appellant over a ten-year period in the Dublin 8 area although counsel for the appellant pointed out that he had made only one entry into the PULSE system in that regard. He had dated his statement relating to the recognition, which was some four months after the murder and some three months after the footage had been obtained. He was not involved in the murder investigation and said he was not aware the appellant was a person of interest in relation to the murder.

14 . Counsel on behalf of the appellant contended that the procedures concerning the identification were not adequate and that the low quality of the footage rendered such evidence well below the standard for a criminal conviction. He also contended that Sergeant Whitelaw's recognition was compromised by his prior viewing of clear footage from the Guild of the Little Flower, and drew attention to the difference in appearance on the part of the appellant as between when Sergeant Whitelaw had previously encountered him (as shown by the photograph).

15 . The prosecution relied upon inferences from the silence of the appellant during interview when he was asked to account, under section 18 of the Criminal Justice Act 1984, for a number of matters. These included his possession of the silver Ford Fiesta at approximately 10.48 am on Merton Avenue, Dublin in the immediate vicinity of the Mercedes CLA which was later used in the murder; his possession of the silver Ford Fiesta at approximately 4.10 pm on Meath Street immediately prior to the murder of David Douglas; his dismantling of the phone at Meath Street; his being a passenger in the Mirage at approximately 7.38 pm at the entrance to the Q Park; and the items of forensic evidence described above. He was also requested to account for his presence in the various locations described with the people described. Under section 19A of the Criminal Justice Act 1984, the appellant was offered the opportunity to mention facts that he may rely upon in his defence being facts that clearly call for an explanation and he replied, “No comment at this time.”.

The first issue: the White Swan identification/recognition evidence (Ground 2 in the Notice of Appeal)

16 . The appellant submitted that if the Court were to hold that the...