DPP v O'Brien
| Jurisdiction | Ireland |
| Judge | Mr. Justice Mahon |
| Judgment Date | 27 June 2017 |
| Neutral Citation | [2017] IECA 193 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No. 315/2012 |
| Date | 27 June 2017 |
[2017] IECA 193
Record No. 315/2012
THE COURT OF APPEAL
Conviction – Murder – Unlawful arrest – Appellant seeking to appeal against conviction – Whether appellant was unlawfully arrested
Facts: The appellant, Mr O’Brien, appealed to the Court of 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. He was sentenced in respect of both convictions to life imprisonment and ten years imprisonment respectively. The following grounds of appeal are promoted on behalf of the appellant: 1) The 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; 2) The aforesaid impugned ruling of the 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; 3) The 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; 4) The 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; 5) The 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; 6) 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.
Held by the Court that 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. The court was also satisfied that no issue arose as to the breach of the appellant’s constitutional rights as 12, Old Court, 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. The Court held that if there was any criticism to be made of the charge and subsequent re-charging of the jury, it was that it unduly favoured the defence. The Court held that the trial judge was entitled to rule that Mr McKenna was properly authorised to assemble and disclose the information in question. The Court held that as there was 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.
The Court held that it would dismiss the appeal.
Appeal dismissed.
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.
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.
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.
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.
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...
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