Director of Public Prosecutions v Brady

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice John Edwards
• Judgment Date: 11 July 2024
• Neutral Citation: [2024] IECA 170
• Docket Number: Record Number: 201/2020

Between/

Aaron Brady

Appellant

and

The People at the Suit of the Director of Public Prosecutions

Respondent

[2024] IECA 170

Edwards J.

Kennedy J.

Burns J.

Record Number: 201/2020

THE COURT OF APPEAL

Conviction – Capital murder – Admissibility of evidence – Appellant appealing against conviction – Whether evidence was admissible

Facts: The appellant, Mr Brady, was convicted of the capital murder of Detective Garda Donohue. He appealed to the Court of Appeal against conviction on the following grounds: (1) the omission by the respondent, the Director of Public Prosecutions (the DPP), to disclose letters of scope was a material non-disclosure process; (4) the trial judge erred in admitting into evidence a conversation between Mr Brady and Ms King; (5) the judge erred in directing that the trial should proceed during the Covid-19 lockdown; (6) the judge erred in refusing to discharge the jury as a consequence of the cross-examination of Mr McNamee; (7) the judge erred in rejecting the defence’s application that the deportation to Ireland of Mr Brady was a de facto extradition; (9) the trial court erred in admitting into evidence mobile phone handsets; (10) the court erred in admitting call data records; (11) the court erred in admitting CCTV footage; (13) the court erred in permitting expert evidence to be given by Garda Kenna with respect to the CCTV evidence; (14) the court erred in permitting the jury to access materials in the form of cellebrite and excel sheets in a manner that allowed them to manipulate the information; (15) the court erred in permitting the DPP to lead evidence of Ms Staunton and Mr Cahill via a video link; (17) the judge erred in determining that the court had jurisdiction to permit the DPP to lead their evidence in a manner other than provided for under the statutory provisions; (18) the judge erred in allowing Ms Staunton to give evidence unsupervised; (19) the judge erred in allowing Mr Cahill to give evidence under the control of Homeland Security; (20) the judge erred in refusing an application to discharge the jury in the circumstances; (21) the judge erred in permitting the DPP to treat Ms Staunton as a hostile witness; (22) the judge erred in determining that the deficiencies in respect of her evidence could be cured by a warning to the jury; (23) the judge erred in deciding to inform the jury by way of a summary of what had transpired in their absence; (24) the judge erred in telling the jury that the intervention by the hostile male had nothing to do with Mr Brady; (25) the judge erred in determining that his fair trial rights were not compromised by the letters of scope; (26) the judge erred in determining that it was within the power of the DPP to enter into an agreement with a witness that they would give a restricted form of testimony; (27) the judge erred in allowing Special Agent Wade to give evidence in the circumstances; (28) the judge erred in refusing to conduct a voir dire on the admissibility of Mr Cahill’s evidence; (29) the court erred in refusing to allow Mr Brady to introduce into evidence a tape recording of a conversation between prime suspect Mr Flynn and Special Agent Katzke; (30) the court erred in refusing to permit Mr Brady to cross-examine Special Agent Katzke on the contents of the tape; (33) the judge erred in ruling that the proper course was not to deal with matters relating to the letters of scope in a voir dire; (34) the judge erred in refusing to direct Special Agent Wade to answer material questions; (35) the judge erred in determining that many of the questions put to him fell within the terms of the letter of scope; (36) the judge erred in determining that it was permissible for a witness to refuse to answer material questions; (37) the judge erred in determining that there was a jurisdiction conferred on the DPP to allow a witness not to answer material questions; (38) the judge erred in determining that this was an acceptable limitation to impose for the purposes of promoting international co-operation; (40) the judge erred in permitting the jury to consider the evidence of Mr Cahill; (41) the failure of the DPP to disclose a police report until after Mr Cahill had completed his evidence rendered the cross-examination unsatisfactory; (42) the judge erred in permitting the DPP to lead the evidence of an exchange between Mr Brady and Mr Cahill on Katonah Avenue New York; (44) the judge erred in failing to withdraw the case from the jury on the grounds advanced during a People (DPP) v. P.O’C [2006] 3 I.R. 238 application; (45) the judge erred in failing to withdraw the capital murder case from the jury; and (46) the judge erred in refusing the appellant’s renewed P.O’C application.

Held by the Court that the trial judge did not err. The Court did not uphold any of the appellant’s grounds of appeal.

The Court dismissed the appellant’s appeal against conviction.

Appeal dismissed.

JUDGMENT of the Court delivered on the 11 ^th day of July 2024 by Mr. Justice John Edwards

1 This is an appeal against conviction. On 12 August 2020, the appellant was convicted by majority verdict of the capital murder of Detective Garda Adrian Donohue on 25 January 2013. The jury had earlier convicted the appellant by unanimous verdict of robbery at Lordship Credit Union on the same date.

2 The trial was due to commence before a jury at the start of the legal term in October 2019. However, disclosure issues, which took a significant amount of time to deal with and which the Court will return to later, delayed the commencement of the trial. Ultimately, a jury was sworn in the matter on 27 January 2020.

3 In late February 2020, the first Covid-19 case was confirmed in Ireland. On 27 March 2020, the first Covid-19 lockdown was announced which, amongst other matters, introduced severe personal restrictions on the movement and gathering of people. Only persons involved in the provision of essential services were permitted to attend their workplace. Travel into the jurisdiction from abroad was severely curtailed.

4 Physical court cases where the respective parties and their legal representatives appeared in person, all but came to a halt. A direction was issued by the President of the High Court that criminal trials currently at hearing before the Central Criminal Court were to continue to completion. However, the commencement of all other criminal trials was halted until September 2020.

5 This trial, however, continued throughout the lockdown period until the jury returned a verdict in August 2020. Many of the issues raised by the appellant in this appeal arose because of the consequences of the Covid-19 lockdown both in this jurisdiction and in the United States of America.

Background

6 On 25 January 2013, Detective Garda Donohoe and Detective Garda Joe Ryan were providing an armed escort to a number of credit unions in the Cooley Peninsula. The weekly Friday night routine was that an armed garda escort was provided to four credit unions in the peninsula so that the deposits from their premises could be gathered together for onward safe transmission and lodgement with a bank in Dundalk. Lordship Credit Union was the last credit union to be collected from before the lodgement in Dundalk which meant that the takings from each of the other three credit unions were already gathered by the time of the collection at Lordship Credit Union.

7 On the night in question, the unmarked garda car in which the armed detectives were travelling, and a second car driven by a credit union employee, in which deposits totalling approximately €27,000 from the other three credit unions were being carried, drove into Lordship Credit Union at approximately 21.25. In accordance with the procedure for collection, on arrival of the garda escort, an employee from Lordship Credit Union emerged from the premises carrying the deposits from that credit union, totalling €7,000, and got into his car. As the convoy began to leave the premises, a vehicle pulled across the exit of the car park blocking their path. The person driving the second car thought that this was a dark grey four door Volkswagen Passat. (A vehicle consistent with a Passat was captured on CCTV travelling up a boreen adjacent to Lordship Credit Union at 20.50). As the vehicle pulled across the exit of the car park, four masked raiders emerged into the floodlit car park of the credit union, having climbed a wall to the rear of the car park. One of the raiders was carrying a shotgun and another was carrying a handgun. The two armed raiders ran to the unmarked garda car whilst another raider, who was carrying a hammer, ran to the car which the Lordship Credit Union employee was driving. The bag containing €7,000 was taken from this car after the window of the car was smashed with the hammer. The deposits from the other credit unions which were in the second car were not touched. It was noted that walkie talkies were used by the raiders.

8 Meanwhile, Detective Garda Donohue was shot at close range by one of the armed raiders having emerged from his car. He died at the scene. It was the respondent's case that this shooter was the appellant.

9 Having taken the Lordship Credit Union deposits, the four raiders made good their escape in the vehicle that was thought to be a Volkswagen Passat and drove in the Dundalk direction. It was the respondent's case that this vehicle was depicted on CCTV footage travelling past a primary school in South Armagh in convoy with a distinctive 5 series BMW, which the respondent asserted belonged to Jimmy Flynn, an associate of the appellant. A similar BMW was seen travelling at speed in the opposite direction a short time afterwards.

10 On 27 January 2013, a burnt-out Volkswagen Passat was found in South Armagh, a short distance away from the primary school.

11 It was the respondent's case that this burnt-out Volkswagen Passat was...