Dublin man loses appeal over sentence for violent attack in bookmakers
A man jailed for his role in a violent bookmakers attack has lost an appeal against his conviction on the principal ground of his identification from CCTV footage.
Tynan was found guilty by a jury and sentenced to four years imprisonment with the final year suspended by Judge Patricia Ryan on January 13, 2017.
Dublin Circuit Criminal Court heard that Tynan was one of three men who burst into the bookmakers on the day in question and set upon a customer standing in the middle of the shop.
One of the attackers had a short blade and began stabbing the man repeatedly. When the victim's brother tried to intervene, the group of men then turned on him.
One worker told gardaí that she continued to serve customers while this was going on.
Tynan lost an appeal against his conviction today brought principally on the issue of recognition evidence by a garda who viewed CCTV footage of the incident and purported to recognise Tynan.
Dismissing his appeal today, Mr Justice George Birmingham said Garda Sergeant Ciarán Loughrey was quickly on the scene and he encountered a person with obvious stab wounds. That person was removed to Tallaght Hospital.
Neither this person nor his brother were willing to cooperate with the investigation and there was never any medical reports obtained, nor a victim impact report produced.
Sergeant Loughrey arranged to take possession of CCTV footage of the incident, contacting Ladbrokes HQ in the UK for this purpose.
He arranged for the footage to be viewed by a Garda from Kevin Street Station in Dublin. Garda Patrick McAvinue purported to recognise Tynan and the two other men who were shown entering the premises.
This identification was "absolutely central" to the prosecution case, Mr Justice Birmingham said.
Tynan's lawyers, Michael O'Higgins SC and Eoghan Cole BL, submitted that the admissibility of such evidence should be governed by an assessment of whether the process by which the evidence had been garnered was adequate to ensure its probative value is not diminished or outweighed by the prejudicial effect. It must ensure the defence had an adequate opportunity to test the identification evidence, Tynan's lawyers submitted.
Mr O'Higgins said the circumstances under which video identification is made are vital and it was "very unfair" on Tynan that no record was kept of what happened.
There was no log, no history of how the tape was played and no record of what the surrounding circumstances were. The failure to do that lead to an unfairness on Tynan and ought to have excluded the testimony, Mr O'Higgins submitted.
Counsel said there could have been clear and cogent steps taken to test, for example, whether the viewing was alone or with others, was it part of a mass circulation, the time it was viewed, how the viewing was controlled, whether the person viewing it was familiar with the location, what features of the image triggered the recognition and were there any expressions of doubt.
Mr Justice Birmingham said the challenge amounted to a criticism of the failure to take contemporaneous notes on the occasion Sergeant Loughrey visited Kevin Street.
There was no statutory obligation to take contemporaneous notes and the Court of Appeal did not feel there was any obligation on the trial judge to exclude the evidence due to the absence of notes.
What occured in this case differed from what is usually at issue in cases involving visual identification or voice identification, Mr Justice Birmingham said.
What ordinarily happens is that a witness, at a time after a crime is committed, is asked to view an identification parade with a view to seeing whether they can pick out someone and say they are viewing the same person they saw commit the crime.
Here, what happened was “quite different”. There was footage actually showing the crime being committed. It showed those involved present at the crime scene and the person viewing the footage was doing so to see could he identify anyone on screen as someone previously known to him.
It was a fundamental difference, Mr Justice Birmingham said.
That high quality images are often now available, as opposed to blurred or grainy images which were the norm until recent years, should not be lost sight of and meant that earlier cases “require to be treated with a degree of caution”.
Mr Justice Birmingham, who sat with Mr Justice Alan Mahon and Mr Justice John Hedigan, said the court was not persuaded by any argument in relation to the recognition issue.
Turning to other grounds, he said it was somewhat artificial to attempt to separate footage from the stills given that the Garda had access to both and the stills were all taken from the footage.
The question that remained for consideration by the jury was whether they were satisfied beyond a reasonable doubt of the reliability of Garda McAvinue's identification. The majority verdict of the jury was that they were so satisfied.
In relation to Pulse records, Mr Justice Birmingham noted the assurance of prosecution counsel to the trial judge that he reviewed the material and satisfied himself that there was nothing that would assist the defence.
If the defence was not happy with what was being stated, then the appropriate course would have been to request the trial judge to review the entries. There was no such request and the trial judge was correct to rule in the way she did, Mr Justice Birmingham said.