The Director of Public Prosecutions v Tynan & Fitzgerald

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Isobel Kennedy
• Judgment Date: 10 April 2025
• Neutral Citation: [2025] IECA 118
• Docket Number: Record Numbers: CA316/18

Between/

The People at the Suit of the Director of Public Prosecutions

Respondent/

and

Stephen Tynan.

and

Raymond Fitzgerald.

Appellants

[2025] IECA 118

Edwards J.

McCarthy J.

Kennedy J.

Record Numbers: CA316/18

CA313/18

THE COURT OF APPEAL

Conviction – Murder – Accessory before the fact – Appellants appealing against conviction – Whether the trial judge erred in law in explaining to the jury the legal position of accessory before the fact upon a question from the jury in relation to same

Facts: The appellants, Mr Tynan and Mr Fitzgerald, on 23 November 2018, were convicted of the murder of Mr Guerrine. The grounds of appeal against conviction concerning Mr Tynan were as follows: (2) the trial judge erred in law in failing to direct the jury on a route to verdict of not guilty of murder but guilty of assisting an offender contrary to s. 7(2) of the Criminal Law Act 1997 on a like basis as he had in relation to the appellant’s co-accused; and (3) the trial judge erred in law in explaining to the jury the legal position of accessory before the fact, upon a question from the jury in relation to same. The grounds concerning Mr Fitzgerald were as follows: (1) the trial judge erred in law and/or in fact in allowing into evidence the CCTV footage in the trial; (2) the trial judge erred in fact and/or in law in allowing into evidence the automatic number plate recognition evidence; (4) the trial judge erred in fact and/or in law in allowing into evidence the voluntary cautioned statement of the appellant; (5) the trial judge erred in fact and/or in law in refusing the appellant’s application for a direction; (6) the trial judge erred in fact and/or in law in failing to address the jury on an issue raised by the appellant’s counsel about the vagueness of the indictment and the charge against the appellant; and (7) the trial judge erred in fact and/or in law in re-addressing the jury following receipt of a question from the jury.

Held by the Court of Appeal that, regarding Mr Tynan’s grounds: (2) the judge advised the jury repeatedly as to the verdicts open to them; and (3) the Court was not persuaded that the trial judge erred in his directions on joint enterprise. Regarding Mr Fitzgerald’s grounds, the Court held that: (1) similar to the situation in People (DPP) v Dunbar [2024] IECA 85, the evidence was highly relevant, it had the potential to (and indeed did) advance the investigation, identify suspects and provide relevant admissible evidence; (2) each line of text file contained certain data - the date, time, location, whether the journey was “into town” or “out of town”, the traffic lane, and a rating in terms of confidence assigned to the camera in question - there was evidence that the quality threshold had been passed; (4) the Court was not persuaded that there was a necessity to caution or to offer the opportunity for legal advice - the statement was provided in the appellant’s own home, on a voluntary basis, and it was exculpatory; (5) applying the well-known principles regarding withdrawing a case from the jury, the Court was not persuaded that the trial judge erred in refusing the application for a direction; (6) the concerns of the appellant were met in advance of the requisition - the jury were fully aware that if they were satisfied the deceased met his death before the Peugeot vehicle left the estate at 00:08 on 23 May 2015, then the alternative verdict under s. 7(2) of the Criminal Law Act 1997 was one which they needed to consider; and (7) the Court was not persuaded that the trial judge erred in his directions on joint enterprise.

The Court dismissed the appeal against conviction.

Appeal dismissed.

JUDGMENT of the Court delivered on the 10 ^th day of April 2025 by Ms. Justice Isobel Kennedy.

1 . This is an appeal against conviction. The appellants' trial commenced on the 23 ^rd of October 2018, and on the 23 ^rd of November 2018, the appellants were convicted of one count of murder of Mr. Andrew Guerrine.

Grounds of Appeal

2 . The appellants initially appealed their convictions on several grounds; however, each abandoned a ground concerning mobile telephone evidence following decisions of the Supreme Court in People (DPP) v Graham Dwyer [2024] IESC 39, People (DPP) v Smyth [2024] IESC 22, and People (DPP) v Gary McAreavey [2024] IESC 23.

3 . There now remains one ground common to both relating to the trial Judge's charge on accessory before the fact, dealt with as ground 3 of Mr. Stephen Tynan's submissions, and ground 7 of Mr. Raymond Fitzgerald's submissions.

4 . The grounds concerning Mr. Tynan, are now as follows:-

“2. The Learned Trial Judge erred in law in failing the direct the Jury on a route to verdict of not guilty of murder but guilty of assisting an offender contrary to section 7(2) of The Criminal Law Act 1997 on a like basis as he had in relation to the Appellant's co-accused.

3. The Learned Trial Judge erred in law in failing to direct the Jury the legal position of accessory before the fact, upon a question from the jury in relation to same.”

5 . The grounds concerning Mr. Fitzgerald are now as follows:-

• 1. The Learned Trial Judge erred in law and / or in fact in allowing into evidence the CCTV footage in the trial.

• 2. The Learned Trial Judge erred in fact and / or in law in allowing into evidence the Automatic Number Plate Recognition Evidence.

• 4. The Learned Trial Judge erred in fact and / or in law in allowing into evidence the voluntary cautioned statement of the Appellant.

• 5. The Learned Trial Judge erred in fact and / or in law in refusing the Appellant's application for a direction.

• 6. The Learned Trial Judge erred in fact and / or in law in failing to address the jury on an issue raised by the Appellant's Counsel about the vagueness of the Indictment and the charge against the Appellant.

• 7. The Learned Trial Judge erred in fact and / or in law in re-addressing the jury following receipt of a question from the jury.

Factual Background

6 . Mr. Guerrine was a first cousin of Mr. Tynan, and an acquaintance of Mr. Fitzgerald. The body of Mr. Guerrine was found on Steelstown Lane, Rathcoole, Co. Dublin on the 23 ^rd of May 2015 by a Mr. Shane Traynor at around 02:30, at which point the Gardaí were called. Mr. Guerrine was found stabbed over 20 times, and a child's jacket was found entangled around his foot. A Diazepam bottle containing 96 tablets was found on the deceased's person. The respondent contended that the appellants acted in concert to murder Mr. Guerrine. The evidence against each was circumstantial in nature.

7 . The statement of a Mr. Luigi Forte was read into evidence pursuant to s.16 of the Criminal Justice Act 2006. The evidence adduced was to the effect that Mr. Forte had been contacted by the deceased who wished to acquire Diazepam tablets. Mr. Forte's statement disclosed that he placed the tablets into a Centra bag, met with the deceased and that they travelled together on the Luas to Tallaght. On arrival there, they took a taxi to an entrance leading to the Knockmore and Killinarden estates whereupon both men walked into a park together. Mr. Forte could see the deceased moving into the park, he did not return, and then Mr. Forte returned to Tallaght.

8 . A Mr. Darren Finnegan gave evidence that he was the registered owner of a Peugeot 307, registration 04 D 53432 and that he missed two telephone calls from Mr. Tynan on the 22 ^nd May 2015. Shortly after these calls, Mr. Tynan and an unidentified man arrived at his house on the 22 ^nd May 2015 and purchased the vehicle. The vehicle had a defective headlight and taillight. The aforementioned child's jacket was confirmed by Mr. Finnegan as being his son's jacket and had been in the Peugeot at the time of sale. Evidence was adduced that the DNA profile generated therefrom matched that of a child of Mr. Finnegan and his partner.

9 . CCTV established the movements of a car with a defective headlight and taillight around the Tallaght area and at the location where Mr. Guerrine's body was found. In particular, CCTV footage was obtained from a garage, Discount Fuels, at 05:19 on the morning of the 23 ^rd May 2015, in which the registration number of the car is clearly visible, as are both the appellants who are seen pushing the vehicle to a petrol pump in order to refuel it. Mr. Fitzgerald is seen in the footage wiping the surfaces of the car with his sleeve.

10 . Mr. John Power of Forensic Science Ireland gave evidence that the Diazepam bottle contained Zopiclone tablets similar in makeup and design to those seized by Garda Andrew Lyons from Mr. Tynan at the time of his arrest.

11 . The car was subsequently found burnt out in an area known as the Barley Fields in Tallaght by Mr. Tom Menton, who gave evidence that he was a mechanic and was involved in motor salvage. He gave evidence that once he had retrieved the car, he received two calls from an individual asking if he had collected the car, and on both occasions, he confirmed he had, and the caller hung up without identifying themselves. The number which placed the calls was saved in Mr. Fitzgerald's phone as “LG”. The burnt-out car was confirmed to be Mr. Finnegan's car by Gardaí who linked the engine number to the number on his vehicle's logbook.

12 . Mr. John Kavanagh, Traffic Management Controller for South Dublin County Council, gave evidence in relation to automatic number place recognition (hereinafter “ANPR”) cameras. He gave evidence that Detective Garda Ronan O'Malley made a number of requests relating to a vehicle bearing a particular registration number, and Mr. Kavanagh stated that the said number plate was recorded on a camera in Castlewarden travelling out of town at 00:19 on the 23 ^rd, on a camera in City West travelling eastbound at 00:57, and again on the Castlewarden camera at 05:07.

13 . Mr. Fitzgerald made a voluntary exculpatory statement to Gardaí in which...