One of the four men accused of falsely imprisoning and assaulting Quinn Industrial Holdings (QIH) director, Kevin Lunney, has complained to the garda ombudsman that DNA was "planted" on a van that he says was deliberately destroyed in a fire so it wouldn't be made available to the defence, the Special Criminal Court was told today.
However, lawyers for the State told the three-judge court that the fire began accidentally.
The non-jury court will rule next month on whether the 12-week trial can go ahead in January as scheduled after lawyers for the four accused today, Thursday, November 26 applied to adjourn the case.
Luke O’Reilly (66), with an address at Mullahoran Lower, Kilcogy, Co Cavan; Darren Redmond (25), from Caledon Road, East Wall, Dublin 3; Alan O’Brien (39), of Shelmalier Road, East Wall, Dublin 3 and the fourth accused man, who cannot be named for legal reasons, are all charged with false imprisonment and assault causing serious harm to Mr Lunney at Drumbrade, Ballinagh, Co Cavan on September 17, 2019.
Mr Lunney (50), a father of six, was abducted close to his home in Co Fermanagh on the evening of September 17. The businessman's leg was broken, he was doused in bleach and the letters QIH were carved into his chest during the two-and-a-half hour ordeal before he was dumped on a roadside in Co Cavan.
The four defendants were sent forward for trial before the Special Criminal Court last March and the non-jury court has fixed January 11, 2021 as their trial date. It is expected to last 12 weeks.
Defence counsel Michael O'Higgins SC, for the unnamed man, told the three-judge court today that he was applying to adjourn the trial in January on four grounds.
The barrister said the first ground concerned "the volume of disclosure" and in his submission there was no reasonable prospect that the material would be scrutinised in the available time. "My client said he wants to see the material himself and go through it and that is not an unreasonable request," he added.
Secondly, Mr O'Higgins said High Court challenges are also being brought by the defendants against the Special Criminal Court's jurisdiction to try the matter. The High Court has set a hearing for February 23 and the correct thing to do was to adjourn the trial pending the outcome of the judicial review matter, he said, adding that there was "no stay" in place.
Furthermore, Mr O'Higgins said there was also important DNA evidence found on an abandoned Renault Kangoo van, which went on fire from an electrical fault. He submitted that GSOC was carrying out an investigation into the fire and it did not seem unreasonable to wait for the outcome.
The three-judge court has heard that a van used in the alleged abduction of Mr Lunney was seized by gardai during the investigation. However, the Special Criminal Court was previously told that the vehicle may have been "accidentally burned" while in the possession of gardai.
In addition, Mr O'Higgins argued that the law on the retention and accessing of mobile phone data was in a "state of flux" in Ireland and one needed to have certainty on these issues before the trial commenced. He submitted that three decisions are awaited from the European Court of Justice (ECJ) and it was "inconceivable" that the trial should proceed in circumstances where the law was unknown.
The barrister said it would be necessary for the Supreme Court to write a judgement once the reference had been answered by the ECJ and outline where it "fitted" into Irish law, something which the superior court is not currently in a position to do. "I prefer the certainty of knowing what it is then wading into quicksand," he added.
Michael Bowman SC, for Mr Redmond, said he adopted Mr O'Higgins position concerning the mobile phone data and he also wanted to understand what had happened to the Kangoo van in the fire. "The van is gone, the cause of the fire may be something that requires further investigation," he added.
In reply, Sean Guerin SC on behalf of the Director of Public Prosecutions (DPP), said he was opposing the application for an adjournment of the trial. Mr Guerin called the application regarding the issue of the retention of mobile phones an "illusory" one and said the Special Criminal Court should proceed to exercise its jurisdiction to hear the criminal allegation.
The lawyer said the case involved very serious violence to a person and the State had an obligation to ensure the prosecution and vindicate the personal rights of the victim. "That requires a trial as early as possible," he added.
Mr Guerin said the Renault Kangoo van, which had come into the possession of gardai, had Mr Lunney's DNA on it and allegedly that of one of the accused men.
Mr Guerin said the fourth accused, who cannot be named for legal reasons, had made a complaint to GSOC that DNA evidence was "planted" on the vehicle, before it was destroyed in order that it would not be made available to the defence.
There was CCTV footage available, which had been disclosed to the defence, and it showed a "bank of sockets" overloaded with phone chargers inside the van, said Mr Guerin. He explained that one could see the electricals beginning to spark, a fire taking hold and destroying the premises on the footage.The lawyer said the vehicle was not available as it was destroyed by a fire, which had begun accidentally.
Mr Justice Tony Hunt presiding, sitting with Judge Sarah Berkeley and Judge Michael Walsh, said there was a "fair bit to think about and weigh up". The three-judge court will rule on the proposed adjournment of the trial on December 7.
Last year, the Supreme Court heard an appeal against a High Court ruling in favour of Graham Dwyer which formed part of his bid to overturn his conviction for the murder of childcare worker Elaine O'Hara. The State had appealed the decision by High Court judge Mr Justice Tony O'Connor that part of Ireland's retention laws concerning information generated by telephones contravened EU law. Dwyer claimed that data generated from a phone under the 2011 Communications (Retention of Data) Act should not have been used at his 2015 trial before the Central Criminal Court.
Dwyer’s mobile phone data battle was referred from the Supreme Court to the ECJ earlier this year as the superior court found that EU law at the time was not clear enough for a judgment to be made.
The ECJ has ruled in two similar cases recently that member states and service providers do not have broad rights to retain data on citizens and Irish officials now believe the ECJ is likely to rule against the State on that issue.
In light of its recent rulings, the ECJ asked the Supreme Court if it wished to proceed with its referral of the Dwyer case. The Supreme Court responded that it wished the case to proceed as there were additional issues raised by the referral. The ECJ hearing is expected to begin in mid-January and once it rules, which may take some time, the matter will be referred back to the Irish Supreme Court for further argument and judgment.