The Court of Appeal dismissed Marcus Kirwan’s appeal against his conviction for the murder of David Byrne. The unanimous jury convicted Kirwan on 4 February 2013. The appeal court’s judgment, delivered by Mr Justice Birmingham on 27 October 2015, rejected each ground argued and did not disturb the conviction.
The prosecution case at trial was that Byrne was lured to a meeting at the John Bosco Centre in Drimnagh and chased by Kirwan and others into the car park of Emmett Court Apartments, Inchicore, where he was stabbed to death on 19 March 2011. The judgment records that CCTV did not capture the stabbing itself. The prosecution relied on footage from several locations, phone contact between numbers it linked to Kirwan and Byrne, and an identification by Garda Culhane.
Kirwan challenged his re-arrest on 21 April 2011 under a warrant issued pursuant to section 10 of the Criminal Justice Act 1984. He argued that the warrant authorised Detective Superintendent Gabriel O’Gara personally, rather than Sergeant Michael McNulty, to arrest him. The appeal court held that section 194 of the Criminal Justice Act 2006 permitted the procedure used. It also said that, even if authority were doubtful, the officers had followed a longstanding practice and had not deliberately violated Kirwan’s constitutional rights. The court therefore rejected the challenge to evidence obtained during detention, including an identification parade at which Sonia Byrne identified him.
The court also rejected objections to Garda Culhane’s identification of Kirwan in CCTV footage. It said the footage showed people at or near the crime scene, giving the identification significant probative value. Although contemporaneous records of the viewing should have been kept, the defence knew Culhane had made the identification after watching the footage several times and could rely on that in challenging his evidence.
The appeal court further held that CCTV footage was real evidence and ordinarily required no explanation of how a camera operated. It also upheld the admission of XRY analysis of two phones. The defence had questioned the software’s operation, discrepancies with a manual examination and the link between Kirwan and one phone. The court found no requirement to call a software engineer, and said the evidence of phone contact formed part of the circumstantial case.
The appeal grounds concerning telephone records were not argued. The court dismissed the appeal, leaving the conviction in place.