The Court of Criminal Appeal has quashed Keith O’Donovan’s convictions arising from an armed robbery at Farran Post Office and ordered a retrial, finding that the trial judge’s directions to the jury on identification were defective.
The court heard that two armed robbers stole £8,000 from the proprietor’s son, threatening him with a firearm, before escaping in a stolen car. O’Donovan was convicted on 13 May 2002 of robbery, possession of an unauthorised firearm and allowing himself to be carried in a vehicle without the owner’s consent or other lawful authority. He applied for leave to appeal those convictions.
Identification was central to the prosecution case. Two gardaí said they identified O’Donovan and another man about 4½ miles from the post office, across a valley and from more than 300 metres away, using binoculars. The sighting was at or shortly after 9.30am on a wet, drizzly morning. The Director of Public Prosecutions accepted on appeal that the case could not succeed without the identification evidence.
The trial judge read the jury a warning from the earlier Casey decision. But the appeal court said the warning could not be discharged simply by reading that passage: it needed to address the possibility of mistake in the particular case and the circumstances affecting observation. Although the weather and distance were mentioned elsewhere in the charge, the court said they were not connected to the identification warning.
The court also criticised the judge’s description of the gardaí as “trained observers”. It found there was no evidence supporting that statement or the proposition that Garda training made their identifications more reliable. The comment could have led jurors to give the identification less scrutiny, the court said.
The court noted that defence counsel had not requisitioned the trial judge on these points after the charge. It nevertheless concluded that it could not be sure no miscarriage had occurred, given the centrality of identification and the unsupported suggestion that gardaí’s evidence required less care. The court treated the leave application as the appeal, allowed it, quashed the convictions and ordered a retrial. The judgment does not state the outcome of any retrial.