Sunday 17 February 2019

Man who spent 11 months in jail for violent attack has conviction quashed after another man 'came forward'

The 28-year old had always maintained his innocence in relation to alleged violent disorder in Tallaght bookmakers

Decaln Tynan. Picture: Sunday World
Decaln Tynan. Picture: Sunday World

Ruaidhri Giblin

A Dublin man who spent 11 months in jail for his role in a violent bookmakers attack has had his conviction quashed after another man allegedly “came forward”.

Declan Tynan (28), of Vincent Street Flats, Dublin 8, had always maintained his innocence in relation to alleged violent disorder at Ladbrokes bookmakers in Killinarden, Tallaght on December 13, 2012.

The prosecution's case was 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 turned on him. 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.

One worker told gardaí that she continued to serve customers while the incident unfolded.

Two of the attackers had pleaded guilty by the time Tynan faced trial at Dublin Circuit Criminal Court. 

In what was described by Tynan’s barrister, Eoghan Cole BL, as a “one witness case” in which the only evidence against his client was the purported visual identification of him by a garda from the bookie’s CCTV, a jury found Tynan guilty and he was sentenced to four years imprisonment with the final year suspended by Judge Patricia Ryan on January 13, 2017.

Tynan then sought to appeal his conviction focusing on the “perils of visual identification”. However, the three-judge court dismissed his appeal and affirmed his conviction.

A number of months later, Tynan’s senior counsel, Michael O’Higgins, told the Court of Appeal that someone else had "come forward” in relation to the attack.

This person, a Mr Luke Hickey, had provided a statement claiming he was the third person involved in the attack, Mr O’Higgins said.

Tynan was granted bail pending an investigation. The court heard that the matter was referred to experts in the UK who looked at the question of visual identification.

The case returned to the Court of Appeal yesterday where Tynan’s conviction was quashed under Section 2 of the Criminal Procedure Act 1993.

The Director of Public Prosecutions did not oppose the application, brought by Tynan’s lawyers. However, Michael Delaney SC, for the DPP, said the Director was not making any concessions on a factual basis.

Mr Justice George Birmingham, who sat with Mr Justice Alan Mahon and Mr Justice John Hedigan, ordered that Tynan’s conviction be quashed with liberty to apply later for a declaration that the conviction was a miscarriage of justice.

In his unsuccessful appeal against conviction, Mr O’Higgins said a garda from Kevin Street station had been asked to look at the CCTV footage of the bookmakers attack. “Of all the guards, in all the stations,” Mr O'Higgins said, the path to Kevin Street was never explained.

A few weeks later the Garda made a statement to say he was 100% sure it was Tynan.

Mr O'Higgins said the circumstances in 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.

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 O'Higgins said a police officer asked to view CCTV is not the same as a witness to a crime. The mischief is that the police officer may merely make an assertion without an objective means of testing the accuracy. It was dangerous territory, he said.

He 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.

Dismissing the appeal, Mr Justice Birmingham said the court was not persuaded by any argument in relation to the recognition issue.

What occurred 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 if he could 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”.

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