The "spotter" in a gang who gunned down veteran criminal Eamon Kelly over a decade ago has launched a bid to overturn his murder conviction, arguing that the process that identified him from CCTV was flawed and raises a Garda witness credibility issue.
In 2012, father-of-nine Kelly was shot four times in the back by a gunman as he walked towards his home on Dublin's northside. He was one of the country’s most well-known criminal figures, having been involved in organised crime for more than four decades.
In November 2021 at the Special Criminal Court, Mr Justice Alexander Owens said the court found that Darren Murphy (52), who had denied the charge, was guilty of the murder of Kelly at Furry Park Road, Killester, Dublin 5, on December 4th, 2012.
The court found him not guilty of possessing Glock pistol with intent to endanger life on the same date and location due to insufficient evidence.
In January 2022, the three-judge court imposed a life sentence on Murphy, of George's Place, Dublin 1, for his role as a "spotter" in murdering 65-year-old Kelly.
Murphy was involved in the murder as part of the common design of the murder gang, said Mr Justice Owens. "This involved him meeting with other members of the gang on the day of the murder.
He acted in concert with them as the net closed in on Kelly and in coordination with them in the immediate aftermath of the shooting," he added.
CCTV footage, he said, established that members of the gang were "scouting" in Killester in the afternoons leading up to and on the day of the murder.
In 2015, Sean Connolly, then aged 35, of Bernard Curtis House, Bluebell, Dublin, was jailed for life by the Special Criminal Court for Kelly's murder.
At the Court of Appeal on Friday, Paul Carroll SC with James McCullough BL argued that the case against his client, Murphy, "boiled down to the visual identification" by gardaí of Murphy from CCTV footage.
Inner city
Mr Carroll said the superintendent in the case had put in place a new process regarding recognition evidence whereby gardaí were summoned to Balbriggan Garda Station in June 2018 without prior knowledge that the reason was to view CCTV.
Of those 58 gardaí, eight gardaí identified Murphy from CCTV walking his dog in the inner city, which then allowed gardaí to then track Murphy's movements throughout the day, including where he met up with others and travelled in convoy to Killester, where Kelly was murdered.
Presiding at the three-judge court, Mr Justice George Birmingham asked if only eight out of 58 gardaí identified Murphy "does that not indicate the process was a very fair one and not teed up to make identifications?"
Mr Carroll said the prosecution had described the procedure as a "sterile" one, but that all the Garda witnesses gave evidence saying that by 2018 when the CCTV was viewed, "they had all forgotten about knowing that Darren Murphy was a suspect in the Eamon Kelly investigation".
Mr Carroll said he cross-examined six Garda witnesses who had previously looked up Pulse records for Murphy and the Kelly investigation, "yet all came into court saying 'we didn't know he was a suspect'".
"None of them would accept that, 'yes. I knew Darren Murphy was a suspect'. When confronted they said they were not aware that he was a suspect," said the barrister.
Mr Justice Birmingham said that of the two groups who attended Balbriggan - with one being comprised of 28 gardaí - seven identified Murphy, with 21 failing to do so and three of those identifying someone else. Mr Justice Birmingham said that only one of a separate group of 30 identified Murphy from the same footage.
Mr Carroll said gardaí were viewing footage from six years earlier which also raised a "concern" regarding delay.
The barrister said that records showed some gardaí searching Pulse for Murphy and the Kelly investigation "within minutes" of each search entry.
Errors
Mr Carroll said the Special Criminal Court "made errors" in both admitting the CCTV footage and again on the "weight" they gave to it as evidence.
"If someone was aware of the connection between my client and the investigation it wouldn't rule it [identification] out, but it would affect the weight in knowing well my client was a suspect, and then they are being asked to pick him out again," he said.
Mr Carroll said that another concern was that one of the CCTV stills used in the identification process had nobody but his client in the shot instead of Murphy being picked out of a number of people walking on a street.
The barrister said that the date of the murder was also "writ large" on the CCTV footage viewed, but that "not one" of the identifying gardaí said they noticed the date of December 4th, 2012.
Mr Justice Birmingham asked "could someone give you the date of the Veronica Guerin murder or the Regency Hotel murder, for example? I find it hard to believe people hold that".
Responding, Dominic McGinn SC for the State said "the system is entirely transparent".
"If there were any shortcomings it was open and the defence did challenge that. The way it was done was abundantly clear," said Mr McGinn.
Mr McGinn said the gardaí involved were contacted without knowing what the matter was about "and neither did their sergeants".
"There was no indication at all regarding what the material related to and no clear flags on the footage as to what it might be about. The date was there, but the locations were not clear. It would be very difficult to isolate the [inner city] street as being distinguishable compared to other Dublin streets.
Mr McGinn said these gardaí had accessed Pulse regarding Murphy and the investigation "many months, sometimes years prior" to the 2018 identification.
Mr Justice Birmingham, sitting with Mr Justice Patrick McCarthy and Ms Justice Úna Ní Raifeartaigh, said the court would reserve its judgment in the matter.
