The presiding judge in the trial of four men accused of abducting and torturing Kevin Lunney has asked a defence lawyer if he is suggesting that gardai engaged in "hanky panky" by planting the businessman's DNA in a van.
Lawyers for three of the accused said gardai seized the Renault Kangoo and kept it in a forensic examination facility in Santry in Dublin that could be accessed by multiple gardai, yet no record was kept of who came and went.
They said Dr Edward Connolly of Forensic Science Ireland found an area of red and brown suspected blood staining in the van two days after experienced forensic examiners carried out a full examination and found nothing.
Swabs taken from the area identified by the scientist were tested and revealed DNA matching Mr Lunney's.
Giollaiosa O'Lideadha SC, for the accused man Alan O'Brien, said the defence is concerned that there is a "reasonable basis to conclude that the stain was not there on October 29 and it clearly was there on the 31st."
He said it "arises as a reasonable possibility" that someone with DNA matching Mr Lunney's got into the Santry facility and put his DNA in the van.
Presiding judge Mr Justice Tony Hunt asked if Mr O'Lideadha was suggesting the blood was "planted". Counsel replied that he doesn't have to prove it was deliberate.
Mr Justice Hunt said the defence lawyers were suggesting "hanky panky" by gardai.
The defence are challenging the admissibility of the DNA evidence and the three-judge, non-jury court is expected to rule on that challenge next Tuesday when the trial resumes.
Lawyers also argued that they have been deprived of an opportunity to carry out their own forensic examination of the van because it was destroyed in a fire after it was moved from Santry to a storage yard in Cavan in February 2020. The trial has heard the fire was caused by defective walkie-talkie battery chargers which had been left operating overnight in an adjoining office.
Mr O'Lideadha said gardai had failed in their responsibility to preserve evidence by leaving the van in a place where batteries were charging overnight. "Everyone knows you shouldn't do that," he said.
Sean Guerin SC for the prosecution said the defence had offered no basis for saying the destruction of the van had disadvantaged them. He said any test carried out by experts for the defence would not have undermined the first test which revealed DNA matching Mr Lunney's.
A 40-year-old man named as YZ, 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 guilty to false imprisonment and intentionally causing serious harm to Mr Lunney at Drumbrade, Ballinagh, Co Cavan on September 17, 2019.
Mr Lunney has told the court that he was bundled into the boot of a car near his home and driven to a container where he was threatened and told to resign as a director of Quinn Industrial Holdings. His abductors cut him with a Stanley knife, stripped him to his boxer shorts, doused him in bleach, broke his leg with two blows of a wooden bat, beat him on the ground, cut his face and scored the letters QIH into his chest. They left him bloodied, beaten and shivering on a country road at Drumcoghill in Co Cavan where he was discovered by a man driving a tractor.
Michael O'Higgins SC, for YZ, said it is "odd" that no record is kept of who comes and goes from the Santry facility. He said that when experienced members of the Garda Technical Bureau examined the van on October 29 they didn't notice the "brown, reddish" stain which Dr Connolly found two days later.
He pointed out that Dr Connolly said the stain was visible without the assistance of chemical agents and he would expect it to be found by a technical examiner.
He said a member of the National Surveillance Unit (NSU) gave evidence that he accessed the van on October 23 to recover a surveillance device that had been placed in the van two days earlier. The NSU detective's visit, counsel said, was not recorded and was only disclosed to the defence this week after they raised concerns about the preservation of the van. He said the complaints made by the defence are not "fanciful or absurd" and that the manner in which the van was preserved was "far from ideal".
Regarding the fire, counsel said he doesn't have the building blocks to make the case that it was started maliciously. He added: "It doesn’t have to be an act of malice. If it was stored in an unsafe building, that is unsatisfactory." He said it is unfair that the defence is unable to carry out their own forensic tests on the van.
Mr O'Lideadha said the fundamental issue for the court to consider is whether the destruction of the van causes any unfairness to the accused.
He said it is reasonably possible the stains were not there on the 29th because forensic examiners did not see them despite Dr Connolly's evidence, which Mr O'Lideadha summarised as: "if it had been there it would have been seen." He said the defence does not accept any of Dr Connolly's evidence but he can't contradict the scientist because the van has been destroyed.
He said he does not accept the prosecution's theory that one of Mr Lunney's attackers transferred the blood to the Kangoo on their clothes or hands.
He added: "Therefore we wanted an expert examination to test all aspects of the matter, including whether that substance or DNA got into that vehicle after October 23 [when it was seized by gardai]."
He described it as a "matter of the greatest significance" and said it is not for the defence to prove that evidence has been planted but it is the right of an accused person to have a fair trial.
Mr Guerin said there was no suggestion of misconduct by gardai regarding the fire. He said the suggestion that nobody should leave vehicles in an area where batteries are charging overnight is "entirely divorced from the reality of modern life." There was no obvious defect with the battery chargers and no failure on the part of the people operating the facility, he said.
He added: "Nobody in the modern world would accept that a building is unsafe because there are batteries charging overnight."
Any further DNA profiles produced from the van, counsel said, would not diminish the probative value of Mr Lunney's DNA being there and no further examinations could have shown when the DNA material was deposited. Nothing said by the defence, he said, had shown how they were disadvantaged by the loss of the van.
Counsel could not say why the Santry facility does not keep a log of who comes and goes. Mr Justice Hunt said: "It seems rather odd." Mr Guerin replied: "It is described as a secure facility and there is no reason to believe it was interfered with in any way."
Mr Justice Hunt is presiding with Judge Gerard Griffin and Judge David McHugh.
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