Wednesday 12 December 2018

Man (37) who pleaded guilty to possessing firearm has sentencing adjourned

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Alison O'Riordan

The sentencing of a Dublin man who pleaded guilty to possession of a firearm with intent to commit an indictable offence has been adjourned until next week in order for the defence to indicate if they want a Newton hearing, the Special Criminal Court has heard.

A Newton hearing is a special hearing used in circumstances where there has been a plea but certain relevant facts are disputed and it’s left to a judge to decide who’s telling the truth.

Eamon McNamee (37), with an address at Larkfield Square, Lucan, County Dublin pleaded guilty last month at the three-judge court to possession of a firearm with the intent to commit an indictable offence, namely assault causing harm, at Fairgreen, Saggart, Co Dublin on January 19, 2013.

At today’s sentence hearing Detective Sergeant Padraig Boyce, of the Special Detective Unit, summarised the facts of the case.

It is the prosecution’s case that McNamee shot and wounded a man called Declan Smith in Saggart, west Dublin on January 19, 2013.

Det Sgt Boyce told prosecuting counsel Anne-Marie Lawlor SC that after receiving confidential information that there was to be unlawful IRA activity and movement around Dublin on January 18, an operation was undertaken by the Special Detective Unit.

The witness said McNamee was observed by the National Surveillance Unit driving a particular vehicle in convoy with members of the IRA travelling around Dublin on January 18.

Mr Smith was taken to Ballymana Lane, Kiltipper in Co Dublin later that day to be interrogated concerning allegations of criminality. Parties including McNamee stayed at Ballymana Lane for two hours, the court heard. Det Sgt Boyce said this operation concerned the restructuring of the IRA in Dublin following the death of a senior IRA commander and an investigation was being carried out.

Following this, Det Sgt Boyce said, they travelled to Fairgreen, Saggart, Co Dublin where Mr Smith was shot.

“Mr Smith was wearing a white boiler suit and his hands were tied with cables. He was brought to a pedestrian entrance, onto the footpath and shot at a particular residence,” said Det Sgt Boyce.

A neighbour, who was a paramedic by trade attended to Mr Smith and observed that he had been shot in the left leg. “He described it as a knee cap,” said Det Sgt Boyce.

A cartridge was recovered at the scene which became relevant for firearms residue, the detective told the court.

Ms Lawlor said Mr Smith was not willing to assist in the investigation at the time and has since died, in an unrelated event. Mr Smith was brought to Tallaght hospital and a bullet was recovered from him as well as the boiler suit which he had been wearing.

Det Sgt Boyce agreed with counsel that a number of cars, including McNamee’s car, were seen leaving the scene. He was later arrested in Lucan.

McNamee was interviewed by gardai on a number of occasions where he remained silent and declined to offer an account of events.

The court heard that a number of residue samples were taken from McNamee's hands and face including from the forearms of his clothing. He later refused to give an account of how the residue got there.

The prosecution are relying on an analysis given by a ballistics expert, Dr Thomas Hannigan, who compared the gunshot residue found on McNamee's face and hands with Mr Smith’s boiler suit. He said they were all similar samples.

The court heard there was “strong support” in Dr Hannigan’s statement for the suggestion that it was McNamee who shot Mr Smith rather than any other individual. Ms Lawlor said that the prosecution case is that McNamee was "the shooter" rather than merely being present at the scene and another party having shot Mr Smith.

The barrister said Dr Hannigan looked at two alternative scenarios, the first that McNamee shot Mr Smith or secondly that someone else shot Mr Smith. The court heard that Mr Hannigan’s expectation of finding residue on McNamee was “very high” while the second scenario was “extremely low”.

The court heard McNamee has three previous convictions. In 2009 at Trim Circuit Criminal Court he was jailed for five years for the sale and supply of drugs. The other two convictions relate to road traffic matters for which he received a fine.

Det Sgt Boyce agreed with Michael Bowman SC, for McNamee, that his client had a historical involvement in the IRA for a short period of time but he had not come to the attention of the Special Detective Unit since 2013. The witness agreed with the fact that McNamee had never breached his bail and he had never been difficult to deal with.

Under cross-examination, Mr Bowman said to Det Sgt Boyce that it had been suggested to the court that McNamee pulled the trigger and the neighbour had observed two gentlemen with Mr Smith but he could not see their faces.

At this point, Ms Lawlor stood up and told the court that if an alternative argument was being put to the witness, that it was not McNamee who pulled the trigger, then there should be a Newton hearing.

Mr Bowman said there was a minimum of two people down the lane when Mr Smith was shot and a reference to four people thereafter. The barrister said he took issue that Dr Hannigan’s report was open to one interpretation only. “There is evidence placing two people in the lane and Dr Hannigan is acting in ignorance of this event,” he said. He called Dr Hannigan’s report "incomplete".

Ms Lawlor said there had to be a Newton hearing in the event where she says McNamee pulled the trigger and Mr Bowman says the opposite.

Ms Justice Isobel Kennedy, presiding, sitting with Judge Gerard Griffin and Judge Gerard Haughton, adjourned matters until next week in order for the defence to indicate if they wanted a Newton hearing as a dispute had arose between the prosecution and defence on the facts of the case.

McNamee was remanded on continuing bail until February 5.

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