A judge has taken the “exceptional measure” of directing a trial jury to find two men accused of the attempted murder of a teenager in Dublin not guilty due to a lack of evidence against them.
Upon receiving Ms Justice Eileen Creedon’s judgment, the two stood and celebrated in the dock, slapping hands and hugging, with accused man Jamie Berry telling his supporters in the court: “I’m going home. I’m going home soon.”
On Wednesday, Ms Justice Creedon ruled on an application from the defence to drop the charges against Mr Berry and Stephen Mulvey, who had been accused of the attempted murder of a then 17-year-old boy at a residential estate in southside Dublin at around 10.55pm on the night of February 24th, 2021.
Mr Mulvey (31) and Mr Berry (27), both of Leo Fitzgerald House, Dublin 2, had both been accused of the attempted murder of the now 19-year-old at Eugene Street, Dublin 8, and of possession of a firearm, a Beretta pistol, with intent to endanger life on that date.
Mr Berry had also been accused of criminal damage to a home on Eugene Street on the same night, where a bullet passed through the front door, an internal wall and smashed through the glass of an oven cooker.
Both men had pleaded not guilty to all charges.
On Wednesday, Ms Justice Creedon told the jury to find Mr Berry and Mr Mulvey not guilty by reason of her direction because the prosecution evidence against the defendants was “not sufficiently strong enough” to ask them to come to a verdict.
Defence barristers Garret Baker SC and Hugh Hartnett SC had submitted that the evidence against their clients was so “tenuous, inconsistent or vague” that the links in the circumstantial case made by the prosecution were not strong enough for the jury to infer guilt.
Ms Justice Creedon said a gun found in a burnt-out Hyundai after the shooting could not be linked to either man. She said that while gloves worn by Mr Berry had firearms residue on them, it could not be found that they directly linked him to being the actual “shooter” in the case, only that it was likely they had been worn during the discharge of a firearm.
The movements of two cars on the night, the burnt-out Hyundai and a black BMW could not be directly linked to the two men in terms of procurement but only to another individual not before the court through a phone number used in their purchase.
Ms Justice Creedon said that there was no direct evidence identifying either defendant at the scene in a case where eyewitnesses could only say they saw two youths or young men running from the scene on Eugene Street on the night.
While CCTV of the movements of the vehicles had been played to the jury over three days of the trial, no footage of the shooting at Eugene Street had been produced by the prosecution.
The judge said the BMW had been caught on CCTV leaving Pearse Street in Dublin city earlier in the day but its movements were not recorded again until it made its way through an M50 toll booth over six hours later, after 11pm – 20 minutes after the shooting.
The BMW, it had been alleged by the prosecution, was the getaway car parked up at nearby Greenville Avenue, close to Wolseley Street, after the Hyundai had been burnt out by three men.
Ms Justice Creedon said that CCTV footage showed Mr Mulvey walking at various inner city locations six-and-a-half hours before the shooting but that when the car entered the M50 after 11pm this was the first sighting of Mr Berry on CCTV.
Ms Justice Creedon said that CCTV of the burning of the Hyundai only showed “three pairs of legs” moving from the vehicle as it was set alight.
The judge said there had been no phone evidence, DNA evidence, social media evidence or evidence of motive in the case.
Ms Justice Creedon said the defence had argued that “a difficulty arises when there is some evidence but it is of such a tenuous character, because of inherent weakness or vagueness, or that it is inconsistent with other evidence, that the judge comes to the conclusion that the prosecution’s case, taken at its highest, is such that a jury, properly directed, could not convict upon it, then it is the court’s duty to stop the case”.
Ms Justice Creedon said the withdrawal of the case from the jury should only be “an exceptional measure for the purpose of avoiding a manifest risk of an unfair trial or wrongful conviction”.
Ms Justice Creedon said that the case had been a circumstantial one in which the prosecution alleged “joint enterprise” on behalf of the two defendants. The Judge said the case against both did not involve direct evidence but inferences that the two men acted with intent to commit a criminal act.
“Having considered the evidence of the specific charges before the court and the arguments, the court is satisfied that it is not properly open to the jury to reach the inference contended by the prosecution. Accordingly, the court accedes to the application on behalf of both accused to withdraw all charges from the jury,” said the judge.
After the jury foreman signed the issue paper of the directed verdict, Ms Justice Creedon thanked the seven women and five men for their service and excused them from jury service for five years.
The trial was in its 11th day of hearing when the not guilty verdict was directed.
During the trial, the prosecution had alleged that the shooting was a “well-planned and premeditated hit”.
Prosecution counsel Eilis Brennan SC said the teenager had stopped to call into a residence on the night and then ordered a taxi.
However, upon entering the Toyota Prius and sitting on the rear passenger side, he was shot a number of times at close range causing heavy bleeding. Ms Brennan said that the injured party tried to escape the scene but had suffered one-centimetre bullet injuries to the right lower cheek, the left side of his neck and his right thigh.
It had been the State’s case that Mr Berry was the “shooter” and Mr Mulvey was assisting along with another male not before the courts. Counsel had said the two men ran from the scene of the shooting and got into a black Hyundai hatchback manned by a getaway driver that was waiting nearby. The Hyundai was later found burning out at Greenville Avenue, Sandford Gardens, Dublin 8, where the handgun was recovered before three men transferred into the nearby BMW.
In his evidence to the court, the injured teen had told Ms Brennan that he had no memory of the night.
The teenager told Ms Brennan that he could not remember going to Eugene Street or meeting anyone there on the night. The injured party also said he could not remember anything about the shooting, his injuries, going to hospital, his length of stay there or of regaining consciousness.