The Court of Criminal Appeal set aside Michael O’Callaghan’s convictions for robbery and possession of a firearm or imitation firearm with intent to commit an indictable offence, ruling that the evidence was insufficient for a properly directed jury to convict beyond reasonable doubt.
The judgment, delivered by Murray J. on 31 July 2013, concerned an application for leave to appeal from convictions returned by a jury in Cork Circuit Court on 15 February 2011. O’Callaghan had received concurrent 10-year sentences, consecutive to a three-year sentence imposed in 2009.
The court focused on the ground that the case should have been withdrawn from the jury for lack of sufficient prosecution evidence. It said the case rested on three strands: a witness’s account, O’Callaghan’s statements about his movements on the day, and DNA evidence.
The robbery took place at Blackpool Post Office in Cork on 26 March 2009. Two masked men entered, one carrying what appeared to be a handgun, and just under €20,000 was stolen. Brian Galvin told the trial that he saw two men running away, one with a gun. His earlier statement to gardaí, admitted at trial under section 16 of the Criminal Justice Act 2006, said one man removed a balaclava and threw it into the canal. The court said Galvin did not identify O’Callaghan or otherwise directly link him to the robbery.
The prosecution also relied on O’Callaghan’s account to gardaí that he had been at home for much of the afternoon. A social welfare receipt and CCTV showed he had visited the post office around midday. The court said his failure to mention that visit and his account of his whereabouts were too tenuous, on their own, to connect him to the later robbery.
A homemade balaclava recovered near the canal had DNA from at least three people. A forensic scientist said the major DNA profile from the nose and mouth area matched O’Callaghan’s profile, with the estimated chance of an unrelated person having the same profile considerably less than one in one thousand million. DNA from other people was also present, and the scientist could not say when any of the contributors had touched the material. The court said the evidence did not allow a jury to distinguish O’Callaghan from those other, unidentified people or establish who wore the balaclava during the robbery.
It concluded that no properly directed jury could rationally find beyond reasonable doubt, on the evidence presented, that O’Callaghan rather than another person who had been in contact with the balaclava committed the offences. The court held that the case should not have gone to the jury and set aside the verdicts as unsafe. The judgment does not state that the court entered acquittals or made any further order.