Court of Appeal: Hitman in drag loses appeal against murder conviction

Killian Flood BL

About this case:

• Citation:
  [2021] IECA 179
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice George Birmingham

Although there were numerous grounds of appeal that were formulated, the court held that none of the points raised were sufficient to overturn the conviction. The court observed that many of the grounds of appeal were “completely lacking in any substance” and therefore only a small number of points required in-depth consideration.

The judgment was mainly directed at the identification and forensic evidence which was adduced in the case.

Background

In 2015, the victim was driving in a car owned by Jason O’Connor. He was delivering racing pigeons for Mr O’Connor to the Blanchardstown Racing Pigeons Club. As he parked the car, he was shot 18 times by a man wearing women’s clothes. Several eyewitnesses described the gunman taking a submachine gun out of a handbag and opening fire. The shooter was wearing a long black wig, women’s sunglasses and leggings.

Witnesses gave evidence of a man wearing women’s clothing who was seen in the vicinity of the pigeon club on the day of the shooting. Two young witnesses said they had interacted with a man wearing women’s clothes, makeup and a cut over his right eye, who sought directions to the pigeon club. He had a woman’s handbag and a tattoo on his arm.

On foot of information received at the scene of the crime, gardaí obtained a search warrant for a property in County Meath. Armed gardaí entered the premises and found Christopher McDonald, the appellant. He appeared to have makeup on his face and a cut over his right eye. He was arrested and taken to Blanchardstown Garda Station for questioning. During his detention, various samples were taken for forensic analysis.

A few days later, gardaí located a handbag, a gun, a wig and a glove in a laneway near the crime locus. The gun had a magazine for 25 bullets and many had been fired. The ammunition was the same found at the scene of the crime. Further, samples from the glove and wig matched the appellant’s DNA profile. There was also firearm residue on the items, leading an expert to give evidence that it was a strong likelihood that the killer was wearing the items.

The appellant was convicted of the murder in 2017 and appealed to the Court of Appeal on a number of grounds. The most significant of these were 1) whether the jury should have been discharged after Mr O’Connor threatened and lunged at Mr McDonald during the hearing; 2) whether the appellant’s arrest was lawful based on the warrant and; 3) whether the forensic samples were lawfully taken.

Court of Appeal

Giving judgment in the case, Mr Justice George Birmingham rejected each of the grounds of appeal of the appellant and upheld the conviction. On the first issue, the court noted that it was unacceptable for Mr O’Connor to have engaged in a violent outburst at the appellant and having to be restrained. However, it was noted that the deceased and Mr O’Connor were friends and that Mr Walker may have died due to a case of mistaken identity as he was driving Mr O’Connor’s car at the time. In any event, the matter did not require the discharge of the jury as it was very easy for the trial judge to make a direction on the incident.

The court then moved to consider the lawfulness of the arrest. The appellant claimed that the arrest was unlawful because the warrant was defective and the arresting officers had not formed a reasonable suspicion to justify the arrest. Mr Justice Birmingham upheld the trial judge’s ruling that the appellant could not assert constitutional dwelling rights where he was not the owner of the property.

Further, the court said that there were “ample grounds” for the officer’s suspicion. This was so in light of the very specific description given by witnesses. The cut above the eye and the makeup were clear demarking factors and the fact that the arresting garda consulted with colleagues who had taken witness statements at the crime scene was “responsible and careful”.

The final major consideration related to the lawfulness of the forensic samples. The DNA samples were taken after the appellant had requested the attendance of his solicitor but before the solicitor arrived. The appellant had taken issue at trial of the legal authority for those samples and, specifically, whether they were obtained lawfully under common law powers.

The gardaí had obtained the consent of the appellant to the taking of the samples (required when exercising the common law power) but this was before the solicitor arrived. As such, the appellant argued that under DPP v. Gormley and White [2014] 2 IR 591 the samples were unlawfully obtained.

The court outlined the judgment in Gormley and White and the two different situations regarding the right of access to a lawyer. The court said that the present case fell between the two scenarios in Gormley and White, because the gardaí did not use the compulsory process under the Criminal Justice (Forensic Evidence) Act 1990 to obtain the samples. Instead, they relied on the appellant’s consent, which was a choice that might have been made after receiving legal advice.

The court noted that in Gormley and White, there had to be fundamental fairness in the process of arrest, detention and charge. The court said that this principle was not engaged in the same way as other cases, in circumstances where there was statutory power to compulsorily obtain the DNA samples. Although the appellant had the choice to consent to DNA testing, a refusal would inevitably have led to statutory powers being used by gardaí. Accordingly, there was no “genuine legal choice” taken by the appellant and that the DNA samples were properly obtained.

Conclusion

There were several other grounds of appeal which were rejected in clear fashion by the court and, in light of its findings, the court dismissed the appeal.