The People (At the Suit of the DPP) v Gavin Sheehan

• Jurisdiction: Ireland
• Judge: Ms. Justice Iseult O'Malley
• Judgment Date: 29 July 2021
• Neutral Citation: [2021] IESC 49
• Docket Number: [Supreme Court Appeal No.:114/2020],[S.C. No. 114 of 2020]
• Year: 2021
• Court: Supreme Court

Between:

The People (At the Suit of the Director of Public Prosecutions)

Prosecutor/Respondent

and

Gavin Sheehan

Accused/Appellant

[2021] IESC 49

MacMenamin J.

Dunne J.

Charleton J.

O'Malley J.

Woulfe J.

[Supreme Court Appeal No.:114/2020]

THE SUPREME COURT

Judgment of Ms. Justice Iseult O'Malley delivered the 29 ^th July 2021

Introduction

1 The appellant was convicted in the Circuit Court on one charge of assault causing serious harm and three charges involving firearms offences. The four charges arose from events that took place on the night of Saturday/Sunday the 14 ^th/15 ^th May 2016, culminating in a shooting that caused serious injury to a Ms. Ciara Sheehan. The convictions were upheld by the Court of Appeal (see People (DPP) v. Gavin Sheehan [2020] IECA 142).

2 In summary, the appellant contends, firstly, that the trial judge wrongly refused to allow him to discharge his legal representatives at the start of the trial (“the representation issue”); secondly, that the Court of Appeal, having found in his favour on that issue, subsequently erred in applying the “proviso” of s.3(1)(a) of the Criminal Procedure Act 1993 to its decision (“the proviso issue”); and, thirdly, that provisions of the Criminal Justice Act 1984 (as amended by the Criminal Justice Act 2007) permitting inferences to be drawn from his responses to garda questioning were wrongly applied in the trial (“the inferences issue”).

The evidence in the case

3 Since this was a case that depended entirely on circumstantial evidence, and since the Court of Appeal considered it appropriate to apply the proviso in respect of that evidence, it will be necessary to set it out in somewhat greater detail than usual.

4 The appellant lived in an estate called Laurel Ridge in Cork. This is directly adjacent to Hollywood Estate, where a family called Cunningham lived. There is a low wall running between the two estates. According to the evidence in the trial, the appellant's home was very close to the wall and the Cunninghams' house was a slightly longer distance away on the other side.

5 At about 7 pm on the evening of Saturday the 14 ^th May 2016 the appellant and Mr. Dylan Cunningham had some form of physical altercation in a fast food restaurant. Mr. Cunningham and his girlfriend, Ms. Ciara Sheehan, went back to Mr. Cunningham's family home in Hollywood Estate a few hours later. At 12.15 am on the morning of the 15 ^th May the window of the front door of the Cunninghams' house was broken. About fifteen minutes later, some windows of the appellant's house were broken. Gardaí were called to the Sheehans' house as a result of the latter incident.

6 A short time later, Ms. Sheehan was standing in the front room of the Cunninghams' house when a shot was fired through the window, hitting her in the neck. The exact time of this event was the subject of much debate in the trial. Several Gardaí gave evidence that they heard about the shooting in a radio call that was circulated at around 1 am, and that they were at the scene shortly afterwards. The garda recording system indicated that a 999 call was received at 1.08 am. The defence argued that this meant that the shooting must have been some time before 1.08 am, and that in fact the call might have been made earlier also (since it was routed to the ambulance service before being transferred to the Gardaí, and no evidence was called as to the time the ambulance service received it). Mr. Cunningham had taken Ms. Sheehan to hospital in his car before the Gardaí or ambulance arrived.

7 A short time later some Gardaí observed the appellant in the act of committing criminal damage to the property of another person. He left that scene in a car, was seen to exit from the front passenger side at the entrance to Laurel Ridge, and was arrested by the pursuing Gardaí under s.30 of the Offences Against the State Act 1939, on suspicion of possession of a firearm with intent to endanger life at Hollywood Estate.

8 The appellant subsequently admitted that the car was his. A mobile phone was found in the footwell of the passenger seat in which he had travelled. His home was searched and the domestic CCTV system was examined. Other footage, obtained from neighbours of the Cunninghams and from a nearby petrol station, was also examined. Allowing for necessary adjustments to the times shown on the various systems, the footage showed the following:

• (i) At 12.16 am the appellant took an object from a bin at his house, showed it to people in a car and then put it back in the bin. The prosecution contended that the object was a handgun.

• (ii) At 12.29 am the appellant left in a car.

• (iii) At about 12.30 am two men came to the Sheehans' house and broke some windows. Two Gardaí attended shortly after and were at the house until very shortly after 1.00 am.

• (iv) The appellant returned to the house before the Gardaí left. After they had gone he searched through the bin. His father was present. In interview the appellant said that he had been looking in the bin for a bottle of vodka.

• (v) After the Gardaí left, the appellant remained present in the company of his father until 1.07 am.

• (vi) At 1.07 am the appellant left through the front gate of his property with an object in his right hand, and went in the direction of the boundary wall with Hollywood Estate. A few seconds later he climbed over the wall into Hollywood Estate.

• (vii) At 1.08 am a man was seen running near the terrace where the Cunninghams lived. The prosecution contended that this man was wearing the same clothes and had the same build as the appellant.

• (viii) At 1.09 am a shape which the prosecution contended was a person, climbed over the boundary wall into Laurel Ridge.

• (ix) At 1.11 am a man, identified by the prosecution as the appellant, came to the outside of the appellant's house and got into a car which then drove off. The man did not have anything in his hands.

9 A pistol was found beside the estate wall later that day, while a bullet casing was recovered from a resident's garden. A garda ballistics expert gave evidence to the effect that the bullet casing had been discharged by the pistol. He could not say whether the bullet recovered from Ms. Sheehan's neck came from this pistol, but it did bear characteristics comparable with the firearm.

10 The mobile phone that had been found in the car was examined and the prosecution adduced evidence of certain messages discovered on the Facebook Messenger app. These were attributed by the prosecution to the appellant, although not admitted by him, on the basis of his proximity to the phone in the car and because some messages referred to “Gavin” or “Gav”. The prosecution relied upon photographs (not screen shots) of the following messages in particular:

• • “Yeah, thanks. While the uncles are out, Aaron told my dad for me, let you know where you are coming up to Cia's with the boys ‘til later instead of driving. Gavin, serious”

• • “I will, yeah. Ha ha ha.”

• • “Why –”

• • “Why not like”

• • “Wait ‘til later. Go looking then. You better have a few heads with you. It's grand you fight Cunna, but if there are there – and if there are three and loads of them, there'll be murders.”

• • “I'm packing well.”

• • “Gav, in all fairness, things are going to get out of hand.”

11 The admissibility of this material was challenged, but it was admitted by the trial judge on the basis that the phone was found in the car on the side from which the appellant had emerged, and he had been the only “Gav”, or “Gavin” in the car.

12 In interviews conducted under the normal caution, the appellant denied having had a firearm or having fired the shot. He agreed that it would take a few seconds to get from his house to the wall between the estates, and that the Cunninghams lived about 50m away on the other side. He went that way “20/30 times a day”. He admitted that he had “probably” gone into Hollywood Estate during the night, perhaps to talk to a girlfriend or to get picked up. He said that he could not remember where he had gone after that, because he had been drunk. He thought he just walked home. The Gardaí put it to him that the CCTV footage from his home showed him with a silver handgun in his hand at 12.16 am – he denied this and said that it was “probably” a knife or an imitation gun. When asked why he had wrapped up the gun and put it into the wheelie bin, he said that he did not wrap anything up, had no gun, and put nothing in the bin. He had opened the bin at a later stage because he had vodka in it. He was asked about the footage of him showing the object to people in the car, and he said it was a hook knife.

13 The pistol that was found by the Gardaí was shown to the appellant. He denied firing the shot. It was put to him that the footage showed him coming over the wall from Hollywood Estate at an earlier time in the night with a golf club. He denied having broken the door at the Cunningham's house, agreed that he had no reasonable explanation for having the club but said that he did not know if it was him in the footage.

14 In the course of the final interview, the Gardai invoked s.18 of the Criminal Justice Act 1984, as amended, in asking the appellant to account for his possession of the handgun believed to be visible in the CCTV footage of his home in Laurel Ridge. They told him that they believed that his possession of the firearm at that location was linked to his unlawful possession of a firearm at the house in Hollywood Estate. He responded by, variously, denying having a gun or saying that he had nothing to say. It was further put to him that the messages on the phone were conversations that he had had with a third party on the night, and that they were consistent with and attributable to his participation in the offence for which he had been arrested and detained. He was asked whether there was any explanation for...