The Court of Criminal Appeal has quashed the affray convictions of Owen Reid and Christopher Kirwan, after treating their applications for leave to appeal as the appeals themselves. It declined to order a retrial and directed that each applicant’s fine be repaid.
The court said there had been too little evidence to leave the affray charge against Reid to the jury. As to Kirwan, it found that a jury direction on how to handle competing views of the evidence misstated the law, making his conviction unsafe or unsatisfactory.
The two men had been jointly tried in the Dublin Circuit Criminal Court between 28 March and 3 April 2001. They were each charged with affray under the Criminal Justice (Public Order) Act 1994 and separately charged with assaulting a peace officer. Both were acquitted of assault.
The offences were alleged to have occurred on 13 December 1999 at Georges Place, Dublin 1, beside St George’s Church, then being used as the Tivoli Theatre. The judgment recounted Garda evidence that disorder broke out near the building. Garda Adrian Murray identified Reid as one of a crowd of 12 directing anger at officers, but the Court of Criminal Appeal said there was no evidence placing him among people who had fought one another, and no evidence that he personally used or threatened unlawful violence towards anyone other than Gardaí. It concluded there was no prima facie case of affray against Reid and that the count should have been withdrawn from the jury.
The court reached a different view on the evidence against Kirwan. Garda Mark Benson had said Kirwan was involved in fighting with two to four people. Though the jury acquitted Kirwan of assault, the court said the alleged affray and assault occurred at different times and were distinct events. It held that the acquittal did not prevent a conviction for affray on that evidence.
However, the trial judge told the jury to favour the accused when “two views are equal”. The appeal court said the correct test was whether two views were possible or open on the evidence; they did not need to be equally probable. It said the direction introduced an error that could confuse the jury and concluded Kirwan’s conviction was not safe or satisfactory.
The court said it was deciding each appeal on the narrowest point necessary. It did not determine broader arguments about duplicity or the reach of the statutory offence. Given the time elapsed and the non-custodial sentences, it said a retrial was not appropriate.