A MAN WHO was sentenced to three years in prison in relation to an assault in a south Dublin bookmakers, and who has always maintained his innocence, has had his conviction quashed at the Court of Appeal.
Today’s hearing before the three-judge court was something of a formality, with Justice George Birmingham overruling the original conviction and not requiring defence counsel for 28-year-old Dublin man Declan Tynan, Michael O’Higgins SC, to open an affidavit seeking that judgement.
Counsel for the Director of Public Prosecutions (DPP), Michael Delaney SC, neither objected to the quashing of Tynan’s conviction, nor requested a retrial. However, he did say that the DPP would not be “making any concession as to the factual basis” of the defence’s affidavits.
In response, O’Higgins said the prosecution “is at liberty to argue whatever he thinks is appropriate”.
“I’m not making any concessions either,” he added.
With the order quashing the conviction and declaring it to be unsafe, Tynan is now a free man. He had been on bail since last October when he was released from Mountjoy Prison.
Prior to October, he had been in prison for 11 months.
His defence will now most likely launch an application to have the conviction declared a miscarriage of justice.
Miscarriage of justice
As such, O’Higgins requested of the appeal judges that their order to quash should “formally declare a miscarriage of justice as something my client will wish to pursue”.
Delaney replied to this saying that the order to quash showed “merely that there may have been a miscarriage of justice, not that there was”.
“I don’t think any such decoration at this stage is appropriate,” said Birmingham. “We make this order very much in the knowledge that there may be another day.”
Should a miscarriage of justice be declared, Tynan would be in a position to sue the State with regard to his wrongful conviction.
Declan Tynan was first sentenced to four years in prison, with the last year suspended, in January 2017 for allegedly taking part in a fight involving weapons at a Ladbrokes bookmakers in Killinarden, Tallaght, on 13 December 2012.
Five men took part in that incident, which saw a man and his brother stabbed with a short blade. Investigating gardaí determined that Tynan was one of the three assailants after a Garda based at Kevin Street Garda Station, who was not involved with the investigation, identified him positively from CCTV footage of the incident.
The conviction of violent disorder was arrived at based solely on the evidence of that Garda, as the two victims of the assault declined to cooperate with gardaí.
The charge of violent disorder does not require a victim in order to secure a conviction. There was no witness to the fight who could positively identify Tynan.
Two of Tynan’s fellow accused, Jamie Griffin and Sean Kenny who were also identified by the Garda, subsequently pleaded guilty to affray and received sentences. Tynan, meanwhile, having pleaded not guilty, was convicted by the majority of an 11-person jury.
Third assailant
Last September, a 30-year-old man came forward and swore an affidavit that it was he, and not Tynan, who had been the third assailant in the bookmakers, having first alerted Tynan’s family to that fact when he became aware that the other man was in prison for the crime.
The DPP has never contradicted that affidavit.
In a statement forwarded separately to the DPP, the same man declared that he had heard that a father of two children, Tynan, was serving time in Mountjoy for a crime that he had in fact committed, and that he couldn’t deal with the guilt associated with that fact.
Tynan had maintained his innocence from when the initial charges were brought and throughout the trial, further asserting in the aftermath of his conviction that he had not even been present in the betting shop at the time of the assault.
Following his initial sentencing, he applied to the Court of Appeal for a review of his conviction.
Key to that appeal had been Tynan’s assertion that, given his conviction relied solely on his identification from CCTV footage by one Garda, who was not connected to the investigation, the process by which that conviction was arrived at was unsafe.
The appeal was dismissed in July 2017 by a three-judge panel, who found no grounds to doubt the process which led to Tynan’s identification, nor to question the fact that the prosecution declined to disclose prior entries on the Garda PULSE system regarding Tynan due to their containing “privileged material”.
Last October, roughly four weeks after the swearing of the new affidavit, indicating it was the other man who had actually committed the crime, Tynan was released on bail.
He had spent a total of 11 months in custody, first in Cloverhill remand prison following his conviction in December 2016, and subsequently in Mountjoy following his sentencing in January 2017.
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