BAILII
British and Irish Legal Information Institute


Freely Available British and Irish Public Legal Information

[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Irish Court of Appeal


You are here: BAILII >> Databases >> Irish Court of Appeal >> The Director of Public Prosecutions v Tynan & Fitzgerald (Approved) [2025] IECA 118 (10 April 2025)
URL: http://www.bailii.org/ie/cases/IECA/2025/2025IECA118.html
Cite as: [2025] IECA 118

[New search] [Printable PDF version] [Help]

THE COURT OF APPEAL

Neutral Citation: [2025] IECA 118

Record Numbers: CA316/18

CA313/18

 

Edwards J.

McCarthy J.

Kennedy J.

 

 

BETWEEN/

 

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

 

RESPONDENT/

 

- AND -

 

Stephen Tynan.

 

- AND -

 

Raymond Fitzgerald.

 

APPELLANTS

 

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

1.        This is an appeal against conviction. The appellants' trial commenced on the 23rd of October 2018, and on the 23rd 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 23rd 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 22nd May 2015. Shortly after these calls, Mr. Tynan and an unidentified man arrived at his house on the 22nd 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 23rd 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 23rd, 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 he claimed to have last been in the Peugeot 307 a few weeks prior to the murder, and that he had been "out with a few of the lads" on the 22nd May 2015, that he had been home on the morning of the 23rd May 2015, and that he wasn't with Mr. Tynan on the night of the 22nd May 2015.

14.   Mr. Tynan also made a voluntary statement, giving an account of the last time he saw Mr. Guerrine on the 20th or 21st May 2015, claiming that Mr. Guerrine had stayed over at his apartment on one of those nights. Mr. Tynan said the last time he saw him he was with an unidentified male, and they both left the apartment shortly after Mr. Tynan returned from work.

15.   Mr. Bernard Quinn, Company Secretary of Concast Concrete Limited, gave evidence that Mr. Tynan had worked for the company from the 29th January 2015 to the 27th May 2015. He stated that Mr. Tynan had worked on the 22nd May 2015, but had not returned to work thereafter.

16.   Mr. Guerinne's sister gave evidence that he arrived at their house in Dublin 8 where she lived with her mother, at around 20:30 on the 22nd May 2015. She stated that he was looking for somewhere to stay, but was refused as he had a serious drug problem and owed money to people, some of whom demanded the money be paid by the family. They arranged for him to stay at a hostel and he left at 9:37pm.

17.   Mr. Roland Brady gave evidence that on the 22nd May 2015 he was working as a taxi driver and picked up a fare of two men around 23:30 at the Square in Tallaght. He later said in a statement to the Gardaí that he was 99 percent certain one of the men was the deceased.

18.   Gardaí made a number of a requests for call data information as part of the investigation, and evidence was given at trial by Garda Eamon O'Brien in relation to the activity between Mr. Guerrine's phone number and Mr. Forte's phone number, and by Mr. Connor O'Callaghan, a telecommunications engineer, in relation to cell site analysis.

19.   An analysis of the results showed contact between Mr. Guerinne and Mr. Tynan on the 22nd May 2015. Cell location data showed movement on Mr. Guerrine's phone as he travelled from his mother's house in Dublin 8 out to Tallaght. It also showed repeated contact between the two co-accused on the 23rd May 2015, contact between Mr. Guerrine and Mr. Forte, and contact between Mr. Tynan and Mr. Finnegan. The last activity on Mr. Guerrine's phone was at 00:18 on the 23rd May 2015, where Mr. Guerrine's phone called Mr. Forte's phone but went to voicemail, using the cell site located on the Gargan Farm, Rathcreedon on the Newcastle Road. Analysis of the cell site locations showed that Mr. Fitzgerald's phone connected with a mast near Rathcoole at 00:52 on the 23rd May 2015, and with cell sites in Tallaght before and after this connection.

Stephen Tynan Ground 2: Alternate Verdict

20.   Mr. Tynan's second ground is as follows:-

"The Learned 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 section 7(2) of the Criminal Law Act 1997 on a like basis as he had in relation to the Appellant's co-accused."

Background

21.   Counsel for Mr. Tynan, in his closing speech to the jury, invited the jury to consider the alternative verdict of assisting an offender contrary to s.7(2) of the Criminal Law Act 1997, contending that on the evidence the appellant could be considered to be a mere facilitator in respect of the purchase of Mr. Finnegan's vehicle and the drug purchase involving the deceased, but played no part in the murder itself. Counsel sought to argue that the unidentified man who accompanied Mr. Tynan to Mr. Finnegan's home could have been the actual murderer.

22.   In charging the jury, the trial judge stated:-

"The only direction on the inferences that I'm going to guide you on are, in fact, ones that you cannot draw.  I'm giving you a direction on those of what inferences you cannot draw.  The other matters which the prosecution contend are a matter absolutely for you, members of the jury.  I'm just, for your assistance, drawing them to your attention.  You cannot draw an inference that it was Raymond Fitzgerald who was with Stephen Tynan when he called to Darren Finnegan's home to procure the car, the evidence does not support that.  You cannot draw any inference on the whereabouts of Raymond Fitzgerald from the time of Andrew Guerrine's entrance into the pedestrian passageway at approximately 11.30 pm, up until a few minutes before 12.08 am when the vehicle was seen leaving at Knockmore Gardens.  It therefore is my duty to give you a specific direction in relation to the evidence against Raymond Fitzgerald.  The only evidence adduced by the prosecution against Raymond Fitzgerald in the time from Mr Guerrine's arrival at the pedestrian entrance between Knockmore and Killinarden at approximately 11.35 pm and the departure of the motor vehicle on Knockmore Gardens at 12.08 am on the 23rd of May are the telephone records of 0858371266 allegedly attributed to Stephen Tynan and the telephone records of 0851342682 allegedly attributed to Raymond Fitzgerald. The vehicle was on Knockmore Gardens at 11.51 pm on the 22nd of May. It is open to you to infer that Mr Fitzgerald got into the vehicle sometime between 11.51 pm and 12.08 am. If you decide there is a reasonable possibility that Mr Guerrine was murdered at the general location he arrived at initially before he was in the vehicle or put into the vehicle you must bring in a verdict of not guilty to murder against Mr Fitzgerald and consider the alternative verdict which I will explain to you."

23.   Counsel for the appellant raised a requisition and submitted:-

"MR CLARKE: The prosecution are making out the case that he [the Appellant] did meet him [Mr. Guerrine] but as the Court will know that when we closed the case we closed on the possibility that if there's a reasonable possibility that somebody else was involved, that a drugs transaction or Diazepam transaction, Mr. Tynan was involved in organising that but he didn't know what was going to happen, well then he would be not guilty of murder but could be guilty of the alternative verdict under section 7 (2).  Now, I note that the Court hasn't spelled that out to them [the jury], that that's their path too in section 7 (2) in the same way as the Court has spelled out a path to section 7 (2) for Mr. Fitzgerald.  Perhaps in the circumstances of the case, it might be important to spell that out also, that if it is reasonably possible that Mr Tynan was not – [involved in the plan to] kill him and that he later got involved in assisting an offender after the event, that that would be not guilty of murder but guilty of an offence contrary to section 7 (2)."

24.   In rejecting this requisition, the trial judge stated:-

"I'm concerned about the next requisition that Mr Clarke raised was basically to canvass with the jury the evidence of why there should be an alternative verdict for Stephen Tynan.  I mean, if I get into that, it's clear that I've already determined that the evidence against Mr Tynan as put forward by the prosecution is materially more extensive than that against Mr Fitzgerald in relation to the time before the motor vehicle left Knockmore Gardens and I'm reluctant to do that, both for reasons of causing possible further prejudice or any prejudice to Mr Tynan and in fairness to the prosecution I'm not going to revisit that."

Submissions of the Appellant

25.   The appellant submits that the trial judge erred in failing to charge the jury on the possibility of the alternate verdict raised in the appellant's closing speech.

The appellant submits that the trial judge effectively ruled that if he were to set out a path to a verdict of not guilty, but guilty of an offence contrary to s.7(2) of the Criminal Law Act 1997, he would have had to set out for the jury the additional evidence against the appellant, as he found the weight of the evidence against the appellant to be greater than the evidence against his co-accused. The appellant submits that his reasons for not doing so, those being "possible further prejudice" to the appellant, and "in fairness to the Prosecution" were inconsistent.

26.   The appellant submits that the there was an evidential basis for the verdict set out during the appellants closing argument, and there was an obligation for the trial judge to charge the jury on this point once raised by the appellant, even if he was required to point out the evidence for and against the appellant's contention.

27.   The appellant also submits that the error was compounded and further prejudiced the appellant because of the fact that the trial judge's charge detailed a path to an alternate verdict for the appellant's co-accused, but not for the appellant.

Submissions of the Respondent

28.   The respondent argues that, the submission that the issue of an alternative verdict was not set out in a like matter for both appellants, ignores that the fact that the trial judge specifically addressed the jury and informed them of the possible verdicts open to them, including the alternative verdict of an offence contrary to s.7(2) as follows:-

"Now, members of the jury, I have to now deal with what verdicts are open to you and there are three verdicts open to you and the second verdict will not appear on the issue paper and I'd ask you, jury foreman, to note down the alternative verdict when I deal with it.  Well, the first one is obvious, it's on the indictment.  It's one of murder, that verdict is open to you.  The second verdict that is open to you, both in relation to Mr Stephen Tynan and Mr Raymond Fitzgerald is an offence set out at section 7 (2) of the Criminal Law Act 1997 and it's an alternative verdict to murder and that states: "Where a person has committed an arrestable offence, any other person who knowing or believing him or her to be guilty of the offence or of some other arrestable offence does without reasonable excuse any act with intent to impede his or her apprehension or prosecution shall be guilty of an offence and it I suppose has been colloquially described to you here as accessory before the fact and you've already heard my directions to you on the law in relation to that matter.  So, that alternative verdict is available to you in relation to both accused persons.  It's a matter for you entirely.  Obviously the third verdict, if you're not satisfied beyond a reasonable doubt of the guilt of either accused, you must bring in a verdict of not guilty and record that.  If you are recording a verdict of the alternative verdict in relation to any of the accused persons, you note that on the issue paper.  You add in not guilty of murder but guilty of the alternative charge of section 7(2) if the Criminal Law Act 1993."

29.   The Director submits that the trial judge chose to comment on one aspect of the evidence against one accused rather than the other, and this, it is said, is unobjectionable. Moreover, that the trial judge validly exercised his discretion not to revisit this on foot of a requisition, finding that it would be prejudicial to Mr. Tynan if he were to do so.

30.   The respondent also submits that the trial judge made it abundantly clear that the trials of Mr. Tynan and Mr. Fitzgerald were separate and to be considered separately.

31.   The respondent places reliance upon the judgment of Geoghegan J. in People (DPP) v Bishop [2005] IECCA 2 for the proposition that the trial judge does not have to relate every aspect of a defence to a jury, or every argument put forward in the course of his charge.

Discussion

32.   The contention on the part of this appellant at trial was to the effect that he could be viewed as facilitating the purchase of the Peugeot and the purchase of the drugs involving the deceased.  In that respect, it was said that he had nothing to do with the murder, but could on the evidence be found to have been involved in the disposal of the vehicle in the aftermath and therefore a possible verdict lay in assisting an offender pursuant to s.7(2) of the 1997 Act.

33.   The complaint is made that the judge erred in failing to charge the jury on the possibility of the path to this alternative verdict as raised by counsel in his closing speech and refused to re-charge on this aspect following requisition. Moreover, that the judge in effect drew a distinction between the appellants in terms of directions on the possibility of alternative verdicts and did not guide the jury on the route to such a verdict in a similar manner vis-à-vis both appellants. This it is said compounded the prejudice to this appellant.

34.   When we scrutinise the transcript, excerpts from which are set out above, it is quite clear that the judge comprehensively instructed the jury regarding both appellants on the issue of verdicts open to them. He instructed them in careful terms on s.7(2) of the 1997 Act, pointing out repeatedly that this verdict was open on the evidence in respect of each appellant. In fact, it seems he did so on no less than four occasions. The fact that he did not set out the basis for such a verdict in the context of this appellant is entirely justified and in fact in ease of this appellant in that there was a considerable body of evidence against him, arguably more than that as against his co-accused. 

35.   We are not persuaded that any unfairness or error arises. The judge advised the jury repeatedly as to the verdicts open to them and accordingly, this ground fails.

Ground Common to both appellants: Accessory before the Fact 

36.   This ground is dealt with as ground 3 of Mr. Tynan's grounds as follows:-

"The Learned 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."

37.   This ground is dealt with as ground 7 of Mr. Fitzgerald's grounds as follows:-

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

Background

38.   During deliberations, the jury asked the following question:-

"If someone has prior knowledge that harm is going to be inflicted upon another person and the person dies as a result of that harm are they guilty of murder on accessory before the fact?"

39.   Counsel for both accused submitted that knowledge of serious harm was required, knowledge of harm alone being insufficient, and that a party to a joint venture must do something that contributes to the offence or counsels or encourages the commission of the offence, prior knowledge alone being insufficient.

40.   The trial judge answered the jury's question as follows:-

"Members of the jury, thank you very much for your question.  Now, your question specifically relates to knowledge or what we call mens rea of the offence but it also connects to another legal principle that I dealt with in my original charge to you which is joint enterprise and common design.  Now, the first issue in relation to knowledge, of course guilty knowledge is a prerequisite for the charge of murder and it's actually defined in legislation in section 4 of the Criminal Justice Act 1964 and it says:  "Where a person kills another unlawfully the killing shall not be murder unless the accused person intended to kill or cause serious injury to some person, whether the person actually killed or not."  And subsection 2 states:  "The accused person shall be presumed to have intended the natural and probable consequences of his conduct."

 

Now, the element then of joint enterprise or common design is that there has to be an act.  So, where two persons embark on a joint enterprise, the word embark being important ... "each is liable criminally for acts done in pursuance of the joint enterprise, including unusual consequences arising from the execution of the joint enterprise but if one of them goes beyond what has been tacitly agreed as part of the joint enterprise the other is not liable for the consequences of the unauthorised act."

 

So, if ‑‑ take an example away from this trial all together, if someone actually participates in some act, whatever it is, in your estimation as a jury generally which brings joint enterprise or common design into play, you combine that with the element of knowledge that they had before the act."

41.   Counsel for the appellants raised a requisition to revisit this direction in the following terms:-

"MR GUERIN: Can I just raise an issue, Judge. You said if someone actually participation [sic] in some act which brings joint enterprise or common design you combine that with the element of knowledge they had before the act.  I'm just concerned that if, just to take an analysis of the facts of the case, if for example the jury took the view, I'm not sure there's any evidence to support this but if they took the view that, for example, my client became aware that someone else intended harm to the late Mr Guerrine, but he didn't agree to involve himself in that enterprise until after it had occurred and only then became involved, in my respectful submission he wouldn't be guilty of murder and just the suggestion that you can combine knowledge beforehand with action subsequently, that is only, in my respectful submission, true if there was a commitment to participate in the enterprise, if there was agreement to become party to the joint enterprise and, in my respectful submission, in that respect the Court may have left open the possibility of an error of reasoning on the part of the jury.  In my respectful submission, the better way to phrase it would have been if someone participates in an act as part of the joint enterprise and in the knowledge of the purpose of the act then he is guilty of murder.  If, on the other hand, he only acts after the killing has taken place then he will only be guilty of murder if he had agreed beforehand to do that act for the purpose of the joint enterprise.

MR CLARKE: I support that submission, Judge."

42.   The trial judge refused to re-charge the jury stating:-

"I think I've dealt with this fairly.  I mean, when Mr Grehan opened his comments to the Court I took that on board.  When Mr Guerin addressed the Court about knowledge only the Court took that on board and therefore it combined the two together and I emphasised to the jury on the word embark and I think I've dealt with the question as fairly as I can without unduly complicating the issue before the jury because obviously none of us knows what facts they're going to decide beyond a reasonable doubt and I think, to the best of my ability, without unduly complicating the matter, I've answered the question as fairly as I can, having taken full submissions on the matter.  I'm not going to go back to them on the matter."

Submissions of the Appellants

43.   The appellants submit that the trial judge erred in law and misdirected the jury in refusing the appellants' joint requisition to revisit the answer provided by the trial judge to the jury's question.

44.   Counsel for Mr. Fitzgerald submits that this was a fundamental aspect of the case, and while the trial judge was correct to state that "guilty knowledge" was required, he should have also stated that there had to be evidence of a positive act by the appellant to involve himself in that enterprise before the killing in question. Counsel submits that there was no such evidence, or the jury should have been directed to consider whether there was such evidence.

45.   Counsel submits that actions after the murder could only be relevant if the appellant had formed an intention to kill or cause serious harm to the deceased beforehand, and therefore, "guilty knowledge" was insufficient, and the appellant had to be shown to be a part of the criminal enterprise prior to the murder. Counsel goes on to submit that the trial judge did not properly address the jury on this distinction. The submissions at trial and in this Court were adopted on behalf of Mr. Tynan.

46.   Counsel for Mr. Fitzgerald submitted at trial that the appropriate manner of direction by the trial judge should have been to instruct the jury that if a person participates in an act as part of a joint enterprise and in the knowledge of the purpose of the act, then he is guilty of murder. If he acts after the killing, then he is only guilty of murder if he had entered into an agreement beforehand to commit that act in furtherance of the enterprise.

Submissions of the Respondent

47.   The respondent submits that the answer given by the trial judge correctly informed the jury that an "act" was required in order for there to be a joint enterprise, and that the jury had to be satisfied of the mens rea behind that act before they could convict a person on the basis of joint enterprise. The respondent draws particular attention to the fact that the answer given referred to two people "embarking" on a joint enterprise.

48.   The respondent further submits that the trial judge canvassed the jury as to whether they wanted any clarification on the question they raised, and the foreperson replied "no".

Discussion

49.   Where two or more persons enter into an agreement, tacit or otherwise, to participate in a criminal act, each of the parties will be liable for the acts of the other which are committed in furtherance of that enterprise. Fundamental is the agreement to the enterprise, there must be evidence that the agreement between the parties extended to the actual offence, and such agreement of course may, as stated, be express or implied; said agreement can be inferred from the surrounding circumstances to the offence.

50.   In charging the jury, the judge referred to the prosecution case that there was a joint enterprise to murder Mr. Guerrine and then proceeded to state the legal principles, with which no issue is taken. However, the point is made that notwithstanding the accuracy of the initial direction, the jury posed a question which on its face suggested criminal liability based only on knowledge. Issue is taken with the direction given by the judge on foot of that question.

51.   It is clear from the question asked that the jury needed to be instructed that knowledge alone was insufficient for criminal liability. For a party to be held criminally liable, there must have been an agreement between the parties to take part in a joint enterprise and that each would be liable for acts committed in furtherance of that enterprise.

52.   In re-charging the jury, the trial judge pointed to the terms of s.4 of the Criminal Justice Act, 1964 and then proceeded to instruct the jury in the terms outlined above. He clearly stated that for a joint enterprise, there must be an act and that where two people embark upon a joint enterprise, each was liable for acts committed in furtherance of that enterprise, including unusual consequences. He then stated that if one of the parties went beyond what had been agreed as part of the enterprise, the other party could not be held liable for the consequences of that act.

53.   The concern voiced on behalf of the appellants was that the judge had suggested to the jury that the combination of knowledge beforehand and actions subsequent would only be sufficient if there was an agreement to a joint enterprise.

54.   Counsel's preferred choice of language was to indicate to the jury that if a person participates in an act as part of a joint enterprise, with knowledge of the purpose of the act, then it is murder, otherwise if the act takes place in the aftermath of the killing, then it is only murder if the person had agreed beforehand to do that act for the purpose of the enterprise.

Conclusion

55.   The jury in essence asked the question as to whether a person could be convicted of murder on the basis of accessory before the fact where the person had knowledge that harm was to be inflicted which resulted in death.

56.   The Director's case was that of joint enterprise and not that of secondary liability. Joint enterprise or common design is predicated upon an agreement between the parties. Counsel requested that the jury be instructed of the necessity for such an agreement. It seems to this Court that the direction given by the trial judge was very clear, he advised the jury again of the principles relating to a joint enterprise. The requisition following that direction concerned a re-phrasing of the instruction given which was to indicate that if a person does an act as part of the joint enterprise and in the knowledge of the purpose of that act, then it is murder. However, the direction given was an answer to the question asked, explaining the embarkation on a joint enterprise and liability for acts committed in pursuance thereof.

57.   In our view, it was readily apparent from the instruction given that the jury were required to consider whether there existed an agreement between the parties and if so, whether what actually occurred was within the terms of that agreement. We are not persuaded that the trial Judge erred in his directions on joint enterprise and accordingly these grounds fail.

Raymond Fitzgerald Ground 1: CCTV Footage

Background

58.   A voir dire ensued in relation to CCTV footage during the course of the trial, in which counsel on behalf of the appellant argued that the CCTV footage which captured the appellant, including CCTV footage relating to the Peugeot vehicle from Discount Fuels and ANPR evidence, should have been excluded.

59.   The objection to the admissibility of the CCTV footage raised by counsel related to the ease of accessibility to the Gardaí, without having to go through proper procedures required by European Law. It was submitted by counsel for the appellant that a balance had to be struck between the public interest in investigating crime and the private interest in data protection and protection of privacy. Counsel for the appellant contended that the Data Protection Act 1988 (hereinafter "the 1988 Act") does not contain the protections which are required by European law in relation to personal data, and the court should disapply the 1988 Act in light of the principles of supremacy and direct effect of EU law. The only way at trial to give effect to this proposition was to exclude the evidence.

60.   In essence it is argued that Directive 95/46/EC (hereinafter "the Data Protection Directive") requires specific conditions to be met in national law for the processing of data. S.8 of the 1988 Act does not provide for any conditions once the processing is conducted by the Gardai. This, it is argued, is an incorrect transposition of the Data Protection Directive and inconsistent with the requirement that the processing of personal data must be regulated in a particular way.

61.   Issue is also taken with the definition of personal data under the 1988 Act which is confined to data from which the person is identifiable from the data alone, whereas pursuant to the Directive, personal data includes that which permit of an identification to be made with other source material.

62.   Counsel for the appellant argued that the general CCTV footage and the ANPR was personal data in accordance with the definition under the Data Protection Directive and counsel for the respondent was only correct in that it wasn't personal data within the meaning of the Irish legislation, which counsel for the defendant argued should be disapplied as it gave less effective protection to data rights.

63.   In response, counsel for the respondent argued that none of the CCTV, with the exception of the Discount Fuels footage, was personal data.

64.   The respondent contends that the difficulty raised by the appellant concerns only the actual processing of the CCTV by the Gardai as part of the investigation. S.8 of the 1988 Act was in force at the relevant time and does not preclude processing such as that conducted in the present case. 

65.   It is argued that the majority of the footage showed the movements of the Peugeot vehicle, and did not capture the images of either appellant. The faces of the appellants were only captured by the footage from Discount Fuels which had a camera focused on the forecourt of the private property and not a public space.

66.   The respondent contends that the footage constitutes real evidence and that Art. 5 of the Data Protection Directive is of no consequence where the processing complained of is outside the scope of the Directive pursuant to Recital 16 which states:-

"Whereas the processing of sound and image data, such as in cases of video surveillance, does not come withing the scope of this Directive if it is carried out for the purposes of public security, defence, national security or in the course of State activities relating to the area of criminal law or of other activities which do not come within the scope of Community law;"

67.   Insofar as privacy rights are engaged, the Director relies on CRH v. CCPC [2018] 1 I.R. 521, IESC 34 and People (DPP) v Dunbar [2024] IECA 85.

68.   The trial judge held that the footage of the two accused men at Discount Fuels was personal data, but that there was no infringement of their personal rights in allowing the jury to view the footage, and accordingly he admitted the evidence. He applied the Charter and the Convention and ruled:-

"[T]he Court is of the view that because there's an application to exclude evidence the Court must consider this in the context of the standard exclusionary rules of evidence. Now, the Court has a wide discretion to exclude evidence. It's not just confined to the principles which are set out in JC which follow on from the constitutional decisions in O'Brien and Kenny and the controversy arising from that which related to very specific matters about knowing breach of constitutional rights or inadvertent breach of constitutional rights and breach of illegality, the Court has a general discretion in relation - both also in relation to fairness but it has to be exercised very carefully because the objection is not based on the probative value of the evidence. There's no issue about the probative value of the evidence that the prosecution wish to introduce.  They consider it relevant to the issues which they want to bring before the Jury. So, the exclusion, and Mr Guerin has demanded - he says that it can only be done in practical terms by excluding that evidence."

69.   He went on to say:-

"[C]ould there be a reasonable expectation of privacy, that them attending at a petrol station where a car has run out of petrol and they come on to the forecourt and buy petrol, could they conceivable think, forget about anything else, that they would have a reasonable expectation of privacy in relation to that particular footage?"

70.   He concluded:-

"I cannot see how any -- taking their rights to a fair trial, their presumption of innocence, taking the widest possible definition of their rights before the Court, I cannot see how they could have any reasonable expectation of privacy where their privacy rights would be interfered in any way with the jury seeing them drive into a petrol station and going in to pay for petrol and the number plate of the car they were driving. ... [T]he Court couldn't see or couldn't envisage any impingement on the rights of Mr Fitzgerald or Mr Tynan to the admission of the montage of CCTV evidence ..."

Submissions of the Appellant

71.   The appellant submits that the difference between the Irish definition of personal data and the EU definition, is that the Irish legislation confines the definition of personal data to data which permits of identification of a person by reference to other data in the possession of the data controller, whereas the definition under applicable European Union law, is not so constrained.

72.   The appellant submits that the broader definition in the Data Protection Directive is meant to enable greater protection in order to protect fundamental rights, and that this protection cannot be circumscribed because of any failure to adequately transcribe the provisions of the Directive.

73.   The appellant submits that the 1988 Act must be considered in light of Art. 5 of the Data Protection Directive, and that this requires that the Gardaí must show the processing is necessary for the task they are carrying out.

Submissions of the Respondent

74.   The respondent submits that the 1988 Act clearly does not preclude processing such as that carried out in this case, moreover, that CCTV has long been recognised as real evidence which is properly retained by An Garda Síochána as part of their investigations. The respondent places reliance upon Braddish v DPP [2001] 3 IR 127, IESC 45 and DPP v Scully [2005] 1 I.R. 252, [2003] IEHC 92.

75.   The respondent argues that the Data Protection Directive is aimed at the free movement of data within the EU, and not gathering evidence in criminal trials, noting that Recital 16 of the Directive specifically disapplies itself from the area of investigation of crime. The respondent submits that s.8 of the 1988 Act merely gives effect to Recital 16, and that Art. 5 is inconsequential as the processing complained of is explicitly placed outside the scope of the Directive by Recital 16.

76.   The respondent cites the comments of Charleton J in CRH v CCPC on the right to privacy as applied to criminal conduct, and on obiter dicta comments of O'Malley J in People (DPP) v Hannaway [2023] 2 IR 591, [2021] IESC 31.

77.   The respondent relies on Dunbar and notes that, in Dunbar, the CCTV did not involve the person who recorded the footage identifying the accused, which is similar to the instant case where the identification was by members of An Garda Síochána.

Discussion

78.   S.8 of the 1988 Act provides as follows:-

"Any restrictions in this Act on the [processing] of personal data do not apply if the [processing] is—

[...]

(b) required for the purpose of preventing, detecting or investigating offences, apprehending or prosecuting offenders or assessing or collecting any tax, duty or other moneys owed or payable to the State, a local authority or a health board, in any case in which the application of those restrictions would be likely to prejudice any of the matters aforesaid,

 

[...]"

 

79.   S.1 of 1988 Act provides the following definition of personal data:-

"'[P]ersonal data' means data relating to a living individual who can be identified either from the data or from the data in conjunction with other information in the possession of the data controller;"

80.   Art. 1 of the Data Protection Directive sets out the object of the Directive:-

"In accordance with this directive, Member States shall protect the fundamental rights and freedoms of natural persons, in particular the right to privacy with respect to the processing of personal data."

81.   Personal data is then defined in Art. 2(a):-

"'[P]ersonal data' shall mean any information relating to an identified or identifiable natural person ('data subject'); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity;"

82.   Art. 5 of the Data Protection Directive states:-

"Member States shall, within the limits of the provisions of this chapter, determine more precisely the conditions under which the processing of personal data is lawful."

83.   Recital 16 of the Data Protection Directive states:-

"Whereas the processing of sound and image data, such as in cases of video surveillance, does not come within the scope of this Directive if it is carried out for the purposes of public security, defence, national security or in the course of State activities relating to the area of criminal law or of other activities which do not come within the scope of Community law;"

84.   It is argued that the Data Protection Directive requires specific conditions to be met for the processing of data and that s.8 of the 1988 Act does not provide for any conditions when processing is conducted by the Gardai.  Secondly, an issue arises with the definition of personal data under the 1988 Act which, it is said is too limited.

85.   The argument is advanced that our law confines the definition to personal data so as to permit of identification by reference to other data in the possession of the data controller whereas the directive does not seem to include that qualification. It appears to provide that data is personal data if an identification is possible from other characteristics within the footage and from other information available.

86.   We commence by saying that the CCTV evidence in this case was relevant and probative evidence. It showed the movements of the Peugeot vehicle without identifying those within it. It also enabled the Director to combine that evidence with the cell data evidence. CCTV evidence is real evidence and its assistance in the investigation of criminal activity is significant.

87.   The contention of the appellant is as stated above, the 1988 Act does not properly transpose the Directive.

88.   Admissibility of CCTV has been rigorously challenged before our Courts. It is important to note that it is well settled that there cannot be, in our day of widespread CCTV cameras, any general expectation of privacy in public places.

89.   This of course is not unqualified in that there must be a reasonable expectation of privacy concerning private, sensitive or intimate conversations as stated in Dunbar, but persons present in a public place cannot have a realistic general expectation of privacy.

90.   The Directive is transposed into Irish law by virtue of the Data Protection Acts 2003-2018. The 1988 Act being the legislation at the relevant time. There is an obligation upon the Gardai to seek out and preserve evidence, which was emphasised by the Supreme Court in Braddish v DPP.

91.   It is clear from the decisions of the CJEU that issues of admissibility of evidence are entirely within the remit of national courts.

92.   The appellant contends that the 1988 Act does not comply with the Directive and that the only remedy was to exclude the evidence. This evidence was undoubtedly relevant and probative. S.8 of the 1988 Act, which has the presumption of constitutionality, stated that any restrictions on disclosure of personal data does not apply if the data is required for the purpose of inter alia investigating, apprehending or prosecuting offenders. The suggestion made was that this section should be in some way disapplied as it is too broad and fails to give effect to the Directive in that the processing of the data requires more detailed regulation.

93.   It should be noted that the Directive concerns the free movement of data within the EU and does not address or concern the admissibility of potentially illegally obtained evidence. Again, issues of admissibility are within the remit of national courts subject to the principles of equivalence and effectiveness. In any event, Recital 16 specifically excludes video surveillance if such is carried out in the course of State activities relating to criminal Law. 

94.   Therefore, the 1988 Act curtails the rights of data subjects where the data involves the investigation of criminal activity, such as in the present case. The footage which was gathered was, in all but one instance, footage of public areas, specifically capturing the movements of the Peugeot vehicle and without any identification of individuals. The footage from Discount Fuels was on the foreground of private property and disclosed the faces of the two persons, however, in our view the gathering and retention and processing of all the footage was, in the circumstances of the investigation into the brutal killing of a man, entirely proportionate.

95.   The issue of the appellant's constitutional right to privacy is separate from that of breaches of the data protection regime, as this Court had observed in People (DPP) v Thompson [2024] IECA 22 and People (DPP) v Harrington [2024] IECA 153. 

96.   We do not see any breach of the appellants' right to privacy. Since Dunbar, it is recognised that persons in public places, driving on public roads or, as in this case entering onto a forecourt to obtain petrol, do not have a reasonable expectation that their movements will not be recorded on CCTV footage. This is particularly where a camera is gathering non targeted, random information about individuals or vehicles in any particular location.

97.   We do not find merit in the contention that the 1988 Act did not properly or adequately transpose the Directive. It is clear that the processing of data in this context is excluded from the scope of the Directive in any event.

98.   Similar to the situation in Dunbar, the evidence here was highly relevant, it had the potential to (and indeed did) advance the investigation, identify suspects and provide relevant admissible evidence. This category of real evidence can also serve to assist an individual where unfounded allegations are made. If the gardai did not seek and retain the evidence, there is no doubt but that complaint could and would be made as to the failings in the investigation.

99.   Accordingly, this ground fails.

Raymond Fitzgerald Ground 2: Automatic Number Plate Recognition

Background

100.   The appellant sought to exclude ANPR evidence on the basis that the machine generated data was not proved in terms of accuracy or reliability. The system does not produce a photograph of the number plate, but processes the image and then produces a text file recording the registration number.

101.   The ANPR evidence captured the Peugeot on three occasions on the 23rd May 2015 at certain locations. The vehicle was identified on the system covering the N7 and the junction of the N81 and N82 at Citywest and Blessington Road at 02:30 and at 03:59 and at Castlewarden at 05:07. The latter ANPR camera is located approximately a 10 minute drive from Discount Fuels where the vehicle was captured on CCTV cameras at 05:19.

102.   Mr. John Kavanagh, a traffic management controller for South Dublin County Council, gave evidence in the course of the voir dire, where he stated that the local authority has 82 recording devices which capture licence plate data and send them, in the form of a text file, to a central server, which stores the data for 14 days, for the purposes of traffic management. He gave evidence that the vehicle in question was identified on the system at 02:30 and 03:59 on the morning of the 23rd May covering the N7 and the junction of the N81 and N82 at Citywest and Blessington Road and finally at Castlewarden at 05:07 heading out of town.

103.   Mr. Kavanagh stated in evidence, "[n]o photographic evidence or verification of the data that's collected. All we simply receive on the main server is a text file."

104.   The appellant argued the court couldn't be satisfied that the device was working properly and capable of making an accurate recording of the plates, on the basis of Mr. Kavanagh's evidence, elicited during cross examination, that he could not verify or "stand over" the outputs of the ANPR system:-

"There are a number of difficulties for the prosecution in that respect; the first is that Mr Kavanagh said that he doesn't know how the machinery works, he repeatedly said that he doesn't know how it works and when a whole variety of questions were put to him about how it works he said you'd have to ask the manufacturer. He just doesn't know. Secondly, he's not in a position to confirm that it was working properly at the time. Thirdly, he doesn't know how reliable the system is. Fourthly, and this is in fact of enormous importance, the system is deployed and used for purposes for which it does not need to be reliable and he was very clear about that. He said the way their system operates is it picks up duplicates and he expressly said, we don't have the benefit of transcript and I don't have an exact note of what he said, the Court will have this, you can see it, he effectively said that it doesn't matter to them whether it gets it right or not, what matters is that they pick up a duplicate. So, in other words, as long as the same error is being made within all the cameras, and presumably they're all more or less the same camera and he gave some evidence about that, he said some of them are later iterations but they're essentially all from the same manufacturer as I understand it, as long as the same error is being made along the way then duplicates will be picked up in any event and that serves their purpose."

105.   The respondent replied by submitting that:-

"What is required is to show that there is an automated system in work, at work that produces particular results and that's what Mr Kavanagh has said here, notwithstanding that he cannot give chapter and verse into how precisely it actually works or how, to put it as Mr Guerin has, the computer converts images into, in effect, what are alpha digital information and nor can he say how accurate that is, nor can he even say that the clock on it is accurate, though it seems to be implicit in having such a system that the times would have to be accurate if you're trying to calculate journey times.  But what he can say is that this machine, or this system does produce the results that enable them to carry out their work, which is to calculate travel times because, as he has put it and it is a criticism of it, it's interested, the system, in recording a number and seeing then if the same number is recorded further on down the line and that's the basis on which it then is able to produce a result. But it isn't entirely devoid of, I suppose, demonstrating its own accuracy in that that very fact, in itself, the fact that the same number shows up on a number of occasions indicates that cameras are able to read that particular number, the fact that it can calculate them between certain places means that they will know whether the system is working accurately or not because if it says that a car is on the N 7 at a particular point in time and it says that the same car number is, we'll say, outside Bray at the same time or within a short time later then it cannot be working correctly, but there's no such evidence of that. His evidence is that this worked for its purpose."

106.   The trial judge ruled as follows:-

"Now, just in relation to the issue of the ability of the jury to consider other evidence to support its reliability, that in my view is the position. In any particular thread of evidence in a circumstantial evidence case, a jury is quite entitled to rely on other evidence to establish beyond reasonable doubt the factual situation in relation to that and I'm of the view that in relation to this that it -- there has been a satisfactory explanation of the general working of the system. I accept that from the evidence of Mr Kavanagh that the issues which have been raised are ones which are real ones and therefore the evidence has certainly a degree of weakness, but it does not stand on its own as evidence and I'm of the view that it can be, as to reliability, bolstered by other evidence and the jury are entitled to rely on that. So, I don't accept the submission in relation to the thread of evidence, specifically the issue of the ANPR evidence standing alone and must stand alone and be considered by the jury alone. In my view, it's a matter of weight and reliability to be considered by the jury rather than an issue of admissibility and that the jury will be properly directed in relation to what evidence is available to support it and for that reason I'm admitting the evidence."

Submissions of the Appellant

107.   The appellant submits that the judge erred in admitting evidence of the ANPR system and the evidence of the vehicle registration plates. This left the jury with a misleading impression of the reliability of evidence, when the authenticity and reliability of the information elicited from the system was not established.

108.   The appellant places reliance upon the judgement of the Supreme Court in People (DPP) v AMcD [2016] 3 IR 123, [2016] IESC 71. The appellant distinguished the facts in that case on the basis that there was a Garda present at the scene who could authenticate the CCTV material, but that such authentication of the evidence of Mr. Kavanagh had not existed in this case.

109.   The appellant submits that while the trial judge identified a "degree of weakness in the evidence" he erred in law in assessing the issue to be one of weight to be attached to the evidence, relying on DPP v AMcD in submitting that the issue is one of admissibility. The appellant submits that the this is a "critical fault-line" in the trial judge's ruling, and that the admissibility of this evidence is not saved by reference to other evidence in the trial. The appellant submits that the provenance of the ANPR evidence had to be established to the requisite standard before it was admitted.

110.   The appellant also seeks to distinguish the case of DPP v Marcus [2015] IECA 228, relied upon by the prosecution during the voir dire on the basis that case related to the provenance of CCTV footage, whereas this case related to a system which was designed for a different purpose to the one for which it was being used here (it was designed for traffic management), and because Mr. Kavanagh was not in a position to confirm whether the system was working properly.

111.   The appellant also cites the case of DPP v Andrej Gruchacz [2020] 2 IR 213, [2019] IESC 45, where the Supreme Court considered the DPP v AMcD case, and agreed that CCTV was real evidence available for consideration by the jury. The appellant submits that in instant case, the jury were not at any stage given guidance by the trial judge as to the defects in the system.

112.   The appellant submits that the evidence at issue is not "intelligible and of sufficient quality" within the meaning of DPP v AMcD, as there are simply too many errors in the system.

Submissions of the Respondent

113.   The respondent notes that evidence was adduced of two witnesses who were driving on the roads that evening and whose cars were recorded on the ANPR system, Mr. Marcyn Barchan and Garda Declan Brady.

114.   The respondent also places reliance on DPP v AMcD, arguing that the verification of the CCTV footage by a Garda in that case is analogous to the evidence of other road users captured on the ANPR on the same night. The respondent states that the trial judge correctly relied on this to authenticate the ANPR system for the purposes of admissibility, and any question of weight was a matter for the jury.

115.   The respondent draws attention to the trial judge's summary of the evidence of Mr. Kavanagh, in recalling his evidence in respect of the ANPR system the judge stated as follows:-

"Now, John Kavanagh from the south County Council gave evidence about the ANPR system and he said that:  'South Dublin County Council has an ANPR system as part of its journey time management.  It's automatic number plate recognition.  Throughout the county, the local authority has 82 ANPR devices on the orbital and arterial routes.  As vehicles pass these devices it captures the number plate and then it sends that information back to a central server, the idea then being we try to match one against the other and to generate journey times.  It's a journey time management tool for traffic management.  If X amount of vehicles pass a certain camera and then Y amount of vehicles pass another camera the system looks to match what is captured and it generates a journey time from it.  There's no photographic evidence of anything, it's purely a text file from the device.  It's an automatic system and there's no verification on the system.  It's fully automatic.  It runs 24/7.  It's loaded on to a text file and then transmitted to a central server from the device.'

 

And again, he was asked did the gardaí come and look for stuff and they said yes, for Castlewarden on the N 7 from 12 midnight until 4 am on the 23rd of May and he said that the CCTV is at a point known as Colemanstown Lane on the N 7 and that is an ANPR device.  On the three lanes in bound and out bound on the carriage way there's an overhead gantry and the devices are actually mounted on the gantry.  They're pointing at the carriage way and they capture information from a number plate and transmit it back to the Council and the data is kept for 14 days and then it's deleted.

 

He said that he got another request on the 28th of May just to deal specifically with motor car registration number 04 D 53432 and he said that the three recordings of that particular vehicle and that they provided that information to an gardaí.  It's for registration 04 D 53432.  The designation on the first one is OOT, that's out of town.  L 1 refers to lane one.  The time at which the device is captured is 23rd of May 2015 at 19 minutes and 29 seconds past midnight and there's even a fraction of the second, .467 and the last indicator, 85, is a confidence level that the camera placed against it.

 

The next line then, there's another recording of 04 D 53432 and that's at the N 81/N 82 Citywest junction going east bound.  Asked what the direction of travel is east bound and that's on the 23rd of May 2015 at 12 midnight 57 am, that's three minutes to 1 am and 17 seconds with 00 seconds and 80 applied with the confidence level and just the designation is castle and then there's another one, Castlewarden out of town, lane 1, 23rd of May 2015, 5.07 am and second seconds was a fraction of .607 and the confidence level was 83 and lane one is nearest to the hard shoulder.  And then he agreed that:  'Just in summary what the data indicates is that a particular car registration 04 D 53432 was captured heading out of town at the Castlewarden location you've just indicated to us at Rathcoole at 19 minutes past midnight, that it was captured heading into town east bound on the N 81/N 82 Citywest junction at 00.57, three minutes before 1 am on the 23rd; is that correct?  Answer:  'Yes, indeed.  And then it was captured going out bound again at 7 minutes past 5 on the same date, 23rd of May 2015, again at the Castlewarden site and you've pointed that out to us.'  Then just in relation to the N 81/N 82, he said that it's east bound towards Tallaght that it takes on the Blessington Road.

Now, he then brought to Mr Kavanagh's attention two other numbers.  He says, and this is in relation to another vehicle:  'And lane 1 is again the lane nearest to the road side.  Right, all right, thank you very much.  If I could bring you on then please to page 40 of your read out and the jury heard evidence earlier from a Marcyn Barchan who's a Polish man who was driving a BMW 520 that night out of town with a registration number of 08 WW which is Wicklow 4689.  Can you see the registration number on the page?  Yes.  It's the 23rd of May 2015, 2.33 am and 8 seconds to 147 of a second, Castlewarden out of town lane 1 with a confidence level of 83 and the registration is indicated 08 WW 4689.'

And then he was asked to look at a second extract and he said:  'I think it was up to 4 am in the morning that the initial request from the garda covered and the jury heard evidence earlier from a Garda Declan Brady that at approximately 4 am he was driving the patrol car 14 D ‑‑ 142 D 1017 and went to the location at Steelstown Lane to attend the scene of this particular incident and that he drove out bound to the N 7 motor way to get there.  Can you just read the information the fourth line from the bottom please?'  And he says:  'It's 23rd of May 2015, 3.59 am and 35 seconds of .676 Castlewarden out of town lane 1 confidence applied of 80.  It's a reading 42 D 10179 and west bound on lane 1 on the N 7 at location 20 which is Castlewarden.'  Asked then about the dropping of the 1 he said:  'There's a known issue with the device where they don't capture anything past 131 registrations.  They only capture two digits either 31 or 13.  There's a technical reason for it but it will have to be referred to the manufacturer, I'm not au fait with the actual mechanics on it.'"

116.   The respondent also draws attention to the judge's charge to the jury on the ANPR evidence, where he stated that the accuracy of the ANPR system was for the jury to find:-

"Now, the prosecution are seeking to draw a number of inferences for to you make beyond a reasonable doubt, that is a matter entirely for you, members of the jury, your exclusive function.  The inferences that they seek to draw is that the vehicle seen in the CCTV from 11.51 pm to 12.57 am and from 5.12 am to 5.16 am at Topaz Blessington Road was the black Peugeot 307, 04 D 53432; that the automatic number plate recognition exhibit 12 is accurate and that its accuracy is supported by the evidence of Marcyn Barchan driving 08 WW 4089 on the N 7 outward and Garda Declan Daly being the observer in vehicle 142 D 10179 on the N 7 outward and that the Topaz CCTV footage at 12.57 am on the 23rd supports the contention that the automatic number plate recognition evidence at exhibit 12 on the junction of N 81 and N 82 on the Blessington Road going east is accurate."

Discussion

117.   The fundamental point raised by the appellant is that the system, to operate correctly, does not require accuracy; working properly is not coterminous with working accurately and so it is said that the evidence gathered therefrom should have been excluded.

118.   The impugned evidence must be relevant and of probative value and there can be no doubt but that this evidence had those characteristics. In addition, the evidence must be proved appropriately and to the requisite standard. That is concerning the dual issues of authenticity and provenance. The argument is advanced that the recording cannot be relied upon; that there was no proof the system was operating properly but more fundamentally that the material therefrom was unintelligible, and of insufficient quality to be received in evidence.

119.   The evidence in this instance was generated by automatic means, without human intervention. It is real evidence and admissible once authenticity and provenance has been proven. The evidence was generated through an algorithmic conversion by a machine and the only real question which is posed by the appellant is whether such evidence was of a sufficient quality to be admissible.

120.   The appellant draws a distinction between CCTV footage and this evidence in that the former can be assessed by the jury using their own eyes whereas this is a different process and a jury cannot make that assessment as to quality. It is argued that the evidence is in the form of typed numbers on a spreadsheet which for all intents and purposes appears to be in order and reliable, but in fact this is only an impression and there was no evidence as to it's reliability — quite the contrary on the appellant's contention.

121.   In our view the quality of evidence relates to what the image is and what the image purports to show. It is clear that the machinery was operating and that there was evidence called of two witnesses who were using the roads on the relevant date; that is Mr. Barchan and Garda Brady. Both of those vehicles were identified by virtue of the text files generated by the system.

122.   Moreover, it is relevant that the Peugeot vehicle was recorded at the Castlewarden ANPR camera at 05:07 in circumstances where the vehicle was captured on CCTV footage twelve minutes later at Discount Fuels. The drive from Castlewarden to Discount Fuels takes approximately ten minutes.

123.   Therefore, there was evidence by which the reliable operation of the system could be gauged by the jury.

124.   The jury heard Mr. Kavanagh's evidence and were aware of the nature of the evidence, being a text file generated from the operation of the system, that there was no human intervention and that it was automatic in nature. Mr. Kavanagh gave evidence that the system was maintained, that he was asked by the Gardai to access the system, and that he did so and provided the records to the Gardai. Therefore, there was evidence to establish its authenticity and provenance.

125.   It is true to say that this type of evidence differs to CCTV footage for obvious reasons, but the fact that it is a text file does not detract from the quality of the evidence. It seems that 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. This was all explained by the witness. There was therefore evidence that the quality threshold had been passed. In those circumstances, we cannot find the judge erred in admitting the evidence.

126.   The reliability of the evidence could be assessed by virtue of the evidence adduced from the two witnesses who passed the cameras on the relevant date. The jury were also entitled to consider the CCTV evidence from Discount Fuels in conjunction with this evidence to determine the reliability of the evidence. 

127.   We are not persuaded that this ground is made out and so we reject it.

Raymond Fitzgerald Ground 4: Voluntary Statement

Background

128.   An application to exclude the voluntary statement of the appellant was made during the course of the trial and refused by the trial judge.

129.   Detective Sergeant Ronan McDermott gave evidence that on the 5th of June 2015, information was received suggesting that a male with the surname of Fitzgerald in the area was involved in the murder. On foot of this information, he attended the appellant's home with a colleague, and spoke to him, while his colleague spoke to the appellant's brother. The appellant's home had already been searched a week earlier at this point. Detective Sergeant Ronan McDermott stated that the appellant gave a voluntary statement in the hallway of his house, taken solely in the presence of Detective Sergeant Ronan McDermott, who said the appellant agreed it was correct and signed it. The appellant was not cautioned or advised that he could obtain legal advice. Detective Sergeant Ronan McDermott stated that he did not believe it was necessary to do so prior to taking a statement.

130.   Counsel for the defendant argued at trial:-

"Mr Fitzgerald's home had already been searched a few days ago, the reference to the phone being taken. It is equally clear that he is someone who if he wasn't a suspect he was extremely close to it. The law doesn't recognise the notion of a person of interest, as such. It's -- to some extent the law doesn't even recognise the concept of a suspect, except insofar as there must be reasonable suspicion to found a lawful arrest and therefore the person arrested is deemed, I suppose, by definition to be a suspect because that reasonable suspicion must exist but that doesn't mean that the suspicion can't exist before arrest and, in this case, it's my submission to the Court that what in fact is meant by the phrase person of interest is suspect not yet arrested and any other meaning of the phrase person of interest in my respectful submission would be to torture language. Now, he was one of two suspects based on confidential information identifying a young male Fitzgerald from Knockmore, which would be narrowed down to two people, his brother David and himself. It is perfectly clear in the same way that the Court saw, request after request made by Garda for information which might implicate or exonerate a person when looking for telephone records, that the whole purpose and only purpose of getting this information was either to implicate or exonerate Mr Fitzgerald. Now, of course, it might have advanced the garda investigation and that's what Garda McDermott has said and they'd have had to look at the information and look at all of the other information coming in in the investigation, but it doesn't change the fact that he was one of two people who had been -- who formed a very narrow, very small category of suspects in the sense that they matched the description contained in the confidential information and there's a reason why very specific questions were being asked about whether he was in the vehicle 04 D 53432, because that was obviously suspected of involvement in the murder, to account for his movements on the 22nd or 23rd of May, whether he knows Mr Tynan, the other person, the other suspect mentioned in the confidential information or Mr Guerrine, the victim, and his last contact with them. Those are all very focused questions on matters that are core to the investigation. I say that Mr Fitzgerald should have been told two things, he should have been cautioned in the usual way and he should have been told of his right to legal advice....I say, Mr Fitzgerald should have been cautioned and told of his right to legal advice, because on the evidence the Court can't be satisfied that the decision not to do those things was not one taken at a high level and in a deliberate and thoughtful way and for the purpose of avoiding putting him on notice of the risk of self incrimination and then finally because, as I say, the statement itself is actually of minimal, if any, probative value, in my respectful submission the Court should not allow the statement in evidence."

131.   In reply, the respondent relied on People (DPP) v Joseph O'Reilly [2009] IECCA 18, with the respondent submitting the case was factually analogous, where the Court of Criminal Appeal held the statement was admissible.

132.   The trial judge ruled as follows:-

"Now, just again to deal with it, I don't think Mr Guerin is on strong grounds at all in relation to access to a solicitor at that point in time. I don't think there can be any right where a person, either a suspect or a potential suspect is approached to make a voluntary written statement, that it can be said that at that point in time they have the right to legal advice not in accordance with our constitutional law or the law that applies at the moment. So, the focus of the Court is was there a fundamental unfairness to Mr Fitzgerald in the particular circumstances of the approach on the date in question and I'm of the view that there wasn't. The position is that certainly Mr Fitzgerald, in fairness to the defence submission, was coming within that close proximity to potential suspect or suspect but generally speaking it would be far too far to go that the gardaí could not go to people in that particular vicinity to seek witness statements to deal with how they were, either can be eliminated or investigated further in relation to crime, that there would have to be a caution in all particular circumstances and in the particular discretion of this case Sergeant Ronan McDermott was entitled to exercise his particular discretion in not giving a caution and I would, in my discretion, admit the statement."

Submissions of the Appellant

133.   The appellant submits that the trial judge erred in ruling against the appellant at trial. The appellant relies on the case of People (DPP) v Gormley and White [2014] 2 IR 591. The appellant argues that the primary consideration is the privilege against self-incrimination, which was emphasised by the reasoning of the Supreme Court in that case, and which means the appellant was entitled to be warned of possible consequences of making a statement.

134.   The appellant also submits that the decision in O'Reilly is limited insofar as it did not address the issue, specifically it is said that privilege against self-incrimination applied in the situation where the appellant was a suspect at the time when the statement was taken.

135.   The appellant submits that the "discretion" exercised by Detective Sergeant McDermott identified by the trial judge cannot apply to the constitutionally protected privilege against self-incrimination. The appellant emphasises that the appellant's status as a suspect entitled him to a caution and opportunity to obtain legal advice.

Submissions of the Respondent

136.   The respondent notes that the voluntary statement in question was in essence exculpatory. It was relied on as corroboration of his guilt based on three lies he told to Detective Sergeant McDermott on that occasion. The respondent seeks to distinguish between privilege against self-incrimination, and a "privilege against telling lies to law enforcement", the latter of which the respondent submits does not exist.

137.   The respondent states that the appellant's submissions in respect of Gormley and White ignore that that case related to suspects in Garda custody.

138.   The respondent relies upon O'Reilly, where the accused made a voluntary exculpatory statement when not in custody prior to a decision to charge him, and the Court of Criminal Appeal held that an unfairness in the taking of a statement could warrant excluding the evidence, but no such unfairness was in fact present.

Discussion

139.   The appellant contends that he was entitled to be warned of the possible consequences of making a statement where he was a person of interest to the Gardai. In essence, it is argued that the appellant was a suspect at the time the Garda spoke to him and that he ought to have been afforded certain protections including a caution and the opportunity to take legal advice. Reliance is placed on the decision in Gormley and White in this respect.

140.   It must be observed that the appellant's statement is exculpatory in nature. The reason for the respondent relying on this statement was to demonstrate that the appellant had lied on three occasions which the respondent sought to rely upon as corroborative of guilt.

141.   It is quite clear that the appellant was not under arrest, was not in the custody of the gardai, was not detained and no decision had been made to charge him. The gardai were clearly proceeding with the investigation into the murder. The fact that the appellant was questioned regarding the offence does not mean that the protections applicable to those arrested and detained applied to him. He was in his own home and could have requested the Gardai to leave, instead he proceeded to provide an exculpatory statement which the prosecution were entitled to rely upon to demonstrate that lies were told, said lies being of evidential value.

142.   Rule 1 of the Judge's rules specifically permits questioning of an individual, whether a suspect or not, to discover the perpetrator and there is no requirement to caution him or to give him the opportunity to take legal advice in those circumstance.

143.   The dicta in Gormley and White specifically refers to situations where an individual's status is altered and the person is subject to the coercive powers of the State. Therefore, there is a departure from the purely investigative stage. This was not the position in the present case.

144.   We are 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. Although we say here that even it were inculpatory, we do not see that our view would differ. No unfairness arises and accordingly, this ground fails.

Raymond Fitzgerald Ground 5: Application for a Direction

Background

145.   An application was made to withdraw the offence of murder from the jury with reliance on the first limb in R v Galbraith [1981] EWCA Crim J0519-1; that is that there was no evidence on which a jury properly charged could convict Mr. Fitzgerald of the offence of murder.

146.   The offence was alleged to have occurred on or between the 22nd and the 23rd May 2015, both dates inclusive. For the purposes of this application and taking the prosecution case as required, at its height, the following matters were accepted:-

(1)     The Peugeot vehicle drove into Knockmore at approximately 23:51 on the 22nd May 2015.

(2)     The vehicle was seen on CCTV footage leaving there at 00:08 on the 23rd May 2015.

(3)     The phone attributable to this appellant permitted a jury to be satisfied to the requisite standard that he was in that vehicle when it made its journey from Knockmore to Steelstown.

(4)     Mr. Fitzgerald was in the vehicle at 05:19 on the 23rd May 2015 at Discount Fuels.

(5)     Mr. Fitzgerald lived in Knockmore.

147.   Counsel submitted at trial that the respondent could not exclude the possibility that the deceased was murdered on the 22nd May 2015, in essence prior to the vehicle arriving to the appellant's estate circa 23:51 on that date. It was argued that the evidence taken at its height permitted of that conclusion and that there was no evidence to establish that this appellant was present for the murder, nor was there any evidence to show that he did anything which contributed to the commission of the offence or, in effect, was in any way part of a joint enterprise to murder the deceased.

148.   In arguing for the contrary proposition, the Director contended that the prosecution did not know precisely when the deceased was killed but that the timeline was very tight and consequently, the only reasonable inference was that this appellant was acting in concert with Mr. Tynan in the murder. It was said that the evidence of Mr. Forte and Mr. Brady, (the taxi driver who dropped Mr. Forte and the deceased to the aforementioned park), if accepted by the jury, showed that Mr. Forte and the deceased arrived at the park in Knockmore, that they were there for some time, that the deceased was in telephone contact with Mr. Tynan to arrange a meeting and that simultaneously Mr. Tynan was in telephone contact with this appellant.

149.   Whilst it was said by the respondent that the possibility of the deceased being already dead at this point could not be discounted, there was a connection established between the appellants. The respondent also placed reliance on a telephone call at 00:18 on the 23rd May 2015 from the deceased's phone to Mr. Forte where the cell site analysis evidence showed that this phone had contact with a mast near Steelstown Lane enabling the inference to be drawn that the phone was with the deceased at that time. It was the respondent's submission that the body was then deposited at the location in Steelstown, but that the inference was open that he was alive at the time of the phone call, which we understand was unanswered. The Director was very clear that she could not say where or when precisely the deceased met his death. However, there was very little blood at the scene where the body was found which rendered it unlikely that the deceased was killed there.

150.   The respondent accepted that it opened the case without knowing when the deceased was murdered precisely, but that the timeline was so tight that the evidence was not open to any interpretation other than that the appellant was involved in the murder.

151.   The trial judge ruled as follows:-

"Now, therefore what we have as a situation is that there's strong evidence against Mr Fitzgerald from 12.08 am on the morning of the 23rd of May 2015 but the evidence before that is weak and obviously the Court would have a concern about that. Now, does that mean that the Court has to withdraw the case from the jury in relation to Mr Fitzgerald before that? And the answer to that is simply no and is there an injustice to Mr Fitzgerald in the Court, in its charge to the jury, having to make clear that Mr Fitzgerald is entitled to the benefit of the doubt and a verdict of not guilty if they come to the conclusion that Mr Guerrine was killed before 12.08 am? In my view it's not an injustice. The Galbraith and the M case make clear it's a properly charged jury and the expectation is that the jury follow the judge's instructions and that they are quite capable of making decisions that there are divergent evidence in relation to each accused.

So, the conclusion of the Court very simply is that the Court -- the case can go to the jury, specifically on the basis that it's open to the jury to conclude that Mr Guerrine was killed in the car on the way to Steelstown Lane or just before he was put out of the car and that the jury can conclude without speculation or guessing that Mr Fitzgerald was in that car as it drove out of Knockmore Gardens and it can be left to the jury on that basis and the Court has to be careful in its charge to the jury to make quite clear that if they're not satisfied that Mr Guerrine was killed subsequent to 12.08, they must render Mr Fitzgerald not guilty of the charge."

Submissions of the Appellant

152.   The appellant submits that the trial judge erred in applying the relevant principles concerning the application for a direction. The respondent argues that the possibility existed that the deceased had been murdered on the night of the 22nd May before midnight, and the trial judge acknowledged a "concern" about this fact, but stated he could address this by charging the jury on the "benefit of the doubt principles". The appellant submits that this was incorrect.

153.   The appellant submits that, given the possibility existed of the deceased having been murdered before midnight, there had to be at least some evidence against the appellant in the period before that time about actual participation in the enterprise, in order to enable a jury to convict. The appellant submits that instruction by the trial judge as to the "benefit of the doubt" principle could not address this adequately.

154.   The appellant further submits that the as the prosecution went on, they became every more closely tied to the proposition that the deceased was dead prior to midnight.

Submissions of the Respondent

155.   The respondent submits that there was  "an abundance of evidence" which warranted the case going to the jury.

156.   The respondent further submits that withdrawing the case from the jury would have usurped their role, and the trial judge was correct in refusing the application and making the following comments in relation to phone calls made by Mr. Guerrine's mobile phone:-

"So, the logical, really, interpretation of that from the Court's perspective that the jury would be quite entitled to take the view and based on firm evidence, in other words not guessing or speculating, drawing an inference from facts which they can decide beyond a reasonable doubt, that Mr Guerrine was still alive at 18 minutes past midnight and so that he was killed subsequent or very shortly subsequent to that"

Discussion

157.   There can be no doubt but that the trial judge considered this application and the evidence relevant thereto with conspicuous care. We too have considered the evidence and the trial judge's ruling on the issue and are not persuaded that the judge erred in refusing the application.

158.   We find the time of the call from the deceased's phone at 00:18 on the 23rd May 2015 and the approximate location from where that call was made to be of significance. The cell site analysis evidence disclosed that the deceased's mobile phone was communicating with the mast located at an area known as Gargan's Farm, Rathcreedon, which was consistent with a journey on the N7. That call went directly to the voicemail on Mr. Forte's device. Two unanswered calls were made earlier from the deceased's phone to Mr. Forte's phone at 23:58 and 00:01 respectively. The locations of those calls were placed at Jobstown petrol station and the ESB Whitestown site respectively. It is important to place those three calls in context; and that is against the background that there was CCTV evidence of the Peugeot vehicle entering the Knockmore estate where Mr. Fitzgerald lives at 23:51 and leaving at 00:08. There was evidence enabling the jury to infer that Mr. Fitzgerald was in the Peugeot vehicle from approximately 00:08 and on the call data evidence to infer that on the 23rd May 2015, he made the journey from his estate to the Steelstown Lane area in that vehicle. He is also seen on CCTV footage at Discount Fuels in the early hours attempting to wipe the exterior of the vehicle.

159.   Commencing with the deceased's trip on the Luas with Mr. Forte on the 22nd May 2015; the deceased answered a call made to his phone at approximately 23:11/23:12; that call came from Mr. Tynan's phone. At 23:22, CCTV evidence showed the deceased and Mr. Forte at the Luas stop and moving towards the Square in Tallaght.

160.   Mr. Brady, the taxi driver, gave evidence of collecting the two men at approximately 23:30 and driving them to the pedestrian entrance between Killinarden estate and Knockmore estate. He said that the deceased was on his phone during that journey and the telephone evidence confirmed that calls were made from the deceased's phone to Mr. Tynan's phone around this time. There was also mobile phone evidence that Mr. Tynan's phone was in contact with Mr. Fitzgerald's phone at this time.

161.   The deceased walked towards Killinarden Park while Mr. Forte and Mr. Brady waited for approximately 20 minutes in the taxi. This, in our view, is significant evidence when assessing the evidence of the call from the deceased's phone at 00:18; the reasons being that the deceased had been in the company of Mr. Forte, had travelled to the location in question with him and Mr. Forte had waited in the taxi at that location. The inference which may be drawn from that is that Mr. Forte was waiting for the deceased's return. The deceased had his phone with him when he left the taxi, and it seems that a logical inference on the evidence is that the deceased made the three calls including that at 00:18 to Mr. Forte, the man whom he was with earlier, who had dropped him at the relevant location and had waited there with the taxi driver.

162.   There was evidence enabling the jury to conclude that Mr. Fitzgerald was in the Peugeot as it drove from his estate at 00:08, that vehicle is seen driving into Knockmore Gardens at 23:51 and leaving at 00:08. The vehicle is then captured on CCTV near Steelstown Lane, the area where the body was found, at 00:24 - 00:35.

163.   The point is made on the behalf of the appellant that the respondent in closing suggested that the deceased was perhaps killed after 12:18 and that was as much as could be said. However, the position remained at the directions stage and indeed on the conclusion of the evidence that the jury could have accepted the version which favoured the respondent, i.e. that the deceased was murdered after midnight and excluded the other contention beyond reasonable doubt.

164.    The respondent also relied upon the lies told by the appellant to the gardai and while the appellant contends that those lies are consistent with disposing of the body, and an attempt to conceal that wrongdoing, that evidence is relevant in terms of the entirety of the evidence in determining whether the judge erred in refusing the application for a direction.

165.   There was evidence before the jury from which they could infer that Mr. Fitzgerald was in the vehicle from 00:08 on the 23rd May 2015 and evidence from which they could infer that the deceased was alive at that time. The telephone evidence, the evidence of the locations from which calls were made from the deceased's phone, the timing of those calls, and in particular, the person to whom those calls were made. The entire body of evidence justified the trial judge determining that this was not a case to withdraw the murder charge from the jury. The fact that the prosecution could not pinpoint the time of death is not at all unusual and the idea that someone else may have used the deceased's phone may have merited fleeting consideration, but there was undoubtedly cogent evidence before the jury to be satisfied beyond reasonable doubt that the deceased was alive at the time Mr. Fitzgerald was in the Peugeot vehicle.

166.   Applying the well-known principles regarding withdrawing a case from the jury, we are not persuaded that the trial judge erred in refusing the application for a direction and so we reject this ground of appeal.

Ground 6: Vagueness of Indictment and Charge

Background

167.   Counsel for the appellant raised an issue in requestion following the trial judge's charge:-

"Then just in relation to what the Court said about the drafting of the indictment, I'm conscious obviously it is an issue that there were submissions on beforehand but I would ask the Court to tell the jury or to remind the jury of the reason given by the prosecution in opening the case for the drafting of the indictment in the way it was by reference to the dates. Obviously, in light of the specific legal issue that has arisen in my respectful submission, given that that was the way in which the case was opened and that explanation was offered, that the jury should be reminded that although there may well be -- it may well be good practice for the prosecution to draft an indictment widely. I mean, I should say, I take issue respectfully with the suggestion the prosecution have a duty to draft the indictment as wide as possible, in my respectful submission that isn't so. They have a duty to draft the indictment accurately and, in fact, with sufficient clarity that a person will know exactly what it is their charged with doing and when they did it and that that, in fact, is the duty on the prosecution but as a matter of practice they can draft it more widely where issues of doubt arise and that this is a case in which the prosecution very clearly stated that there was an open question in relation to the time of or the date of the murder and I'd ask the Court to tell the jury that."

168.   The respondent replied as follows:-

"The next matter raised by Mr Guerin in relation to the indictment, in my submission the Court shouldn't go back on that matter at all. It is very much a standard thing that persons who are murdered or alleged to have been murdered, that the prosecution lay the indictment on the basis of when they were last seen until they were found because that is the absolute outside parameters of matters, even though evidence may ultimately be led which suggests perhaps a narrower window."

169.   The trial judge did not revisit this issue with the jury.

Submissions of the Appellant

170.   The appellant submits that the trial judge erred in law and/or in fact in failing to address this issue in his ruling and in failing to address it with the jury. The appellant submits that the lack of specificity in the indictment was a matter of live and real consequence in the appellant's case, and that any ambiguity or doubt on the clarity of the charge meant issues of doubt arose, which might impact on the jury's deliberations concerning the time of death and any participatory acts carried out by the appellant in relation to those matters.

Submissions of the Respondent

171.   The respondent submits that the indictment was drafted to cover the last time at which Mr. Guerrine was seen, shortly before midnight on the 22nd May 2015.

172.   The respondent also submits that the trial judge adequately addressed the issue in the requisition, directing the jury to acquit Mr. Fitzgerald if they felt there was a reasonable possibility that Mr. Guerrine was murdered shortly after arriving at the lane but prior to getting into the relevant car.

Discussion and Conclusion

173.   This ground may be addressed succinctly. The particulars of the offence in an indictment should be stated in ordinary language stating: the date or dates of alleged commission of the offence, the location if known (although it is entirely possible to place the location as "within the State"), and the nature of the alleged acts. Clarity is important but, in general, the date and location do not have to be specified with absolute precision. It is well known that indictments may be drafted as being on a date unknown between certain dates. The indictment in this case was drafted to take account of the last time the deceased was seen alive until the time his body was located. The fact that the time of death may have reduced in accordance with the evidence did not render the indictment in any way defective. The appellant knew the case he had to meet with sufficient specificity.

174.   The trial judge had already adverted to the possible time of involvement by Mr. Fitzgerald in his charge and specifically when he stated:-

"If you decide there is a reasonable possibility that Mr Guerrine was murdered at the general location he arrived at initially before he was in the vehicle or put into the vehicle you must bring in a verdict of not guilty to murder against Mr Fitzgerald and consider the alternative verdict which I will explain to you."

175.   Therefore, 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, then the alternative verdict under s.7(2) of the 1997 Act was one which they needed to consider.

176.   We do not find merit in this ground and accordingly we reject it.

Conclusion

177.   As we have not found favour with any of the grounds of appeal, the appeal against conviction is dismissed.


Result:     Dismiss

About BAILII - FAQ - Copyright Policy - Disclaimers - Privacy Policy amended on 25/11/2010