DPP v Gavin Sheehan

• Jurisdiction: Ireland
• Judge: Mr. Justice McCarthy
• Judgment Date: 25 May 2020
• Neutral Citation: [2020] IECA 142
• Docket Number: [55/2017]
• Court: Court of Appeal (Ireland)
• Date: 25 May 2020

BETWEEN/

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

AND

GAVIN SHEEHAN

APPELLANT

[2020] IECA 142

Edwards J.

McCarthy J.

Kennedy J.

[55/2017]

THE COURT OF APPEAL

Conviction – Possession of a firearm – Miscarriage of justice – Appellant seeking to appeal against conviction – Whether a miscarriage of justice had occurred

Facts: The appellant, Mr Sheehan, on the 28th November 2016, was convicted on four counts, viz-possession of a firearm contrary to s. 27A of the Firearms Act 1964, possession of ammunition contrary to the same provision, unlawful discharge of a firearm contrary to s. 8 of the Firearms and Offensive Weapons Act 1990, and assault causing serious harm contrary to s. 4 of the Non-Fatal Offences against the Person Act 1997. In addition, and prior to his trial, he pleaded guilty to two counts of criminal damage contrary to s. 2 of the Criminal Damage Act 1992. The appellant was subsequently sentenced on the 14th February 2017 to a term of fourteen years’ imprisonment with the final three years suspended in respect of each of the possession counts, seven years’ imprisonment in respect of the unlawful discharge count, and to twelve years’ imprisonment with the final two years suspended in respect of the count of s. 4 assault, to run concurrently. The appellant appealed to the Court of Appeal against conviction. The appellant submitted that the trial judge erred: (i) in fact and in law in failing to accede to a motion brought on behalf of the appellant to have the trial transferred to the Dublin Circuit, pursuant to s. 32 of the Courts and Court Officers Act 1995; (ii) in refusing an application to allow the appellant’s legal team to come off record; (iii) in refusing to discharge the jury; (iv) in admitting evidence purportedly from a mobile phone, in circumstances in which the provenance and integrity of the relevant data had not been proven; (v) in misdirecting himself as to the law relating to adverse inferences arising from the utilizing of s. 18 and 19 of the Criminal Justice Act 1984 as amended; (vi) in law and fact in his charge to the jury; (vii) in admitting CCTV footage which was of such poor quality that it required a narrative as to what was visible in it; (viii) in failing to accede to the application to withdraw the case from the jury at the end of the prosecution case; and (ix) the verdicts were perverse and against the weight of the evidence.

Held by the Court that, having applied the provisions of s. 3(1)(a) of the Criminal Procedure Act 1993 (the proviso), notwithstanding the error in relation to the refusal of the judge to permit the appellant’s lawyers to come off record, and having rejected all other grounds, no miscarriage of justice had actually occurred. The Court affirmed the conviction.

The Court held that the appeal against conviction would be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered on the 25th day of May 2020 by Mr. Justice McCarthy

Preliminary

1 This is an appeal against conviction. On the 28th November 2016, the appellant was convicted on four counts, viz- possession of a firearm contrary to s. 27A of the Firearms Act, 1964, possession of ammunition contrary to the same provision, unlawful discharge of a firearm contrary to s.8 of the Firearms and Offensive Weapons Act, 1990, and assault causing serious harm contrary to s.4 of the Non-Fatal Offences against the Person Act, 1997. In addition, and prior to his trial, he pleaded guilty to two counts of criminal damage contrary to s.2 of the Criminal Damage Act, 1992.

2 The appellant was subsequently sentenced on February 14th 2017 to a term of fourteen years’ imprisonment with the final three years suspended in respect of each of the possession counts, seven years’ imprisonment in respect of the unlawful discharge count, and to twelve years’ imprisonment with the final two years suspended in respect of the count of section 4 assault, to run concurrently.

Background

3 These offences concern incidents which occurred on the night of the 14th/15th of May 2016 in the Laurel Ridge and Hollywood Estate area of Shanakiel, Cork: these are two housing estates situate immediately adjacent to each other and between Blarney Road and Harbour View Road. Prior to the shooting on the evening of Saturday the 14th of May 2016 at approximately 7p.m, one Dylan Cunningham was in a fast food restaurant known as ‘Dinos’ in Blackpool with his girlfriend Ciara Sheehan, who was later shot. The appellant entered the premises and punched Dylan Cunningham in an unprovoked assault. Later that evening, Dylan Cunningham's home at No. 37 Hollywood Estate was subject to criminal damage, in that at 12.15 a.m. the front patio door was smashed. A short time later, the home of the appellant at No. 7 Laurel Ridge was also subject to criminal damage, at approximately 12.30 a.m. when windows were broken. At approximately 1.00 a.m. or a few minutes thereafter (there was much debate at the trial as to times) on Sunday the 15th of May 2016, Ciara Sheehan was standing in the front room of No. 37 Hollywood Estate when she heard what she describes as a loud bang like a firework and then she heard buzzing in her ear. She had been shot in the neck. Ms. Sheehan was taken to Cork University Hospital where she received medical attention and on examination, the medical team identified a penetrating wound to her right neck from which a bullet was removed.

4 While dealing with the call to the Gardaí occasioned by the damage to No. 37 Hollywood Estate, Gardaí were notified that the property of one Michael Condon at No. 57 Harbour View Road was damaged by two male youths. Inspector Ronan Kenneally, on his way to the shooting incident at Hollywood Estate, observed the appellant, being one of them, committing criminal damage to the house and a car; charges arising therefrom gave rise to pleas of guilty. The appellant left in a Nissan Almera with a 02 C registration; this vehicle come to a stop on Harbour View Road at the entrance to Laurel Ridge and the appellant alighted from the front the passenger seat and ran into Laurel Ridge. He was followed by a Garda, and after a chase, he was arrested for the possession of a firearm at No. 37 Hollywood Estate with intent to endanger life.

5 The car from which the appellant alighted was found to have a golf club, a hurley and a mobile phone in the footwell of the front passenger side. As part of the investigation, the appellant's home at No. 7 Laurel Ridge was searched pursuant to s.29 of the Offences Against the State Act,1939 as amended. No firearm was recovered; however during this search, a CCTV system was recovered which proved to be probative. This showed the appellant at 12.05 (in fact 12.51 a.m. as the system was 46 minutes behind time) in the morning in question with a gun in his right hand, and some two minutes later, getting a glove from the car in the drive and putting it on his right hand. At 1.08 am (corrected time) he could be seen leaving his own home and climbing over a wall into Hollywood Estate. Four minutes and five seconds later, he was seen to return to the front of his house from the opposite direction with no firearm in his hand.

6 During the afternoon of Sunday, the 15th of May 2016, a Garda Dave Barry recovered a Smith and Wesson pistol, a firearm as defined under the Firearms Acts, at the base of a one-metre-high dividing wall at Hollywood Estate and Laurel Ridge. A discharged shell was found on the 10th of June 2016 at the rear of No 37 Hollywood Estate. The bullet recovered from Ms. Sheehan's neck had class characteristics comparable to those of the Smith and Wesson semi-automatic pistol recovered. This ammunition was ammunition as defined under the Firearms Act.

7 The mobile phone recovered in the Nissan Almera showed a “dialogue stream” from Facebook and we shall refer again to that below. During his detention, Gavin Sheehan was interviewed.

8 During interview, he acknowledged that the Nissan Almera car was his and he accepted that the golf club and hurley found in that car were also his. He said he may have gone to Hollywood Estate on the night in question; the reason he gave was; “to talk to a girlfriend or to get picked up, I don't know”. He acknowledged that he was in dispute with the Cunningham's. He failed to cooperate in any way in relation to the shooting incident or to assist in the recovery of the firearm while in custody.

Grounds of Appeal

9 The appellant submits that the trial judge erred:-

i. in fact and in law in failing to accede to a motion brought on behalf of the appellant to have the trial transferred to the Dublin Circuit, pursuant to s. 32 of the Courts and Court Officers Act, 1995;

ii. in refusing an application to allow the appellant's legal team to come off record;

iii. in refusing to discharge the jury;

iv. in admitting evidence purportedly from a mobile phone, in circumstances in which the provenance and integrity of the relevant data had not been proven;

v. in misdirecting himself as to the law relating to adverse inferences arising from the utilizing of s. 18 and 19 of the Criminal Justice Act 1984 as amended;

vi. in law and fact in his charge to the jury;

vii. in admitting CCTV footage which was of such poor quality that it required a narrative as to what was visible in it;

viii. in failing to accede to the application to withdraw the case from the jury at the end of the prosecution case;

and;

ix. that the verdicts were perverse and against the weight of the evidence.

Ground i

The trial judge erred in fact and law in failing to accede to a motion brought on behalf of the appellant to have the trial transferred to the Dublin Circuit, pursuant to section 32 of the Courts and Court Officers Act, 1995.

10 The case had been first listed some days before the trial date for the purpose of fixing a date for it; this listing occurred at the sittings...