A teenager jailed for life two years ago, having lured another teen to his death by pretending to be a girl, has moved to appeal his conviction for murder.
Marcus Kirwan, of Cooley Road, Drimnagh, Dublin, who is now 21, had denied murdering 19-year-old David Byrne in Dublin four years ago.
The Central Criminal Court heard Kirwan had lured Mr Byrne to a meeting on the night of March 19th, 2011, by sending text messages pretending to be a girl.
When the Drimnagh teenager arrived to meet the girl, he was set upon by Kirwan and other youths, who chased him into a dead end at an apartment complex.
Kirwan then stabbed Mr Byrne nine times, once in his face and eight times in his back. His heart and lungs were punctured and one of the fatal wounds was 20cm deep.
A jury found him guilty following a three week trial and he was given the mandatory life sentence by Mr Justice Garrett Sheehan on February 4th, 2013.
Kirwan moved to appeal his conviction on grounds involving an arrest warrant as well as alleged infirmities in the identification process and CCTV evidence.
His barrister, Dominic McGinn SC, submitted that the superintendent to whom a warrant was issued for Kirwan’s rearrest did not have the authority to delegate the power of arrest to another garda.
It was understandable for historical reasons that the superintendent believed he had power to delegate the authority to another garda but under close scrutiny he had no such power to do so, Mr McGinn submitted.
The warrant could easily have been worded in such a way to allow the arrest to have been made by someone other than the superintendent, Mr McGinn said.
The superintendent could have told the District Court judge he was ‘not going to be making the arrest, another garda would, please empower them’.
Of concern, Mr McGinn said, was that the trial judge cited a section dealing with the geographical extension of a garda’s powers when he ruled in favour of the prosecution.
When asked what impact the Supreme Court ruling on inadvertent breaches of Constitutional rights known as 'JC' would have on his submission, Mr McGinn said the garda maintained there had been no mistake in what he had done but it was deliberate; it was "his policy".
That was very different from the test in ‘JC’ which dealt with inadvertent breaches of Constitutional rights, Mr McGinn said.
Counsel for the Director of Public Projections, Denis Vaughan Buckley SC, said it had been accepted since “time immemorial” that the superintendent did have the power to delegate the authority to another garda and it was “ridiculous” to suggest now that he did not.
Mr Vaughan Buckley cited legislation from 1836 to support his argument which Mr McGinn described as “Victorian legislation”.
Even if the rearrest was unlawful, Mr Vaughan Buckley said, there was no conscious or deliberate breach of Constitutional rights in reference to the ‘JC’ case.
Mr Justice Michael Peart, who sat with Mr Justice George Birmingham and Mr Justice Alan Mahon, said the three judge court would reserve judgment and would hope to indicate its decision before the end of the month.