Lawyers for three men jailed for the kidnapping and torture of Quinn Industrial Holdings director Kevin Lunney have argued that key DNA evidence from a van that was used as a “team bus” by the offenders and was destroyed by fire while in garda custody should not have been admissible at their trial.
Barristers for Alan Harte (43), Alan O’Brien (43), and Darren Redmond (30) also submitted that the Renault Kangoo van was not properly preserved by gardai prior to the fire.
The trial heard that DNA matching Mr Lunney’s was swabbed from areas of suspected blood staining inside the Kangoo van. DNA matching one of the accused men, Darren Redmond, was found on a bar behind the front seats. The prosecution did not allege that Mr Lunney was in the van but rather that someone who had been in contact with Mr Lunney transferred the blood to the van.
Following the trial at the Special Criminal Court in December 2022, Harte, of Island Quay Apartments, O’Brien, of Shelmalier Road, and Redmond, from Caledon Road, all in East Wall, Dublin 3, were convicted of false imprisonment and intentionally causing harm to Mr Lunney at a yard at Drumbrade, Ballinagh, Co Cavan on September 17, 2019.
Career criminal Harte inflicted most of Mr Lunney's serious injuries, including knife wounds to his face and torso, after he was abducted from his home in Co Fermanagh on September 17, 2019. Harte was sentenced to 30 years in prison, while O'Brien received a 25-year sentence and Redmond was sentenced to 18 years with the final three suspended.
On the second day of the hearing before the three-judge appeals court today (Tuesday, December 17), Michael O’Higgins SC, representing Harte, said the trial court erred in refusing to exclude evidence from the examination of the van - specifically that blood and DNA matching that of Mr Lunney was found in it – to advance the proposition that the victim’s blood had been secreted in the van by the offenders.
He also argued that because the vehicle had not been properly preserved while in garda custody and made available for examination, the defence had been deprived of the opportunity to consider any forensic evidence from the vehicle.
Mr O’Higgins said the van featured prominently both in the garda investigation and at trial and was “one of the main pivots” on which the prosecution case was based. He said the evidence had established that the van was not used in the kidnap of Mr Lunney and the role canvassed was that it was “a support vehicle”.
“You could term it if you like the team bus in which the participants were brought to relevant places so they could be ready for the commission of the event,” he said.
The van was seized and initially taken to a garage in Santry before being moved to a location in Cavan where the fire occurred.
Mr O’Higgins argued the State had failed to preserve the vehicle properly while in garda custody as it not stored in a secure location, there was no CCTV covering the facility and no log in relation to who had access to the van. In addition, he said, its integrity had been breached “on at least one occasion” when a surveillance team attended and removed a tracking device from the vehicle. There had been various evidence given as to whether the van had been locked or unlocked while at the facility, he added.
He said the van was subsequently destroyed by fire, which meant that his client could not engage his own expert to carry out further tests.
“The obligation is on the prosecution to establish the providence and integrity of the evidence beyond reasonable doubt,” he said.
Giollaíosa Ó Lideadha SC, representing O’Brien, said the stain found in the vehicle, if it was the blood of Mr Lunney, was not deposited directly by him but was a secondary transfer. He said forensic scientist Dr Edward Connolly gave evidence that he would have expected it to have been observed on a careful examination of the van.
Mr Ó Lideadha said Dr Connolly’s evidence was that if another examination had been carried out on another part of the stain, then that could have yielded further evidence, such as further DNA evidence.
He said the defence never posited the proposition that the blood was planted but that remained “a possibility”.
During the trial, Mr Ó Lideadha argued it arose "as a reasonable possibility" that someone with DNA matching Mr Lunney's put his DNA in the van. He told the court he did not have to prove this was a deliberate act.
Counsel argued today that if there was a realistic opportunity to examine the van that could have been of assistance to the defence, which was lost as a result of lost evidence by the State, then it was a matter of duty – rather than “some kind of discretion to be exercised” - on the trial court to exclude the evidence in question.
Michael Bowman SC, for Redmond, said the prosecution had closed the case by saying his client’s DNA, or a profile matching it, had been present on the bars behind the driver’s seat and that this was entirely consistent with him being in the back of the van holding onto the bars in the back of the vehicle.
He said his client had lost the opportunity to examine the van and to engage his own expert to “stress test” the theory proffered by the prosecution that he was holding onto the bars.
Counsel said in relation to the issue with the van, Mr Redmond’s position was “markedly more prejudiced” than that of his co-accused.
In response, Gareth Baker, for the DPP said there had been nothing in the evidence adduced to act as “some sort of bar to admissibility”.
“The nature of the evidence is highly relevant, highly probative,” he said.
“We say there is nothing there to constitute a sufficient concern to legitimately deem the evidence inadmissible,” the barrister added.
The appeal continues before the three judge court tomorrow (Wednesday, December 18).
