MURDER CONVICTION APPEAL DISMISSED

BRAY MAN GARRETT O’BRIEN KILLED FATHER-OF-TWO IN TALLAGHT IN 2009

REQUIRING a jury in a criminal trial to explain or give reasons for its verdict was ‘impractical’ and a ‘recipe for enormous difficulty’, according to the Court of Appeal in upholding a murderer’s conviction.

Garrett O’Brien (40), from Clover Hill in Bray, Co Wicklow, had pleaded not guilty to the murder of 27-year-old fatherof-two Seamus O’Byrne at his home in Tymon North Park, Tallaght in March 2009.

He was found guilty by a jury at the Central Criminal Court and was given the mandatory life sentence by Ms Justice Iseult O’Malley on November 6, 2012.

The three-judge Court of Appeal dismissed O’Brien’s conviction appeal yesterday(Tuesday) in which his lawyers had argued that their client’s fair trial rights were breached because the jury did not provide an explanation for its verdict.

Giving judgment, Mr Justice Alan Mahon said the deceased and his partner Sharon Rattigan were in the process of leaving their home with their young child in Tallaght when a man wearing a hooded tracksuit top walked up to him and shot him four times, killing him.

Ms Rattigan then ran towards the gunman in an attempt to intervene. As she did so, the gunman shot her in the leg. Nevertheless, Ms Rattigan continued to tackle him and managed to take the gun off him.

They tumbled over the wall into an adjoining garden and, in the course of the struggle, the gunman’s hood was dislodged making his face visible to Ms Rattigan.

She let go of him because her child was screaming and the gunman ran off leaving behind his gun, a Red Bull can and a mobile phone. A Volkswagan Passat found near to the scene the following day had in it a live round of ammunition and a petrol can.

Evidence connecting O’Brien with the crime included the red bull can and mobile phone. The phone was his and it had his DNA on it. He maintained he had lost his phone, or it was stolen from him, prior to the shooting.

It was further alleged that O’Brien returned in a Nissan Micra car at about midnight that night to retrieve his mobile phone or to dispose of the car. He was seen on CCTV at the Grosvenor petrol station in Rathmines around midnight with his hair shaved and in different clothes.

It was O’Brien’s case that another named individual (Gary Flynn) was the killer and he had no involvement in the crime nor had any knowledge of it.

O’Brien’s barrister, Feargal P Kavanagh SC, said the prosecution ‘rode two horses’ by opening their case on the basis that it was a ‘joint enterprise’ but ending up on the basis that O’Brien was the ‘ triggerman’.

If the jury had a reasonable doubt that O’Brien may not have been the gunman, and the prosecution’s case was that he was the gunman, then he should have been entitled to an acquittal, counsel submitted.

The problem was that O’Brien did not know at this juncture whether he had been convicted of being a gunman or a ‘gopher’ as part of a joint enterprise. That had consequences for him in the future such as when he goes before the parole board, counsel said.

Mr Kavanagh, who appeared with Michelle O’Sullivan BL, submitted that it was an inherent weakness in the procedure and O’Brien’s ‘fair trial rights’ were breached.

Mr Justice Mahon said it was ‘entirely novel’ to suggest that a jury could be questioned as to how, or the reasons why, it reached its verdict.

It had never been the practice in Ireland that a jury be asked for an explanation of their verdict other than simply stating guilty or not guilty, Mr Justice Mahon said.

No request was made on O’Brien’s behalf, prior to the jury retiring to consider its verdict, to request a ‘specific verdict’, nor was the matter the subject of any requisition.

Mr Justice Mahon said O’Brien was charged with and tried for specific offences and clear verdicts were returned in respect of each. He had also been found guilty of possessing a firearm with intent to endanger life on the same occasion.

‘A requirement that a jury should, in effect, give reasons for, or explain its verdict is impractical and a recipe for enormous difficulty,’ Mr Justice Mahon said.

‘ The secrecy of the manner in which a jury conducts its deliberations has long been a hallmark of our criminal legal system’.

As there was no basis to support the argument that the jury ought to have been asked for a detailed explanation as to the breakdown of its verdict, any such lack of detail could not undermine the verdict, Mr Justice Mahon, who sat with Mr Justice George Birmingham and Mr Justice John Edwards said in dismissing the appeal.

Dismissing all other grounds, Mr Justice Mahon said the court was satisfied O’Brien was lawfully arrested and there was no de-facto arrest or detention beforehand. Furthermore, the property was in fact his sister’s and he did not ordinarily reside there.

Mr Justice Mahon said the trial judge had made it abundantly clear that O’Brien, according to the prosecution, was the gunman who killed the deceased but that he wasn’t acting alone.

In all the circumstances, there was little more the trial judge could have said. If there could have been any criticism of the trial judges charge – and the Court of Appeal did not believe there could have been – it was that the judge’s charge unduly favoured the defence.

Finally, the trial judge was entitled to rule that a senior consultant engineer for Villacom, with whom O2 Telefonica Ireland had a service agreement, was properly authorised to assemble and disclose certain mobile phone data, Mr Justice Mahon said.