The actions of one of the men accused of abducting and torturing Kevin Lunney are "very suspicious" but do not lead to the inevitable conclusion he was one of the men who bundled the businessman into the back of an Audi, beat him at a yard and dumped him on the side of a road, a defence barrister has told the Special Criminal Court.
Michael O'Higgins SC addressed the three-judge, non-jury court on Wednesday on behalf of the accused known as YZ, who can't be named for legal reasons. Mr O'Higgins warned the court to avoid coming to a conclusion that might appear logical based on suspicion but that falls short of the required level of proof.
Counsel for Alan O'Brien said his client has no case to answer as the prosecution has not proven he was in Cavan on the day of the offences against Mr Lunney.
Counsel for Darren Redmond said the prosecution had "overreached". He challenged the identification of his client on CCTV and said mobile phone location data the prosecution said showed his client traveling to Cavan on the day of the offences had actually shown "nothing other than the presence of a telephone possibly within a vehicle".
Counsel for Luke O'Reilly will deliver his closing speech on Friday.
YZ, 40, 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 O'Higgins said his client's actions were suspicious and added: "I do concede that the circumstances are suspicious."
But, he said, the circumstantial evidence pointed to by the prosecution should not lead the court to "inexorably conclude that the only reasonable interpretation is" that the men responsible are his client and two other men who were traveling in a Kangoo van in Cavan on the same day.
Counsel also said the court should consider whether the prosecution has excluded the possibility that Mr Lunney's DNA was planted inside the Renault Kangoo, which was subsequently destroyed by a fire at a storage yard in Cavan in February 2020.
Mr O'Higgins said the court appeared to have taken the view during legal argument in the trial that unless there was footage of a man in dark clothing planting evidence, the defence shouldn't even pursue it.
Mr O'Higgins said the first question the court should ask is, "is there a smell off this?" and to consider if his client was as forensically aware as the prosecution has suggested, why would he not have made sure the van was wiped clean?
Gardaí, he said, had given contradictory evidence about whether the van was locked or unlocked when they seized it on October 23, 2019.
Gardaí took the van to the forensic examination unit in Santry, where no record of who comes and goes is kept and where there was evidence that a member of the National Surveillance Unit accessed the van on October 23, but no record of that access was logged.
The van was examined on October 29 by Detective Garda Ursula Cummins and fingerprint expert Detective Garda Ernie Frazer, counsel said. They did not see an area of brownish red marking, even though Det Gda Frazer was specifically looking for blood stains because they are good receptors for finger prints.
Dr Edward Connolly examined the van two days later using a chemical agent called luminol, that lights up when it comes into contact with blood. The test required him to turn off all lights but when he got a positive reaction for blood and turned the lights on, he was able to see the stains with the naked eye.
Mr O'Higgins said the prosecution had taken the view that the defence submissions on this topic were frivolous and not worthy of response.
But, he said, the court has to look at all the circumstances, adding: "It is absolutely nothing to do with the defence proving that anything was planted. That’s not what this is about. The prosecution must exclude it as a reasonable possibility."
He said in the light of the points raised by the defence, "We are just not sure how this got there and when."
The prosecution has said that an e-flow motorway toll tag from the Audi that was used in the abduction was found in YZ's apartment.
Mr O'Higgins said Cyril McGuinness, now deceased and alleged to have been the organiser of the abduction, was present when the Audi was purchased and he imported the Kangoo from the United Kingdom.
It is possible, counsel said, that McGuinness or Alan O'Brien transferred the tag to the Kangoo or that YZ removed it from the Audi.
Counsel added: "They are all possibilities. There is, in my submission, not a shred of evidence in the case to support any of the three propositions."
There was, he said, no inference that could be drawn to prefer any one over the others, "never mind to actually pick one and exclude all the other possibilities as reasonable possibilities".
He asked how a man as forensically aware as YZ would allow an electronic tag that connects him to those two vehicles to remain in his kitchen until gardaí arrived with a search warrant. The only safe inference to draw, he said, is that YZ was completely unaware that the tag had any potential to incriminate him.
Mr O'Higgins said his client knew McGuinness for many years and mobile phone cell site traffic analysis suggests it was not unusual for YZ to be in or about the border area.
Out of his relationship with McGuinness, counsel said his client is probably "privy to lots of things in Mr McGuinness's activities which others would not be." But there is no guilt by association, counsel said.
Mr O'Higgins said the prosecution had taken a "myopic view" of the evidence and even though they acknowledged there were more people involved than are before the court, they had allocated roles to each of the accused, giving the lead parts to those allegedly in the Kangoo.
If the court doesn't know how many were involved, Mr O'Higgins asked, what basis is there for these three being given the lead roles?
Mr O'Higgins said counsel for the prosecution, Sean Guerin SC, had said that during the abduction there was a lull in the assault on Mr Lunney when YZ rang Cyril McGuinness looking for bleach, prompting McGuinness to call Luke O'Reilly to tell him to get bleach.
Mr Guerin, counsel said, had put this forward as having been proved beyond reasonable doubt. He added: "What are undoubtedly suspicious interactions are being converted by the prosecution into matters of fact. The court has to stress test that. Is the court satisfied that it can reconstruct telephone conversations without any record of those calls?"
He added: "There is no evidence as to what was said in those calls, no party has given evidence of what was said, there is no recording of what was said in those calls and the nature of the surrounding evidence is not enough for you to infer what was said."
While Mr Lunney was in the boot of the Audi he overheard the driver on the phone saying: "Boss, this man resisted and we had to hit him."
Mr O'Higgins said this call does not show up on his client's records and there is no record of McGuinness receiving a call at the relevant time. The suggestion seems to be, counsel said, that a burner phone was used.
Yet, Mr O'Higgins said, the prosecution then alleges that YZ used his own phone shortly afterwards in an "act of unbelievable sloppiness" to call McGuinness to ask for bleach and McGuinness commits an equal act of sloppiness in calling Mr O'Reilly from his own phone.
Giollaíosa Ó Lideadha SC for Alan O'Brien told the court the prosecution had made assertions of fact that were not based on the evidence. He said the prosecution couldn't prove his client left Dublin on September 17, 2019. There was "no rational, logical basis", he said, for the prosecution's assertion that because Mr O'Brien travelled in the Kangoo on the 16th, he must have been in it on the 17th.
There is no telephone link between Mr O'Brien and phones associated with McGuinness, counsel said, adding: "He has nothing to do with my client."
Counsel also challenged the prosecution's claim that a passenger seen in the Kangoo on the 17th was wearing the same clothes as Mr O'Brien was seen wearing earlier when he met YZ and a man identified as Mr Redmond at a car park in Dublin 3.
Regarding the DNA evidence in the van, Mr Ó Lideadha said the prosecution had ignored Dr Connolly's evidence that he would expect a forensic examiner to see the area of suspected blood staining. He also pointed out that the scientist had not carried out a test to confirm the stains were blood but only carried out tests that indicated it was blood. Further testing, he said, could have proved whether it was, in fact, Mr Lunney's blood.
He said the onus was on the prosecution to prove the stains were there on the 29th, that they were in fact blood and that the blood belonged to Mr Lunney.
He added: "We have established a reasonable basis for concluding the stain was not there on the 29th, the prosecution has the onus to prove it was there and they can't do it because they don't know who had access to the van and they don't know because they didn't take the minimal reasonable step of logging who had access."
Mr Ó Lideadha said his client has no case to answer given the prosecution can't prove he left Dublin on the 17th. The prosecution, he said, had made an assertion that Mr O'Brien must have been in the Kangoo because he was seen with YZ and Mr Redmond entering the car park shortly before the Kangoo left.
The prosecution had argued that the only way for the three men to leave the car park was in the Kangoo. Mr Ó Lideadha pointed out that there is a wall at one part of the car park that can easily be jumped over.
There is also, he said, a corridor leading into the apartment block and a number of apartments that can be accessed from the car park. He could also have left later in another vehicle, counsel said.
There is no proof, he said, that his client got into the Kangoo. He said there was no evidence that Mr O'Brien was involved in preparing for the abduction on the 16th and no evidence that he had formed an agreement with others to carry out any offences.
Mr O'Lideadha invited the court to come to the conclusion that, as jurors, they could not conclude guilt beyond reasonable doubt.
Michael Bowman SC, counsel for Darren Redmond, said the prosecution had "overreached considerably" using speculation and innuendo. He said the prosecution had asserted his client's presence on the 17th through identification evidence at the car park in Dublin and mobile phone location data.
Mr Bowman said the garda who identified his client had only met him once. Mr Bowman said the mobile phone location data used by the prosecution proved "nothing other than the presence of a telephone possibly within a vehicle".
He said there is evidence the phone was "static" for a period of one hour when the prosecution alleges Mr Redmond was travelling to Cavan. Mr Redmond's DNA was found on a bar behind the driver's seat in the Kangoo van. Mr Guerin said in his closing speech that this was "entirely consistent with what you would expect if he was hanging onto those bars to make himself comfortable on the journey back to Dublin".
Mr Bowman described Mr Guerin's comments as "extraordinary" and not backed by the evidence of Dr Connolly, who said he could not say when or how the DNA was deposited. The prosecution theory, Mr Bowman said, "has to be disregarded in its entirety".
He reminded the court that the van was observed by gardaí unlocked within a couple of hundred metres of Mr Redmond's home on several occasions after Mr Lunney's abduction. Counsel cautioned the court against abandoning the presumption of innocence and said the prosecution case that Mr Redmond got Mr Lunney's blood on his hands when pushing him onto the side of a country road "makes no sense" and "is not evidentially sustained in any way, shape or form."
The only verdict available, counsel said, is a verdict of not guilty.
Michael Lynn SC for Luke O'Reilly will deliver his closing arguments on Friday to Mr Justice Tony Hunt, presiding, with Judge Gerard Griffin and Judge David McHugh