DPP v Christopher McDonald

• Jurisdiction: Ireland
• Judge: Murray J,Edwards J
• Judgment Date: 24 June 2021
• Neutral Citation: [2021] IECA 179
• Docket Number: [197/17]
• Court: Court of Appeal (Ireland)

Between

The People at the Suit of the Director of Public Prosecutions

Respondent

and

Christopher McDonald

Appellant

[2021] IECA 179

The President

Edwards J

Murray J

[197/17]

THE COURT OF APPEAL

JUDGMENT of the Court delivered (via electronic delivery) on the 24th day of June 2021

1 On 10th July 2017, after a trial that had lasted 15 days in the Central Criminal Court, the appellant was convicted of the offence of murder. The offence with which he was charged was that, on 12th June 2015, at Blanchardstown Racing Pigeon Club, Clonsilla, he had murdered Keith Walker. A large number of grounds of appeal have been formulated and advanced and it can be said immediately that many of them are completely lacking in any substance. To put the grounds of appeal in context, it is necessary to say something about the events that led to the trial.

Background facts

2 Keith Walker, the deceased, drove to Blanchardstown Racing Pigeon Club on 12th June 2015 in a car belonging to a man named Jason O'Connor. Mr. O'Connor was actively involved in pigeon racing at the club. On the evening that he met his death, Mr. Walker left Mr. O'Connor's home in the Blanchardstown area between 5.20pm and 5.40pm to drop Mr. O'Connor's pigeons to the club before a race that was due to commence at 6.30pm. Mr. Walker parked Mr. O'Connor's vehicle at the club and was shot dead shortly after exiting the vehicle. There were a number of eyewitnesses who described an individual, who appeared to be a woman, take what was described as a submachine gun out of a handbag and then open fire at the deceased. The shooter was described as wearing a long black wig, women's sunglasses and leggings. The deceased fell to the ground, and as he did, his assailant was described as running very fast out of the club towards the entrance carrying a machinegun. That machinegun was described as a foot and a half long.

3 A number of witnesses who had been in the vicinity of the shooting gave evidence of having seen a man dressed like a woman in the vicinity of the pigeon club on the day of the fatal shooting. Two witnesses, Jordan Reid and Robert Hovekis, referred to the fact that they had encountered a man in women's clothes and wearing makeup, who had a cut over his right eye, at the junction of Whitestown Gardens and Whitestown Avenue. The man had asked for directions to the pigeon club or care centre. The man was carrying a woman's handbag and they referred to the fact that he had a tattoo on his arm.

4 Thereafter, a motorcyclist attended at James Connolly Memorial Hospital, but departed from there when he noticed that there were Gardaí present. It appears the Garda presence at that stage may have been unconnected with this investigation but the aborted hospital visit was to prove of some significance.

5 As is now standard practice in any significant investigation, CCTV footage was harvested and at trial, the jury was shown footage that had been downloaded from the nearby Lidl supermarket, from the pigeon club, and also from a camera on a private residence in Sheepmoor.

6 At approximately 4.00am on 13th June 2015, Gardaí obtained a search warrant from the Dublin District Court. The warrant purported to authorise the searching of 32 Leigh Valley, Ratoath, County Meath. Gardaí went to that address at about 5.15am with a view to executing the warrant. Armed Gardaí entered the premises and the appellant was located in a bedroom. He was noted to have a cut over his right eye and appeared to have makeup on his face. At 6.10am, the appellant was arrested and brought to Blanchardstown Garda station. There was a delay between the entry of armed Gardaí onto the premises and the location of the appellant in the bedroom and his arrest. This was explained by a decision to have the suspect viewed by the member of An Garda Síochána, Detective Sergeant Thomas Lynch, who had taken a statement from one of the two teenage boys, Jordan Reid, who had been asked for directions to the pigeon club. While the appellant was detained in Blanchardstown Garda Station, samples were taken from him for forensic analysis, these being samples for firearms residue analysis, swabs for DNA comparison purposes and a swab of what was suspected to be makeup on his face.

7 On 16th June 2015, Gardaí who had received relevant information went to a laneway in Sheepmoor Grove. There, they located a beige, fur-type handbag, a firearm, a wig, a clear disposable glove and an earplug. The firearm was some 23.5 inches in length and had a 6-inch barrel. According to ballistics experts, it could be used as a semiautomatic weapon or automatic weapon. The magazine was capable of taking 25 rounds, and when located, there were six rounds in it. Discharged bullets found at the scene of the fatal shooting and retrieved during the post-mortem of the deceased were of the same type of ammunition as would be used for the gun in question. At trial, there was evidence from a forensic scientist, Dr. Edward Connolly, that DNA profiles obtained from both the inside and outside aspects of the glove matched the DNA profile of the appellant. A DNA profile obtained from the wig was a mixture consisting of DNA from more than two sources, but there was one major contribution to the profile and that matched the profile of the appellant. The DNA profile obtained from the strap of the shoulder bag was a mixture, consisting of contributions from at least three people and the complexity of the profile was such that it was not suitable for further interpretation. In relation to the earplug, a low level DNA profile was obtained which was from an unknown male source and the appellant was excluded as a possible source. In relation to the firearm, a DNA profile was obtained which was a low level mixed profile consisting of DNA from two or more sources, but which was not suitable for interpretation.

8 Thomas Hannigan, also a forensic scientist at the Forensic Science Laboratory, gave evidence of having examined the black wig, the glove and a discharged round of ammunition from the scene, as well as a firearms residue sample kit taken from the appellant. He found firearms residue on the wig and on the glove which was similar in terms of the range of elements present to the discharged round found at the scene. Mr. Hannigan was of the view that the forensic analysis provided very strong support for the suggestion that the items in question had been worn by the shooter, rather than that they were unconnected with and had nothing to do with the incident.

Grounds of Appeal

9 The grounds of appeal are as follows:

Ground (i): That the trial judge erred in law and in fact in refusing to discharge the jury when prosecution witness, Jason O'Connor, threatened to kill the appellant in open court in the presence of the jury on the way to the witness box to give evidence.

• (i) That the trial judge erred in law and in fact in refusing to discharge the jury when prosecution witness Jason O'Connor threatened to kill the appellant in open court in the presence of the jury on the way to the witness box to give evidence.

• (ii) That the trial judge erred in law and in fact in upholding the validity of the search warrant in respect of 32 Leigh Valley, Ratoath, Co. Meath, in circumstances where it was bad on its face and further erred in admitting evidence of the items seized by An Garda Síochána during the course of the search conducted on foot of the said warrant (this ground was not pursued).

• (iii) That the trial judge erred in law and in fact in ruling that the arrest of the appellant was lawful.

• (iv) That the trial judge erred in law and in fact in failing to rule that the appellant was unlawfully detained between 5.40am and 6.10am on 13th June 2015, and in admitting evidence of the informal identification carried out by Detective Sergeant Thomas Lynch during that period.

• (v) That the trial judge erred in law and in fact in allowing evidence in terms of an additional statement of evidence provided just prior to trial which altered the dates various actions were allegedly carried out in a manner highly prejudicial to the appellant (this ground was not pursued).

• (vi) That the trial judge erred in law and in fact in admitting evidence in respect of forensic samples taken from the appellant in circumstances where it had not been established in evidence that the samples were lawfully taken.

• (vii) That the trial judge erred in law and in fact in admitting evidence of the items said to have been located in a bag found by a member of the public in Sheepmoor, Dublin 15, in circumstances where it appeared on the evidence that the integrity and safe custody of the item and its alleged contents had not been proved (this ground was not pursued).

• (viii) That the trial judge erred in law and in fact in admitting CCTV evidence from Lidl carpark in circumstances where it had not been proven that the footage related to the time and date of the alleged offence.

• (ix) That the trial judge erred in law and in fact in permitting narrative evidence in respect of what was suggested could be observed on the CCTV footage in the case (this ground was not pursued).

• (x) That the trial judge erred in law and in fact in admitting CCTV evidence gathered at a private residence in circumstances where the integrity and relevance of same had not been established.

• (x)(a) That the trial judge erred in law and in fact in refusing an application to remove the matter from the jury due to the failure to conduct an identification procedure with witnesses, Robert Hovekis and Jordan Reid.

• (xi) That the trial judge erred in law and in fact in admitting the evidence of Jordan Reid and Robert Hovekis in circumstances where the witnesses had been observed in discussion during the voir dire in relation to the proposed evidence, and where one of the witnesses appeared to alter his evidence as a result.

• (xii) That the trial...