Raider part of gang that stole ATM machine from Irish petrol station using a JCB
A raider jailed for his role in the theft of an ATM machine from a petrol station, using a JCB, has lost an appeal against his conviction.
Thomas Berry (43), with an address in Bunclody, Co Wexford, had pleaded not guilty to theft and linked offences at a Maxol service station on the Bellefield Road, Enniscorthy on July 24, 2009.
He was found guilty by a jury at Wexford Circuit Criminal Court and sentenced to five years imprisonment with the final three months suspended by Judge Barry Hickson on November 11, 2015.
Berry lost an appeal against his conviction today, with the three-judge Court of Appeal dismissing his appeal on all grounds.
Giving judgment, Mr Justice George Birmingham said the prosecution contended that the raid was carried out by a group of five men, one of them being Berry.
Construction work was underway at the Maxol service station and there was a JCB digger on site.
One of the gang got into the JCB, hotwired it and drove it at the ATM. He did this several times in order to dislodge it from the wall and then, with the assistance of other gang members, succeeded in pushing the ATM into the bucket of the JCB.
It was then manouevered by the JCB onto the stolen trailer and the gang proceeded to make good their escape.
The ATM was owned by Ulster Bank and computerised records indicated that a sum of €205,100 had been in the ATM when it was removed, Mr Justice Birmingham said.
Dismissing the appeal on all grounds, Mr Justice Birmingham said the trial judge's decision not to transfer the case out of Wexford was fully open to him.
He said the trial judge was correct to rule as admissible, the identification of Berry from CCTV footage as the purchaser of jeans at a Carlow store on July 24, 2009.
The real issue at trial was whether Berry could be proved to be one of the raiders, the judge said. Desmond Kavanagh, who was one of the gang members, was a "key witness" and his evidence was "absolutely crucial" to the prosecution's case.
The defence contended that Mr Kavanagh was an utterly unreliable witness to the extent that it was unsafe to allow the jury consider his evidence.
In the early stages of his evidence, Mr Kavanagh explained that he had pleaded guilty to the theft of the ATM and had received a sentence of four years imprisonment with the final three months suspended.
While Mr Kavanagh had a "chequered past", and the fact that he had previously given apparently credible and detailed accounts of the raid without referring to any involvement on the part of Thomas Berry, his evidence at trial "remained constant and was not shaken in any way when he assigned a role to Thomas Berry," Mr Justice Birmingham said.
He said there was a considerable amount of material for Berry's barrister to work with when cross examining Mr Kavanagh and this provided the basis for the application to direct an acquittal.
He said it was for the jury to consider the credibility of Mr Kavanagh - that also disposed of the suggestion that the jury verdict was perverse.
Mr Justice Birmingham, who sat with Mr Justice Alan Mahon and Mr Justice John Edwards, said the court had decided to reject all grounds of appeal so "must dismiss the appeal and affirm the conviction".