Director of Public Prosecutions v Bryan Ryan

• Jurisdiction: Ireland
• Judge: Murray C.J.
• Judgment Date: 11 March 2011
• Neutral Citation: [2011] IECCA 6
• Docket Number: Record No: 290/08
• Court: Court of Criminal Appeal
• Date: 11 March 2011

[2011] IECCA 6

THE COURT OF CRIMINAL APPEAL

Murray C.J.

Budd J.

Edwards J.

Record No: 290/08

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

-v-

BRYAN RYAN

APPLICANT

Abstract:

Criminal law - Appeal - Evidence - Right of access to solicitor - Admissions made whilst in custody - Evidence of protected witnesses - Whether failure to consider alternative verdict of murder - Whether meaningful opportunity to obtain legal advice - Regulations for the Treatment of Persons in Custody in Garda Stations, 1987 (S.I. 119 of 1987).

Facts The applicant was convicted of murder and sought leave to appeal against his conviction. The victim had been shot through a window at a house party. It was the prosecution's case that the victim was not the intended victim but that it was the victim's brother who was the intended target. It had been the prosecution's case that the applicant had driven the motorcycle which had been used to transport the alleged shooter and that the applicant was party to a common design to commit murder. During the trial key evidence was given by a principal prosecution witness who had known the applicant for a number of years and who was receiving protection under the Witness Protection Programme. Evidence was used by the prosecution case regarding phone calls made on the night in question. In addition the prosecution adduced evidence of admissions made by the applicant whilst in custody. Leave was sought to appeal the conviction on the basis that the trial judge ought not to have admitted certain statements made by the applicant. The verdict was unsafe because the trial judge refused to compel the prosecution to disclose details of arrangements and benefits accorded to the key prosecution witness. The trial judge failed to give the jury appropriate warnings concerning the protected witness's evidence and in particular as regards corroboration of such evidence. Finally it was argued that the trial was unsatisfactory and the verdict unsafe as the jury had not been informed that a verdict of manslaughter could be returned as an alternative to murder.

Held by the Court of Criminal Appeal in quashing the verdict and ordering a re-trial. The Court was not satisfied in the particular circumstances of this case that there was a denial of the right in question during the interview in question. There was no evidence that the applicant's consultation by telephone with his solicitor was curtailed by the Gardaí. It was open to the trial judge on the evidence to form the view that the brief contact that the applicant had with his solicitor was sufficient to cure the unconstitutionality of his detention for the remainder of that interview. There was no evidence of a causative link, whether general or specific, between admissions made while the conditions of the applicant's detention were unlawful and those made subsequently while they were lawful. In the case of the witness in a Witness Protection Programme a jury should be warned as to the desirability of corroboration because the witness might be motivated, in giving evidence, by the benefits to be received from that programme. Accordingly, the evidence of protected witnesses was a category of potentially unreliable evidence in its own right, separate and distinct from the evidence of accomplices. The trial judge misdirected himself in law in deciding not to give a protected witness warning concerning corroboration to the jury in addition to an accomplice warning. This fundamentally affected the manner in which the jury deliberated on the evidence and accordingly the verdict of the jury could not be considered as safe and the appeal would be allowed on this ground. In all the circumstances of the case the Court was satisfied, that there was neither a legal or evidential basis on which to invite the jury to bring in a verdict of manslaughter as an alternative to a verdict of guilty of murder. Juries should only be asked to decide issues for which there was a real basis in law having regard to the evidence before them.

Reporter: BD

1 JUDGMENT of the Court delivered by Murray C.J. on the 11th day of March 2011

2 INTRODUCTION

3 On 5th December, 2008, the applicant was convicted of the murder of one Ian Tobin on 27th May, 2007, at 46A Fortlawn Park, Blanchardstown, Dublin 15 following a twelve day trial. The jury convicted the applicant by a majority of ten. The applicant applies to this Court for leave to appeal against his conviction. The grounds of appeal are referred to later in this judgment.

4 BACKGROUND FACTS

5 Mr. Ian Tobin died from wounds sustained when he was struck in the right hand side of the neck by pellets discharged from a sawn-off shotgun in the early hours of the morning of 27th May, 2007, at 46A Fortlawn Park, Blanchardstown, Dublin 15. The deceased had been attending a drinking party at the house where he was killed. The house in question was the residence of a Ms. Rachel Curtis, who regularly hosted such parties. There was a knock at the door sometime around 5 a.m. and a young woman named Danielle Finn went out to see who was there. She looked through an adjacent window and saw a person standing outside. This person was wearing a motorcycle helmet. Ms. Finn did not open the door as she did not know the caller and instead went back into the sitting room of the house. Ian Tobin then walked out towards the door and as he did so he was shot through a window beside the door. The prosecution's case was that Ian Tobin was not the intended victim of the shooting and that the intended victim was in fact his brother Blake Tobin.

6 The gardaí and a fire brigade and ambulance were called to the scene. When they arrived they found Ian Tobin lying mortally wounded in the hallway. He was still alive and conscious at this point and was rushed to Blanchardstown Hospital. He lost consciousness en route to the hospital and shortly after arriving there was taken to an operating theatre for emergency surgery. He never recovered consciousness and died in intensive care after the operation. The evidence of the State Pathologist, Professor Cassidy, who subsequently performed a post-mortem examination on Ian Tobin's body, was that there were multiple pellet wounds to his neck and to the structures within his neck which would have resulted in considerable blood loss and breathing difficulties. Despite the surgical treatment he received he was unlikely to have made any recovery. Professor Cassidy testified that Ian Tobin's cause of death was "shotgun injury to the neck, blood loss and obstruction of the airways."

7 Following Ian Tobin's removal from the scene to hospital, the gardaí immediately commenced an investigation into the incident. At about 5.30 a.m. on the same date, a stolen high performance motorcycle was found burning a short distance away from the scene. It was the prosecution's case that this motorcycle was used to transport the shooter, alleged to be one Michael Murray, to and from the crime scene, and that it was being driven at the material time by the applicant who was party to a common design with the said Michael Murray to murder the aforementioned Blake Tobin.

8 Michael Murray is a long time friend and associate of the applicant. His daughter is the applicant's girlfriend. There was evidence at the trial of a history of bad blood between Blake Tobin and Michael Murray. About a year and a half prior to the shooting of Ian Tobin, Blake Tobin became involved in a violent altercation with Michael Murray which was the genesis of what subsequently became an ongoing dispute or feud. This altercation occurred at a party in a Ms. Phyllis Burke's house in Huntstown. Amongst those present were Michael Murray, Blake Tobin and the applicant. Blake Tobin testified at the applicant's trial that on that occasion Michael Murray had grabbed a knife in the kitchen and had tried to stab him. The applicant was present during this altercation. The dispute was revived shortly before the date on which Ian Tobin was shot at yet another house party in Rachel Curtis's house. On this occasion Michael Murray was punched in the face by Blake Tobin and once again the applicant was present. The prosecution's case was that arising from him having witnessed these altercations, and being sympathetic to his friend Mr. Murray, the applicant formed a strong dislike of Blake Tobin and was thus motivated to become involved in a joint enterprise with Michael Murray to kill Blake Tobin.

9 THE EVIDENCE OF THE PROTECTED WITNESS, KEVIN WHELAN

10 The principal prosecution witness was a Mr. Kevin Whelan who had known the applicant for a number of years. Mr. Whelan is a person who is receiving protection under the Witness Protection Programme. He gave evidence of having discussed with the applicant the incident that had occurred in Phyllis Burke's house in Huntstown in which Mr. Murray had attempted to stab Blake Tobin. He recounted how the applicant had told him that Mr. Murray was going to kill Blake Tobin, and more particularly that he was going to shoot him. According to Mr. Whelan, the applicant "said it a few times". Further, Mr. Whelan testified that on one occasion, at a meeting at the McDonalds Drive-Thru in Blanchardstown, Mr. Murray pulled him (i.e. Mr Whelan) aside and asked him to help him "get" Blake Tobin. Mr. Whelan said that he declined as he did not want to get involved.

11 Mr. Whelan then gave further evidence that on the evening of the shooting he had gone to Rachel Curtis's house at 46A Fortlawn Park, Blanchardstown at between 8 and 9 p.m.. While he was there he received phone calls from the applicant on a number of occasions. During the first of these phone calls he informed the applicant as to where he was, and asked him "are you coming up". The applicant said he was "out with Mick Murray". Mr. Whelan then told the applicant that Blake (Tobin) was not there and...