DPP v Byrne, Farrelly and Byrne

• Jurisdiction: Ireland
• Judge: Birmingham P.
• Judgment Date: 20 April 2020
• Neutral Citation: [2020] IECA 108
• Docket Number: [227/18] [223/18]
• Date: 20 April 2020
• Court: Court of Appeal (Ireland)

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

DAVID BYRNE

APPELLANT

AND

MARK FARRELLY

APPELLANT

AND

NIALL BYRNE

APPELLANT

[2020] IECA 108

The President

McCarthy J.

Kennedy J.

[227/18]

[228/18]

[223/18]

THE COURT OF APPEAL

Conviction – Robbery – Evidence – Appellants seeking to appeal against conviction – Whether evidence was unconstitutionally obtained

Facts: On 21st May 2018, after a trial in the Dublin Circuit Criminal Court which had lasted 64 days to that point, each of the appellants was convicted in relation to counts relating to a tiger kidnapping-style incident that had occurred on 13th and 14th March 2005. Mr M Farrelly and Mr Byrne were convicted on four counts of false imprisonment and one count of robbery of cash in the sum of €2.28m. Mr Byrne was convicted of the offence of robbery, with the jury unable to agree in relation to the remaining counts. The appellants appealed to the Court of Appeal against conviction. There was very significant overlap between the grounds which each of the appellants sought to argue. The grounds that were common to the appellants were grouped as follows: (i) an issue relating to the procedures followed by An Garda Síochána in seeking to access mobile telephone records and the judge’s decision to admit the evidence that was obtained, notwithstanding her view that the wrong procedure had been followed and that, thus, the evidence was unconstitutionally obtained; (ii) issues relating to the admissibility of the cell data records obtained by An Garda Síochána following requests to service providers; (iii) issues relating to XRY analysis of handsets and SIM cards; and (iv) issues arising from the decision of the trial judge to admit evidence obtained in the course of searches of a number of premises which were conducted under warrants that had been issued in accordance with the provisions of s. 29 of the Offences Against the State Act 1939. There remained a number of grounds that were referable to one or other of the appellants, such as the decision to allow the prosecution to cross-examine a particular witness, Mr K Farrelly, as a hostile witness, the issue in relation to the yellow work jacket that related to Mr M Farrelly, and the issue relating to the invocation of s. 16 of the Criminal Justice Act 2006, in the case of the witness, Ms Ellis, in relation to Mr Byrne.

Held by the Court that it had not been persuaded of the merit of any of the grounds of appeal advanced by any or all of the appellants. The Court was satisfied that the convictions were safe and did not warrant interference by the Court.

The Court held that the appeals would be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered on the 20th day of April 2020 by Birmingham P.

1 On 21st May 2018, after a trial in the Dublin Circuit Criminal Court which had lasted 64 days to that point, each of the appellants was convicted in relation to counts relating to a tiger kidnapping-style incident that had occurred on 13th and 14th March 2005. Mr. Mark Farrelly and Mr. David Byrne were convicted on four counts of false imprisonment and one count of robbery of cash in the sum of €2.28m. The appellant, Niall Byrne, was convicted of the offence of robbery, with the jury unable to agree in relation to the remaining counts.

2 The trial concerned the false imprisonment of four members of one family, the Richardson family from Raheny, and the subsequent theft of €2.28m in cash from a Securicor van driven by one of the family members, Securicor employee Paul Richardson.

3 On 13th March 2005, a number of men forced entry into the Richardson family home. They falsely imprisoned the family with the intention of forcing Paul Richardson, in the face of threats of harm to his family, to perform certain acts in his capacity as an employee of Securicor in order to facilitate the robbery. Paul Richardson's wife, Marie, and their two teenage sons, Ian and Kevin, were taken from their family home and brought to Cloonwood, County Wicklow, where they were kept overnight, while Paul Richardson was kept at the family home. On the following morning, on 14th March 2005, Paul Richardson reported for work, and acting under duress and in accordance with instructions, facilitated the dropping off of the €2.28m in cash as the car park of the Anglers Rest Public House in the Strawberry Beds, Dublin. The three other members of the Richardson family were left tied up in Cloonwood, but at one stage, managed to release themselves and to obtain assistance.

4 This tiger kidnapping has given rise to lengthy and complex legal proceedings. As those proceedings have some relevance to arguments that were advanced in the course of this appeal, it may be helpful to outline that history.

5 In Trinity term 2009, Jason Kavanagh, Mark Farrelly, Christopher Corcoran and David Byrne and Niall Byrne stood trial with Judge Hunt, as he then was, presiding. Mr. Kavanagh, Mr. Farrelly and Mr. Corcoran were convicted and the jury disagreed in respect of David Byrne and Niall Byrne. In Michaelmas 2011, David Byrne and Niall Byrne stood trial with Judge Patrick McCartan presiding. In both cases, the jury disagreed. In Trinity 2012, the appeals of Jason Kavanagh, Mark Farrelly, and Christopher Corcoran were before the Court of Criminal Appeal. Their appeals were allowed, essentially on Damache grounds. In Trinity term 2013, applications by David Byrne and Niall Byrne to prohibit their further prosecutions came before the High Court (Hogan J). Mr. David Byrne was refused an order of prohibition, but such an order was granted to Mr. Niall Byrne. Michaelmas 2013 saw the third jury trial, this time with Judge Martin Nolan presiding. Four men stood trial, one of whom, Mr. AC, was acquitted. Mr. Jason Kavanagh was convicted and there were disagreements in the case of Mark Farrelly and Christopher Corcoran. The fourth jury trial took place in Hillary term 2015, with Judge Mary Ellen Ring presiding. Mark Farrelly and Christopher Corcoran were both acquitted by direction of the trial judge. In Michaelmas 2015, the Supreme Court ruled that David Byrne and Niall Byrne could be retried. In June 2016, the Court of Appeal upheld an appeal brought by the DPP against the acquittal by direction of the trial judge of Mark Farrelly and Christopher Corcoran and ordered a retrial. A further jury trial, the fifth, took place in Hillary term 2018, with Judge Melanie Greally presiding. This trial saw Mark Farrelly, David Byrne, Niall Byrne, and Christopher Corcoran convicted. It is the outcome of this trial which gives rise to the present appeal. Each of the appellants now seek to appeal conviction and sentence. This judgment deals with the conviction aspect of the appeal.

6 To complete this historical overview, it is necessary to refer to two Supreme Court decisions which have impinged in a significant way on the progress of these proceedings. On 23rd February 2012, the Supreme Court delivered judgment in the case of Damache v. DPP [2012] 2 IR 266. and on 15th April 2015, the Supreme Court gave judgment in the case of DPP v. JC [2017] 1 IR 417.

7 It should be noted that the prosecution case, in the trial now under consideration, was heavily-reliant on mobile phone traffic evidence. Indeed, mobile phone evidence has been of central significance throughout the history of the proceedings outlined above. This evidence will be considered in more detail in due course, but it is sufficient at this stage to note its central significance. While there were other aspects of the prosecution's case, the mobile phone evidence was at its core. Similarly, the telephone evidence has been of central significance in the context of this appeal.

8 So far as the appellant, Mark Farrelly, is concerned, the grounds of appeal on which he relies are as follows:

Ground A

(i) That the judge, having ruled that the requests for mobile phone records relating to the applicant, were made in breach of his constitutional right to privacy, erred in law and in fact in ruling that evidence obtained by the prosecution in this manner was nonetheless admissible in evidence;

(ii) That the judge erred in admitting into evidence cell data records obtained by An Garda Síochána under the Postal and Telecommunications Act 1983 (as substituted and amended by the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993;

(iii) That the trial judge, having found that the applicant's constitutional and European rights had been breached by the manner in which his mobile phone records were obtained, failed to have adequate regard to the applicant's right to privacy by ruling that the mobile phone records were admissible as evidence against the applicant;

Ground B

(iv) That the trial judge erred in holding that call data records and the names associated with particular phone numbers were a form of real evidence and were admissible as real evidence in circumstances where there was evidence of manual inputting of information;

Ground C

(v) That the judge erred in law and in fact in admitting documentary evidence relating to cell site analysis;

(vi) That the judge erred in law in admitting the location of Vodafone cell masts when there was no evidence of the coverage area of those cell masts;

(vii) That the judge erred in admitting information on subscriber details associated with specific mobile phone numbers;

Ground D

(viii) That the judge erred in law in admitting evidence obtained during a search of No. 23, Moatview Court, Dublin 15, which was evidence obtained on foot of a search warrant that had been issued under section 29 of the Offences Against the State Act;

Ground E

(ix) That the judge erred in law in ruling that the arrest and detention of the applicant was lawful;

Ground F

(x) That the judge erred in law and in fact in ruling that the XRY analysis of mobile phone handsets and...