DPP v Smyth & McAreavey

JurisdictionIreland
JudgeBirmingham P.
Judgment Date28 July 2022
Neutral Citation[2022] IECA 182
CourtCourt of Appeal (Ireland)
Docket Number[53/21]
Between
The People at the Suit of the Director of Public Prosecutions
Respondent
and
Gary McAreavey
Appellant
The People at the Suit of the Director of Public Prosecutions
Respondent
and
Caolan Smyth
Appellant

[2022] IECA 182

The President

Edwards J.

Kennedy J.

[53/21]

[51/21]

THE COURT OF APPEAL

Conviction – Attempted murder – Assisting an offender – Appellants seeking to appeal against convictions – Whether the trial court fell into error in admitting evidence

Facts: The appellants, Mr McAreavey and Mr Smyth, were, on 5th January 2021, convicted by the Special Criminal Court of certain offences. Mr Smyth was convicted of counts of attempted murder and possession of a firearm with intent to endanger life contrary to s. 15(1) of the Firearms Act 1952 (as substituted and amended), while Mr McAreavey was convicted in respect of a single count of assisting an offender contrary to s. 7(2) and s. 7(4) of the Criminal Law Act 1997 (as amended). Both appealed their respective convictions to the Court of Appeal. There was a significant overlap in terms of the issues between the two appeals, which were heard together. Both appeals raised issues as to the admissibility of what had come to be known as “telephone evidence”. Counsel on behalf of Mr Smyth took the lead in challenging the admissibility of that evidence both before the trial court and before the Court of Appeal, while counsel on behalf of Mr McAreavey adopted and supported the position of his colleague. There was also a specific ground that applied only to Mr McAreavey’s appeal, which related to the question of identifying the ingredients or elements of the offence of assisting an offender, and ascertaining what the prosecution has to prove in that regard. In particular, it related to what must be proved about the extent of the state of knowledge of an accused.

Held by the Court that it agreed with the trial court that the public interest in the investigation of crime, part of which involves the rights of victims, comprehensively outweighed, to use the language of the trial court, any limited privacy rights attached to the data that was accessed in the investigation. Insofar as questions of admissibility of evidence are matters for national courts, the Court was of the view that the trial court did not fall into error in admitting the telephone evidence, and in those circumstances, the Court was not prepared to uphold the grounds of appeal that related to the telephone records. Regarding the offence of assisting an offender, the Court held that the approach of the trial court was the proper one. The Court held that there was no doubt about the fact that, because this was a penal statute, any ambiguity would have to be resolved in favour of the accused. Having expressly acknowledged that fact, the trial court asked itself whether any ambiguity did in fact exist and answered the question it had posed in the negative. The Court believed it was correct in doing so. In this case, the Court found missing the existence of a dual purpose. It was for that reason that the Court rejected the grounds of appeal relating to the interpretation of s. 7(2) of the 1997 Act, being of the view that the language of the statute was clear and unambiguous.

The Court had not been persuaded to uphold any ground argued on behalf of either appellant. The Court dismissed both appeals.

Appeals dismissed.

UNAPPROVED
NO REDACTION NEEDED

JUDGMENT of the Court delivered on the 28 th day of July 2022 by Birmingham P.

1

. Following a trial which had taken place throughout much of the Michaelmas term in 2020, both appellants were, on 5 th January 2021, convicted by the Special Criminal Court of certain offences. Caolan Smyth was convicted of counts of attempted murder and possession of a firearm with intent to endanger life contrary to s. 15(1) of the Firearms Act 1952 (as substituted and amended), while Gary McAreavey was convicted in respect of a single count of assisting an offender contrary to s. 7(2) and s. 7(4) of the Criminal Law Act 1997 (as amended). Both have appealed their respective convictions to this Court.

2

. There is a significant overlap in terms of the issues between the two appeals, which were heard together. Both appeals raise issues as to the admissibility of what has come to be known as “telephone evidence”. Counsel on behalf of Mr. Smyth took the lead in challenging the admissibility of this evidence both before the trial court and before this Court, while counsel on behalf of Mr. McAreavey adopted and supported the position of his colleague. There is also a specific ground that applies only to Mr. McAreavey's appeal, which relates to the question of identifying the ingredients or elements of the offence of assisting an offender, and ascertaining what the prosecution has to prove in that regard. In particular, it relates to what must be proved about the extent of the state of knowledge of an accused. Before turning to consider the issues raised, it might be helpful to provide a little more detail by way of background.

Background
3

. On 10 th May 2017, a Mr. James Gately was shot at the Topaz filling station at Clonshaugh Road in Dublin. At the time of the incident, Mr. Gately was wearing a bulletproof vest. He survived the shooting, though he subsequently underwent surgery in respect of a bullet wound to his neck. It was not really in controversy at trial that what had occurred was an attempted murder, and the question at trial – certainly in the case of Mr. Smyth – was whether the prosecution could prove beyond reasonable doubt who the individual was who had attempted to commit murder.

4

. The incident at the filling station was captured on CCTV which was of a very high quality. At about 1.30 pm that day, Mr. Gately was in the filling station in a purple Mondeo, when a black Lexus vehicle, bearing CD plates and registration 08D 51984, arrived at the location and pulled up beside the purple Mondeo. Shots were discharged from the Lexus hitting Mr. Gately. It was the prosecution case at trial that the individual who shot Mr. Gately was the now appellant, Mr. Smyth. He was charged with attempted murder and with the offence of possession of a firearm with intent to endanger life, the firearm being that which was used in the course of the attempted murder. At about 2.30pm, the Lexus which had been used in the course of the shooting was found burnt out at Newrath, County Louth. In the course of its judgment delivered on 5 th January 2021, the trial court referred to this vehicle as “the murder car”. The case that the prosecution mounted against Mr. Smyth was essentially one of circumstantial evidence, and had several strands to it.

5

. The prosecution was premised on the fact that it could be established as a matter of certainty that the vehicle involved in the shooting was the black Lexus 08D 51984. This was not really in dispute. The question then became whether the prosecution was in a position to prove beyond reasonable doubt that Mr. Smyth was the driver of the black Lexus on the day of the shooting and that it was he who had discharged the shots. Evidence was put before the trial court as to the movements of the vehicle on 9 th May (the day prior to the shooting) and 10 th May (the day of the shooting). The vehicle was seen coming and going from 3 Cuileann Court, Donore, County Meath – an address the prosecution contended could be linked to Mr. Smyth by various means, including a document which he had signed obliging him to live at that address. Moreover, when arrested in respect of this offence, he gave that address.

6

. On 9 th May 2017, an individual was seen leaving the address and an individual wearing precisely the same clothing, including distinctive tracksuit bottoms with particular markings on the rear calf, was identifiable at the Topaz filling station at 3.34pm. The prosecution contention at trial was that this visit to the filling station on 9 th May 2017 was by way of a rehearsal for what was intended to happen the following day. The vehicle was monitored as being in or around the area of 77 Glin Drive, Coolock, where the intended victim, Mr. Gately, resided. There were some features of the car which assisted in distinguishing it from other black saloon vehicles that might have been in the area, including blacked out windows and a particular set of alloy wheels. The prosecution case was that the vehicle was driven in and around the home of Mr. Gately, that the person driving it was the person who is visible in the filling station at 3.34pm, and that the person in question was Mr. Smyth.

7

. There was further evidence relating to the movements of the vehicle on 10 th May. There was evidence of the passage of the vehicle between the Topaz station where the shooting took place up to Dromiskin, referred to at trial as the “burning site”. At trial, the prosecution contended that, alongside the CCTV footage showing the movements of a vehicle, was the cell site analysis of a phone registered to the number 085-8208691, referred to throughout the trial and throughout the appeal as the “691 phone”. The prosecution case was that it was a phone that could be attributable to Mr. Smyth and that it could be attributable by a number of routes. Mr. Smyth had an involvement with a number of phones. At the time of his arrest in July, he was in possession of three phones, and six phones were found during the course of a search at Cuileann Court, though not all of these could be attributed to Mr. Smyth. One of the routes to attribution was through a phone which it was said could be attributed to Mr. McAreavey. On that phone were three numbers saved under the contact “QNU”. It was suggested this was a phonetic spelling of Caolan. One of these QNU numbers is the 691 number. Also saved as QNU was a number 085-8193625. In that regard, there was evidence from social welfare officers in relation to a...

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2 cases
  • The Director of Public Prosecutions (At the Suit of Garda Robert O'Grady) v Hodgins
    • Ireland
    • Court of Appeal (Ireland)
    • 7 Julio 2023
    ...relevance to the consideration of the issues in this case. The DPP referred to other cases such as The People (DPP) v McAreavy and Smyth [2022] IECA 182 which dealt with the admissibility of evidence alleged to have been obtained unlawfully and in breach of the privacy rights of the accused......
  • DPP v Dwyer
    • Ireland
    • Court of Appeal (Ireland)
    • 24 Marzo 2023
    ...be applied to rights protected under the Charter than to rights protected under the Constitution.” 98 . In DPP v. McAreavey & Smyth [2022] IECA 182, this Court (Birmingham P.) noted that it is for national courts to determine questions of admissibility of evidence gathered under the 2011 Ac......

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