DPP v Flynn
| Jurisdiction | Ireland |
| Judge | Mr. Justice Birmingham |
| Judgment Date | 20 February 2018 |
| Neutral Citation | [2018] IECA 39 |
| Docket Number | [No. 97 of 2016] |
| Court | Court of Appeal (Ireland) |
| Date | 20 February 2018 |
[2018] IECA 39
THE COURT OF APPEAL
Birmingham J.
Birmingham J.
Mahon J.
Hedigan J.
[No. 97 of 2016]
Conviction – Murder – Admissibility of evidence – Appellant seeking to appeal against conviction – Whether judge erred in admitting various pieces of evidence
Facts: The appellant, Mr Flynn, on 16th March, 2016, was convicted of the offence of murder following a lengthy trial. The prosecution case against Mr Flynn was that he was party to the murder of Mr O'Byrne on 13th March, 2009, at his home at 3 Tymon North Park, Tallaght. The prosecution case was one based on joint enterprise. By the time that Mr Flynn went on trial, two other men, Mr O'Brien and Mr Cullen had been convicted of the murder in separate trials. The case mounted by the prosecution against Mr Flynn was one based on circumstantial evidence. The case presented on behalf of the defence was that the various elements of the prosecution case were not the result of coincidence but instead could be explained by the association of the appellant with Mr Cullen, and thereby stripped the circumstantial evidence of the significance that it might otherwise have. There were two strands to the appellant's appeal to the Court of Appeal against conviction: 1) the judge erred in admitting various pieces of evidence, the admissibility of which had been challenged; 2) a number of criticisms were made of the trial judge's charge.
Held by the Court that the trial was satisfactory in all respects and that the verdict was proper and safe.
The Court held that the appeal should be dismissed.
Appeal dismissed.
On 16 th March, 2016, the appellant was convicted of the offence of murder following a lengthy trial. The prosecution case against Mr. Flynn was that he was party to the murder of Shay O'Byrne on 13 th March, 2009 at his home at 3 Tymon North Park, Tallaght. The prosecution case was one based on joint enterprise. By the time that Mr. Gary Flynn went on trial, two other men, Garrett O'Brien and Eugene Cullen had been convicted of the murder in separate trials. The prosecution case was that Garrett O'Brien shot the victim dead with a revolver and that Eugene Cullen, as well as the appellant and others had assisted in the preparation, execution and aftermath of the murder. It was not disputed at the instant trial that there was sufficient proof to establish that Eugene Cullen and Garrett O'Brien had participated in the murder, Mr. O'Brien being the gunman.
In broad terms, the case mounted by the prosecution against Mr. Flynn was one based on circumstantial evidence and, as is usual in such cases, the prosecution contended that the various pieces of evidence linking the appellant to the murder were more than mere coincidences and as such were highly significant. In general terms, the case presented on behalf of the defence was that the various elements of the prosecution case were not the result of coincidence but instead could be explained by the association of the appellant with Mr. Eugene Cullen, and thereby stripped the circumstantial evidence of the significance that it might otherwise have. There was evidence that put the appellant with Eugene Cullen before the murder, evidence that he had been communicating with him by phone since the very early hours of the morning of the murder and evidence that the appellant was in the company of Mr. Cullen and others in the aftermath of the murder.
There are, in essence, two strands to this appeal. First of all, it is said that the judge erred in admitting various pieces of evidence, the admissibility of which had been challenged. It must be said that the admissibility challenges were numerous and various, which goes a long way to explaining why the trial took 34 days. Secondly, a number of criticisms are made of the trial judge's charge. The Court will deal with this aspect first.
The criticisms of the trial judge's charge might be summarised as follows. He is criticised for failing to put the defence case before the jury. In particular, he is criticised for failing to put directly the defence case to the jury in relation to gunshot residue. A significant part of the prosecution case was based on the fact that gunshot residue (GSR) was found on both the left and right cuff of the hoodie worn by the appellant and also on his right hand. The prosecution invited the jury to proceed on the basis that this was explained by the appellant handling the gun and perhaps test-firing it before it was used in the murder. The gun was abandoned at the murder scene, so there was no question of direct contact with the gun after the shooting.
However, during the course of the trial, the defence had raised the possibility of innocent contamination with gunshot residue post the murder. It was canvassed that contamination could have been caused by the arresting Gardaí, or that it could have been explained by contact with Mr. Cullen or Mr. Taylor or by contact with an area of the Primera in which he travelled which was not tested for gunshot residue, such as the seats. It was submitted on appeal that the judge's charge was deficient in failing to put the defence case in relation to innocent contamination to the jury. It was further submitted that the charge was deficient in failing to put the defence case that there was no evidence that the appellant knew that a murder was going to take place or that he intended to assist in its commission.
Another criticism of the trial judge's charge was that, while he correctly told the jury that they had to be unanimous because by the time the jury came to deliberate there were only ten jurors, he did not accede to a defence request that there should be a specific direction that no juror should feel pressurised into agreeing to a verdict with which he or she did not agree. The charge is further criticised for what was said in relation to the burden of proof and in particular, what was said as to what amounted to a reasonable doubt. In that regard, in a situation where essentially the same point has been argued in the course of two previous appeals and rejected by this Court, this was not the subject of oral submissions. However, it was dealt with fully in the written submissions and counsel made it clear at the hearing of the appeal that he was maintaining his position in that regard. It is convenient to begin with this ground of appeal.
This ground of appeal contends that the judge erred in directing the jury as to the burden of proof, in particular by conveying to the jury that a reasonable doubt should be of sufficient weight as to be decisive on a matter of importance in the affairs of a member of the jury, as opposed to being of sufficient weight so as to cause a delay in making a decision on such a matter on the available evidence. As it happens, this Court has on two fairly recent occasions dealt with the manner in which judges refer to reasonable doubt in their charges. In both cases the appeal was from a trial presided over by the same trial judge as presided in this case and in both cases his formulation was broadly similar. (See DPP v. Doyle [2015] IECA 131 and DPP v. Marta Herda [2017] IECA 260).
Unusually, in the present case, in a situation where the judge's charge was interrupted by events outside his control, the judge dealt with the question of reasonable doubt not once, but twice. On day 31 of the trial he commented:-
'The responsibility never shifts from the prosecution to the accused. The accused is entitled to sit or stand mute as it were and say, "I am pleading not guilty, prove it." And it is a responsibility accordingly which the prosecution has of a very high order. And that responsibility is known as the standard of proof of proof beyond reasonable doubt. And the prosecution therefore at all times must prove every limb and element of the case without any responsibility being cast upon the defence in any way to do anything. And they must do it to that standard of proof known as proof beyond reasonable doubt. You will possibly have heard this phrase, sometimes people say "Beyond doubt", sometimes people say, "Beyond all reasonable doubt." Various formulations have been used, they're in my view quite unhelpful. The principle is that the prosecution must prove the case to the standard known as proof beyond a reasonable doubt.
Now, the question then arises as to what is or is not a reasonable doubt. And you, ladies and gentlemen, decide what is or is not a reasonable doubt. It is what you think it is, nothing more and nothing less. It has however, been the responsibility of judges over the years to seek to give assistance to juries as to what rationally speaking a reasonable doubt might be regarded as being. And it is sometimes described or defined as that sort of doubt which one of us might entertain if we were contemplating and thinking about an activity or an action of the greatest seriousness in our lives. And thinking about the matter in the most thorough fashion uphill and down dale, we were still left as a matter of reason with a doubt as to whether or not we ought to proceed. If we had such a doubt it might well be regarded by you as constituting a reasonable doubt. And were you to take the view that you should turn away from and not pursue the contemplated course of action, this obviously is a decision of a kind which ranks with the most serious decisions any of you are likely to be called upon to make in your lives.
Many examples are taken like a decision to move house or to emigrate or something of that kind. But I think it will suffice to say to you it is a decision of the first magnitude by any yardstick. And you can appreciate that if you're...
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