The actions of one of the men accused of abducting and torturing Kevin Lunney are "very suspicious" but do not lead to the inevitable conclusion that he was one of the men who attacked him, the Special Criminal Court has heard.
Michael O’Higgins SC addressed the three-judge, non-jury court on behalf of the accused known as YZ, who cannot t be named for legal reasons.
Mr O’Higgins warned the court to avoid coming to a conclusion that might appear logical based on suspicion but that falls short of the required level of proof.
Counsel for Alan O’Brien said his client has no case to answer as the prosecution has not proven that he was in Cavan on the day of the offences against the Quinn Industrial Holdings (QIH) director.
Counsel for Darren Redmond said the prosecution had "overreached". He challenged the identification of his client on CCTV and said mobile phone location data that the prosecution said showed his client traveling to Cavan on the day of the offences had actually shown "nothing other than the presence of a telephone possibly within a vehicle".
Counsel for Luke O’Reilly will deliver his closing speech on Friday.
YZ (40); Alan O’Brien (40), of Shelmalier Road, East Wall, Dublin 3; Darren Redmond (27), from Caledon Road, East Wall, Dublin 3; and Luke O’Reilly (68), with an address at Mullahoran Lower, Kilcogy, Co Cavan; have all pleaded not (NOT) guilty to false imprisonment and intentionally causing serious harm to Mr Lunney at Drumbrade, Ballinagh, Co Cavan on September 17th, 2019.
Mr O’Higgins said he concede his client’s actions were suspicious. But, he said, the circumstantial evidence pointed to by the prosecution should not lead the court to “inexorably conclude that the only reasonable interpretation is” that the men responsible are his client and two other men who were traveling in a Renault Kangoo van in Cavan on the same day.
Counsel also said that the court should consider whether the prosecution has excluded the possibility that Mr Lunney’s DNA was planted inside the van, which was subsequently destroyed by a fire at a storage yard in Cavan in February 2020.
Wiped clean
Mr O’Higgins said the court appeared to have taken the view during legal argument in the trial that unless there was footage of a man in dark clothing planting evidence, the defence should not even pursue it.
Mr O’Higgins said the first question the court should ask is, “is there a smell off this?” and to consider that if his client was as forensically aware as the prosecution has suggested, why would he not have made sure the van was wiped clean?
Gardaí, he said, had given contradictory evidence about whether the van was locked or unlocked when they seized it on October 23, 2019. Gardai took the van to the forensic examination unit in Santry where no record of who comes and goes is kept and where there was evidence that a member of the National Surveillance Unit accessed the van on October 23rd, but no record of that access was logged.
The van was examined on October 29th by Det Garda Ursula Cummins and fingerprint expert Det Garda Ernie Frazer, counsel said. They did not see an area of brownish red marking even though Det Garda Frazer was specifically looking for blood stains because they are good receptors for finger prints.
Dr Edward Connolly examined the van two days later using a chemical agent called Luminol that lights up when it comes into contact with blood. The test required him to turn off all lights but when he got a positive reaction for blood and turned the lights on, he was able to see the stains with the naked eye.
Reasonable possibility
Mr O’Higgins said the prosecution had taken the view that the defence submissions on this topic were frivolous and not worthy of response. But, he said, the court has to look at all the circumstances. “It is absolutely nothing to do with the defence proving that anything was planted. That’s not what this is about. The prosecution must exclude it as a reasonable possibility.”
He said that in the light of the points raised by the defence, “we are just not sure how this got there and when.”
Giollaíosa Ó Lideadha SC, for Alan O’Brien, told the court that the prosecution had made assertions of fact that were not based on the evidence. He said the prosecution could not prove his client left Dublin on September 17th, 2019. There was “no rational, logical basis,” he said, for the prosecution’s assertion that because Mr O’Brien traveled in the Kangoo on September 16th, he must have been in it on the 17th.
Counsel also challenged the prosecution’s claim that a passenger seen in the Kangoo on September 17th was wearing the same clothes as Mr O’Brien was seen wearing earlier when he met YZ and a man identified as Mr Redmond at a car park in Dublin 3.
Regarding the DNA evidence in the van, Mr Ó Lideadha said the prosecution had ignored Dr Connolly’s evidence that he would expect a forensic examiner to see the area of suspected blood staining. He also pointed out that the scientist had not carried out a test to confirm that the stains were blood but only carried out tests that indicated it was blood. Further testing, he said, could have proved whether it was in fact Mr Lunney’s blood.
Onus on prosecution
He said the onus is on the prosecution to prove that the stains were there on September 29th, that they were in fact blood and that the blood belonged to Mr Lunney.
He added: “We have established a reasonable basis for concluding the stain was not there on the 29th, the prosecution has the onus to prove it was there and they can’t do it because they don’t know who had access to the van and they don’t know because they didn’t take the minimal reasonable step of logging who had access.”
Mr Ó Lideadha said his client has no case to answer given the prosecution can’t prove he left Dublin on September 17th.
Mr Ó Lideadha invited the court to come to the conclusion that, as jurors, they could not conclude guilt beyond reasonable doubt.
Michael Bowman SC, for Mr Redmond, said the prosecution had “overreached considerably” using speculation and innuendo. He said the prosecution had asserted his client’s presence on September 17th through identification evidence at the car park in Dublin and mobile phone location data.
Mr Bowman said the garda who identified his client had only met him once. Mr Bowman said the mobile phone location data used by the prosecution proved “nothing other than the presence of a telephone possibly within a vehicle.”
He said there is evidence that the phone was “static” for a period of one hour when the prosecution alleges Mr Redmond was travelling to Cavan. Mr Redmond’s DNA was found on a bar behind the driver’s seat in the Kangoo van. Mr Guerin said in his closing speech that this was “entirely consistent with what you would expect if he was hanging onto those bars to make himself comfortable on the journey back to Dublin.”
‘Extraordinary’
Mr Bowman described Mr Guerin’s comments as “extraordinary” and not backed by the evidence of Dr Connolly who said he could not say when or how the DNA was deposited. The prosecution theory, Mr Bowman said, “has to be disregarded in its entirety.”
He reminded the court that the van was observed by gardaí unlocked within a couple of hundred metres of Mr Redmond’s home on several occasions after Mr Lunney’s abduction.
Counsel cautioned the court against abandoning the presumption of innocence and said the prosecution case that Mr Redmond got Mr Lunney’s blood on his hands when pushing him onto the side of a country road “makes no sense” and “is not evidentially sustained in any way, shape or form.”
The only verdict available, counsel said, is a verdict of not guilty.
Michael Lynn SC for Luke O'Reilly will deliver his closing arguments on Friday to Mr Justice Tony Hunt, presiding, with Judge Gerard Griffin and Judge David McHugh