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Lawyers for murderer claim “fair trial rights were breached”

Seamus O'Byrne
Seamus O'Byrne

Lawyers for a man jailed for life for murder have argued that his fair trial rights were breached because his jury did not specify whether he was convicted of being the gunman or a “gopher” in a joint enterprise.

Garrett O'Brien (39), from Clover Hill in Bray, Co Wicklow, had pleaded not guilty to the murder of 27-year-old father-of-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.

O'Brien moved to appeal his conviction today in the three-judge Court of Appeal where judgment was reserved.

His barrister, Feargal P Kavanagh SC, said the case was based on “circumstantial evidence”.

He said the prosecution opened their case on the basis that it was a “joint enterprise” but ended up on the basis that O'Brien was the “triggerman”.

The prosecution was effectively riding two horses, Mr Kavanagh said.

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.

Given that the prosecution were “riding two horses”, Mr Kavanagh said the jury should have been told by the trial judge to consider the case on a joint enterprise basis if they had a reasonable doubt that he was the gunman.

Mr Kavanagh further submitted that the trial judge erred in ruling that it was not necessary for the arresting garda to invoke search warrant provisions and that personal data was unlawfully obtained from a third party subcontractor rather than directly from the service provider, O2 Telefonica.

Counsel for the Director of Public Prosecutions, Alex Owens SC, said the trial judge's direction to the jury was “impeccable”.

Mr Owens said all the evidence pointed to O'Brien being the gunman and his participation in the offence did not start there. 

He said O'Brien was ultimately involved in the preparation of the offence and he was the gunman. 

If one was to go down the route of requiring juries to be more specific, Mr Owens said “you might as well get rid of juries altogether” because they would be required to give written decisions. That was "not the way it works,” he said.

Mr Justice George Birmingham, who sat with Mr Justice Alan Mahon and Mr Justice John Edwards, said the court would reserve its decision.