Monday 23 September 2019

Dublin man jailed for gangland murder loses appeal against his conviction

The Criminal Courts of Justice in Dublin
The Criminal Courts of Justice in Dublin

Ruaidhrí Giblin

A Dublin man who became the third person jailed for life for the same gangland murder has lost an appeal against his conviction.

Gary Flynn, (32) of Rossfield Drive in Tallaght had pleaded not guilty at the Central Criminal Court to the murder of Seamus Shay O'Byrne at the victim's home in Tallaght on March 13, 2009.

After a nine-week trial, it took the jury just one hour and forty minutes to convict Mr Flynn of murder and he was accordingly given the mandatory life sentence by Mr Justice Patrick McCarthy on March 16, 2016.

Garrett O'Brien (34) of Cloverhill in Bray, had been convicted in November 2012 for the shooting and Eugene Cullen was convicted in March 2014 for his role in organising the murder. The prosecution's case was that Flynn, Eugene Cullen and others had assisted in the preparation, execution and aftermath of the murder while O'Brien was the gunman. Cullen has since died in custody.

Giving her evidence at the start of the trial, Sharon Rattigan described how a gunman - Garrett O'Brien - appeared outside their home as she and Seamus were preparing to drive to her mother's house. The gunman opened fire, shooting Mr O'Byrne four times before Sharon tackled him. O'Brien fired again, hitting Sharon in the leg, but she fought on and both of them toppled over a garden wall. Mr O'Brien fled, but not before Ms Rattigan had taken his gun, and his mobile phone and a can of Red Bull had spilled from his pocket.

The phone was later used to finger O'Brien as the shooter and to link other members of the gang to the murder plot.

Flynn had his conviction upheld today with the Court of Appeal holding that his trial was satisfactory in all respects.

Giving judgment in the three-judge court, Mr Justice George Birmingham said the case against Flynn was broadly based on circumstantial evidence and, as is usual in such cases, the prosecution contended that the various pieces of evidence linking Flynn to the murder were more than mere coincidences and as such were highly significant.

There was evidence Flynn was with Cullen before the murder, evidence that he was communicating with Cullen by phone since the early hours of the morning of the murder and evidence that he was in the company of Cullen and others after the murder.

In Flynn's trial, It was not disputed that there was sufficient evidence to establish the participation of Cullen and Garrett O'Brien in the murder, the judge said.

Mr Justice Birmingham said the defence “challenged the admissibility of just about every element of the prosecution case,” which went a long way to explaining why the trial took 34 days.

He said Flynn contested the lawfulness of searches and seizures of phones in houses where he did not live and the admissibility of evidence gleaned from phones that were not his. He challenged the lawfullness of the seizure of a stolen Transit van and the admissibility of the evidence located within it.

Mr Justice Birmingham said the Court of Appeal did not believe Flynn had standing to challenge evidence by reference to the constitutional rights of others. His privacy rights were not in issue. He was not entitled to raise issues in relation to the lawfullness of the search and seizure of phones in houses where he did not dwell and he had no privacy rights associated with information stored on phones that were not his.

Turning to the trial judge's charge to the jury, Mr Justice Birmingham said that, if read as a whole, it was careful, comprehensive and balanced.

Mr Justice Birmingham, who sat with Mr Justice Alan Mahon and Mr Justice John Hedigan, said the court was satisfied that Flynn's trial was satisfactory in all respects, that the verdict was proper and safe and that the appeal should be dismissed.

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