DPP v Ryan
| Jurisdiction | Ireland |
| Judge | Mr. Justice Birmingham |
| Judgment Date | 12 May 2016 |
| Neutral Citation | [2016] IECA 147 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No. 99/2013 |
| Date | 12 May 2016 |
Birmingham J.
Sheehan J.
Mahon J.
Record No. 99/2013
THE COURT OF APPEAL
Conviction – Murder – Admissibility – Appellant seeking to appeal against conviction – Whether admissions by the appellant which went to the jury should have been excluded from evidence
Facts: The appellant, Mr Ryan, on the 27th May, 2007, drove a high powered motorbike to 46A Fortlawn Park, Blanchardstown. The?pillion passenger, who was in possession of a shotgun, got off the motorbike and approached the house where a party was taking place and fired through the window. A Mr Tobin was killed. On the 22nd March, 2013, the appellant was convicted of the murder of Mr Tobin. That conviction was in fact the second occasion on which a jury had returned a verdict of guilty against Mr Ryan, as he had been convicted earlier in December 2008, but that conviction was set aside in November 2011, following an appeal to the Court of Criminal Appeal which quashed the conviction and directed a re–trial. The appellant appealed to the Court of Appeal against his conviction, contending that the confession or admissions by the appellant which went to the jury should have been excluded from evidence. Linked to and feeding into this contention was the refusal to allow a psychologist to give evidence. The challenge to the admissibility was itself based on a number of sub grounds, namely: (i) the denial of a level of access to a solicitor which would be reasonable and adequate; (ii) minimal standards of fairness were not observed at the interview giving rise to oppression and to the fact that the admissions could not be said to be voluntary; (iii) the interviews must be considered cumulatively and irregularities at earlier interviews, including interviews of the first detention period continued to impact on the appellant and there was a causative link between earlier irregularities and the admissions eventually made including those which were admitted in evidence.
Held by Birmingham J that, concerning the access to a solicitor, insofar as there were disputed issues of fact to be resolved the trial judge was in an infinitely better position to determine them than the Court of Appeal. In the Court?s view, the judge acted properly in permitting admissions by the appellant to go before the jury. Concerning the lack of voluntariness and fairness, Birmingham J held that the conclusions reached by the trial judge coincided with the views of the trial judge in the first trial and that the decision of both trial judges involved findings of fact with which the Court of Appeal was not in a position to interfere. Concerning the causal link, the Court noted that the conclusions reached by the trial judge in the present case accorded with the views of the Court of Criminal Appeal in the first appeal. Again, in the view of the Court, this was a conclusion that the judge was fully entitled to reach. In the view of the Court this was not a case for admitting the evidence of a psychologist.
Birmingham J held that the Court had not been persuaded that the conviction was unsafe. The Court rejected the appeal and affirmed the conviction.
Appeal dismissed.
On the 22nd March, 2013, after a 23 day trial, the appellant was convicted of the murder on the 27th May, 2007, at 46A Fortlawn Park, Blanchardstown, of Ian Tobin. The case presented by the prosecution was that Mr. Ryan had driven the high powered motorbike which had brought the gunman to the crime scene at Fortlawn Park. There the pillion passenger, who was in possession of a shotgun, got off the motorbike and approached the house where a party was taking place and fired through the window.
The prosecution contention was that the intention had been to kill Blake Tobin, brother of the deceased, but that the murder victim Ian Tobin, who was not the intended target, was at the wrong place at the wrong time. It is of some significance that the conviction in March 2013, was in fact the second occasion on which a jury had returned a verdict of guilty against Mr. Ryan, as he had been convicted earlier in December 2008, but that conviction was set aside in November 2011, following an appeal to the Court of Criminal Appeal which quashed the conviction and directed a re-trial. The verdict on this occasion was by a 10 – 2 majority.
There were essentially two elements to the prosecution case. Admissions by the appellant that he had been the driver of the motorbike and had burned the bike and his clothing after the shooting and evidence from Kevin Whelan, an associate of the appellant and a participant on the witness protection programme. Mr. Whelan was the key prosecution witness and he gave evidence of having discussed with the appellant a previous incident involving one Michael Murray, now deceased, who was alleged to have been the pillion passenger and Blake Tobin which had given rise to ill will or bad blood between them. Mr. Whelan's evidence was that the appellant had on a number of occasions told him that Mr. Murray was going to kill Blake Tobin and more specifically that Mr. Murray was going to shoot him. The witness's evidence was that he had a conversation on one occasion with Mr. Murray at the McDonalds Drive-Thru in Blanchardstown when Mr. Murray asked him to help him ?get? Blake Tobin. His evidence was that Bryan Ryan was present at McDonalds on the day of that discussion, but that it took place out of his hearing.
In addition to the evidence concerning conversations that he had with the appellant prior to the murder, Mr. Whelan gave evidence that was specific to the night of the incident. His evidence was that there were numerous phone calls between him and Bryan Ryan and that these phone calls were made by the appellant who was using a phone belonging to Michael Murray. The prosecution had intended to put evidence in relation to the telephone contact between the Murray/Ryan phone and the Whelan phone before the jury with a view to supporting or corroborating the evidence of Mr. Whelan, but this was excluded by the trial judge after a challenge to its admissibility.
The appellant has formulated a large number of grounds of appeal and these have been advanced in written and oral submissions. It is fair to say that not all grounds have been pressed with equal force. Many of the issues now raised on this appeal featured in the original trial in December 2008 and were addressed by the Court of Criminal Appeal in its judgment of the 11th March, 2011. However, the evidence at the first trial and on the re-trial was not identical in every respect, so the conclusions of the Court of Criminal Appeal, while significant, do not bind this Court. The appeal to the Court of Criminal Appeal in 2011 succeeded on one ground and one ground only, namely, that the trial judge had not given an appropriate warning in relation to the fact that Mr. Whelan had been admitted to the witness protection programme and all other grounds were rejected.
In summary, the grounds of appeal in this application related to:
(i) The admissibility of confession or admission evidence.
(ii) A ground in relation to the endorsement of an arrest warrant under the provisions of s. 30A of the Offences Against the State Act 1939, as amended, in circumstances where Detective Superintendent Hubert Collins had obtained a warrant to arrest from Judge McMahon in the District Court in Kilmainham and then endorsed the back of the warrant for execution to Sergeant Michael Kennedy.
(iii) That the garda entry to the premises where the appellant was in order to arrest him on foot of a s. 29 Offence Against the State Act warrant was unlawful – this is a ?Damache? point.
(iv) Refusal to admit evidence of psychologist – this arises in a situation where the defence had obtained a report from Dr. Kevin Lamb psychologist and were anxious to call him as a witness to give evidence in accordance with the terms of his report.
(v) Refusal to defer evidence of Kevin Whelan – this arises in circumstances where the defence were anxious that the evidence of Kevin Whelan should not be taken until a voir dire in relation to the admissions made while in custody by the appellant had concluded.
(vi) A refusal to allow editing of transcript of interviews. This relates to an exchange between interviewing gardaí and Mr. Ryan after he had made admissions.
(vii) Refusal to put the manslaughter defence to the jury. This arose in circumstances where admissions made by the appellant were so called ?mixed? admissions ie. part exculpatory and part inculpatory.
(viii) Refusal to give voice recognition warning. This relates to a request for a voice recognition warning in relation to the evidence of Mr. Whelan that he had a number of telephone conversations with the appellant at or about the time of the murder.
(ix) The complaint about the characterisation of the closing speech of defence counsel as speculation by the trial judge. This arises from the fact that the trial judge when, in the course of his charge, he was telling the jury not to speculate, he gave as an example of speculation, an idea canvassed in the closing speech by the defence that Mr. Whelan might have been the gunman.
(x) The level of participation for a person to be an accomplice. This arises from the fact that the judge when dealing with the issue of participation in a crime and the concept of an accomplice gave as an example of an accomplice that if Mr. Whelan drove the motorcycle to the murder that would render him an accomplice. This arises from a debate at trial about a so called ?chicken and egg? scenario which meant that if the jury rejected the admissions made by the appellant then the evidence of Mr. Whelan in respect of which...
To continue reading
Request your trial