The Court of Criminal Appeal has dismissed Brian McGinley’s application for leave to appeal his conviction for aggravated burglary. It said the grounds advanced did not establish a basis to grant leave. The court reserved the applicant’s separate appeal against the severity of his sentence for consideration at a later date.
A jury at Tullamore Circuit Criminal Court convicted McGinley by a 10-to-2 majority on 5 November 2010. He was sentenced to 10 years’ imprisonment on 1 December 2010. His application challenged the conviction and also raised sentence severity, but the appeal court’s 14 March 2013 judgment addressed the application for leave to appeal the conviction and deferred the sentence matter.
The prosecution case linking McGinley to the February 2005 aggravated burglary at the Kilmartin family home depended on DNA evidence from a stain on the boot lid of Damien Kilmartin’s car. The court noted that this was the only evidence linking McGinley to the crime and that the defence did not challenge the scientific basis of the DNA match. The appeal instead focused on whether the material was blood, whether it was connected to the raid, and whether the samples tested had been properly traced through the evidence chain.
The applicant argued that the trial judge should have withdrawn the case from the jury, including because the Kastle-Meyer test for blood was inconclusive and because of alleged gaps in the handling records. The appeal court held there was evidence for the jury to consider: several Garda witnesses described the stain as fresh and conspicuous, and Kilmartin said he first noticed it after the raid. The court also said the inconclusive test result was not the same as a negative result. It found no demonstrated break in the chain of evidence and said the jury was entitled to assess the witnesses’ accounts and records.
McGinley also challenged evidence that a witness had seen someone resembling “one of the McGinleys” near the area before the raid, evidence of a scar on his finger, and aspects of the judge’s directions on circumstantial evidence. The court found the challenged evidence admissible in context, noting the jury had been warned that the sighting did not identify the applicant and that the scar had only slight probative value. Although it described the trial judge’s strong comment that an alternative explanation for the stain was “far-fetched” as unusual and unwise, it concluded that no injustice resulted and that the charge was not unfair.
Having considered the grounds of appeal, the court dismissed the application for leave to appeal the conviction. It did not determine the sentence appeal in this judgment.