The trial of Aaron Brady, who was convicted of murdering Detective Garda Adrian Donohoe, remained the only case at hearing as the Covid pandemic took hold in Ireland and it was inappropriate for a jury to determine his guilt or innocence as people were dying from the virus, his lawyers have told the Court of Appeal.
Brady, who was jailed in 2020 for a minimum of 40 years for the murder of the detective, has launched a bid to overturn his conviction in what the appellate court heard on Wednesday was "one of the longest cases ever" before it.
At Wednesday's hearing before the three-judge appeals court, Michael O'Higgins SC, representing Brady, said it was plausible that the jurors were worried about dying, or about others close to them dying, which had deteriorated the quality of their deliberations.
Brendan Grehan SC, for the Director of Public Prosecutions (DPP), told the three-judge panel that there was not "an iota of a suggestion, never mind evidence" that the jurors felt coerced to come to court and that no "unbearable burden" had been placed on them.
Brady (32), previously of New Road, Crossmaglen, Co Armagh, is serving a life sentence with a 40-year minimum having been found guilty in 2020 of murdering Det Gda Donohoe (41) at Lordship Credit Union in Bellurgen, Co Louth on January 25th, 2013.
Brady was also sentenced to 14 years for the robbery, a sentence that will run concurrently with the life sentence.
Det Gda Donohoe was on a cash escort when he was ambushed by a five-man gang and shot dead. The raiders stole €7,000 in cash during the robbery, which lasted 58 seconds.
Brady was led into court on Wednesday by prison officers and wore a navy suit and pink tie.
The appeal is expected to mainly focus on defence complaints regarding two witnesses who gave testimony via video link from New York during the Covid pandemic.
Brady's trial was also the longest murder case in Irish legal history, lasting 122 court days. He was found guilty of the murder of Det Gda Donohoe by an 11-1 majority jury verdict at the Central Criminal Court in August 2020.
Covid
Opening an appeal against conviction on Wednesday, Mr O'Higgins submitted that the trial court had erred in directing that the case should proceed during the Covid lockdown and gave a breakdown of Covid statistics to contextualise the circumstances.
Whilst the barrister accepted that all criminal trials at hearing in March 2020 continued to finalisation, he said most of those cases had finished within two to three days.
"It was a ghost town in here, and we were the only case working. Driving in and out of here was something like a movie set. You have to ask yourself why was this case different from all other cases," he said.
Counsel for the appellant said his client's case continuing for several months after March 2020 had been "an unbearable burden for everyone and for the jury". "This was an unprecedented set of circumstances, I don't understand why this one case was being singled out over every other case to go on," he argued.
It was not normal, Mr O'Higgins said, for jurors to come and work in a courtroom of 31 people when there was a "deadly disease out there", where people were dying in significant numbers and everybody "was very very frightened".
He added: "It is not appropriate to come in and work in that environment and to determine the guilt or innocence of a person in terms of that gravity."
Mr O'Higgins said the now retired trial judge, Mr Justice Michael White, had heard defence arguments to abandon the trial but the judge had exercised his discretion that the case should go on. "It was an extremely complicated case on many levels, and the judge was wrong in those circumstances not to discharge the jury," Mr O'Higgins claimed.
Evidence
Commenting on Mr O'Higgins submission, Mr Justice John Edwards, presiding, asked the lawyer whether there was any evidence that the jury felt under "improper pressure" to which counsel said there was "none".
However, counsel submitted that people should not be working in an environment where their existence is threatened, adding that it was plausible that the jurors were worried about dying or about others close to them dying.
"To work in a room with 31 other people and making decisions as mammoth as this, it's likely that had deteriorated the quality of their deliberations," he concluded.
In response, Brendan Grehan SC, who represented the DPP at Brady's trial, said whilst he accepted the "bona fides" of Mr O'Higgins argument in which he expressed public health and personal concerns, it was a subjective view and highly speculative to suggest that everybody was afraid they were going to die.
The trial judge, he said, had dealt with the evolving situation "in exemplary form" given the information available to him at the time and could not have been more conscientious.
Counsel said the jury had been in attendance at the trial up to March 4th, 2020, and were not brought back to court until May 6th that year, when both sides had "busied" themselves dealing with legal issues without the jury coming to court.
Mr Grehan added: "The public health advice provisions were put in place, to suggest that the judge should instead go off on a frolic of his own is a ludicrous suggestion and that the judge should conduct his own mini inquiry as to how Covid should be dealt with."
Mr Grehan argued there was not an iota of a suggestion, never mind evidence, that the jury felt somewhat compelled or coerced to come to court and that no "unbearable burden" had been placed on them.
"There has been a wholesale failure on the defence to put flesh and blood on the argument they seek to make," he said.
Further grounds of appeal included that the court erred in refusing to discharge the jury as a consequence of the cross-examination of the appellant's former solicitor, Danny McNamee.
The appeal continues on Tuesday before Mr Justice Edwards, sitting with Ms Justice Isobel Kennedy and Ms Justice Tara Burns.
