The Court of Appeal has dismissed Gary Flynn’s appeal against his conviction for the murder of Shay O’Byrne, finding the trial satisfactory and the verdict “proper and safe”. The judgment was delivered on 20 February 2018 by Mr Justice Birmingham, with Mr Justice Mahon and Mr Justice Hedigan.
Flynn was convicted on 16 March 2016 after a 34-day trial. The prosecution alleged he was part of a joint enterprise in O’Byrne’s murder at his home in Tallaght on 13 March 2009. Garrett O’Brien had been convicted in a separate trial as the gunman, while Eugene Cullen had also been convicted. Flynn’s case relied substantially on circumstantial evidence, including his association with Cullen, telephone activity and gunshot residue found on his clothing and right hand.
On appeal, Flynn argued that the trial judge’s directions did not adequately put the defence case, particularly the possibility that gunshot residue had been transferred innocently after the murder. The Court of Appeal said the defence had raised several possible sources of contamination but had not advanced a specific positive explanation. It found that the judge reviewed the residue evidence comprehensively and that the charge, read as a whole, was careful, comprehensive and balanced.
The court also rejected challenges to the directions on reasonable doubt and jury unanimity. It said the jury had been told it must reach a unanimous verdict, but there was no obligation to give the additional direction sought by the defence that no juror should feel pressured to agree. The court noted that the jury was not under time pressure and could have continued deliberating after the public holiday.
Flynn challenged the admission of evidence from phones seized at addresses where he did not live, arguing that the searches and access to phone data breached rights and that the Supreme Court’s decision in *DPP v J.C.* had changed the rules on excluding evidence. The Court of Appeal held that he could not rely on other people’s constitutional privacy rights and found an adequate basis for requests to service providers for relevant phone information. It rejected the telephone evidence challenges and upheld the trial court’s decision to admit that evidence.
The court also dismissed challenges relating to the stop, arrest and detention. The trial judge had found Flynn was arrested at 11.30pm, after the car was stopped outside Cullen’s address at 11pm. The appeal court said that even if his liberty had been restricted earlier, this did not invalidate the arrest or the subsequent evidence. It found no Garda misconduct.
Some appeal grounds concerning DNA swabs, fingerprints, clothing and seizure of a van were not pursued at the hearing. The court said it would not have upheld those grounds in any event. The appeal was dismissed.