The Supreme Court has been asked to direct a retrial for Co Tipperary farmer Patrick Quirke on a charge of the murder of Bobby Ryan, a DJ known as Mr Moonlight.
The application was made by Bernard Condon SC, for Quirke, following the court’s finding that a computer seized by gardai from Quirke’s home was unlawfully searched.
However, Sean Guerin SC, for the DPP, argued that the Supreme Court has jurisdiction to decide, at this stage, and should so decide, that the evidence obtained from that search was still admissible at Quirke’s trial.
After some two hours of submissions on Tuesday, the Chief Justice, Mr Justice Donal O’Donnell, said the seven-judge court will rule later on what should happen next following its judgment last March on Quirke’s appeal against his conviction for the 2011 murder of his alleged love rival, Mr Ryan.
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Quirke (53) was arrested after Mr Ryan’s badly decomposed remains were found in a disused underground tank on a farm at Fawnagowan owned by Mary Lowry on April 30th, 2013, almost two years after he went missing.
Mr Ryan had been in a relationship with Ms Lowry and was last seen alive as he left her home early on June 3rd, 2011.
It was contended Quirke had staged the discovery of the body as he was about to give up his lease on the farm and feared he would be found out. Quirke, it was claimed, had murdered Mr Ryan so he could rekindle an affair with Ms Lowry.
Quirke denied the murder but was convicted by a majority jury verdict in 2019 after a 13 week trial. He secured a further appeal against conviction to the Supreme Court after losing an appeal to the Court of Appeal.
In a perceived significant win for his bid to have his conviction quashed, the Supreme Court ruled in March that gardai unlawfully searched the content of a computer seized from his home.
The computer, his trial heard, was used for internet searches on the rate of decomposition of human remains and the limitations of forensic DNA.
The Supreme Court ruled, while the search of Quirke’s home and the seizure of various items was valid, the computer search was unlawful.
Because a computer’s use as a portal into the digital world means searching its contents involved a more significant intrusion into privacy rights, gardai needed to set out why such a search might be reasonably needed in their sworn information seeking the search warrant and any such search must be judicially authorised after the necessary rights balancing exercise is carried out by the judge.
That had not happened in this case, it said.
Issues for decision arising from its judgment include whether the Supreme Court has jurisdiction to itself analyse, having balanced Quirke’s right to privacy against competing rights, whether the search of the device was justified and the evidence obtained is admissible.
On Tuesday, Mr Guerin, with Michael Bowman SC, for the DPP, argued the court can and should carry out that balancing exercise and he rejected arguments by the defence that an appellate court cannot do so.
The net issue is whether a District Judge would have issued a warrant for the electronic devices had the Garda sworn information specified a reasonable need for the seizure of such devices, he said.
He disagreed with the defence submission the core issue is whether the unlawfully obtained evidence would have been admitted into evidence at the trial. The issue is the consequences of the Garda error in this case, he said.
The Garda entry into the premises was not unlawful as gardai had a lawful warrant for such entry but the error was to fail to identify the possible existence of a computer device and intention to seize and search that, he said.
If that was done, there would have to be a justification offered for the seizure and search and there was justification for seeking and searching the device, including to seek support or confirmation for evidence concerning Quirke’s movements.
The court is entitled to conclude that no District Judge presented with an application for a search warrant for a computer for that purpose alone would have refused it.
Mr Condon, with Lorcan Staines SC, for Quirke, said what happened in relation to the computer search was an unconstitutionality and not an illegality.
The evidence was that gardai had accepted they had directed their minds to whether they should reference computers in the sworn information, he said.
It is not that unusual to say computers are relevant and what is at issue in this matter is not substantial new law but rather a duty of candour, he submitted.
His client is entitled to an inquiry by a trial judge - known as a JC inquiry - into whether evidence obtained unconstitutionally may be admissible in certain circumstances, counsel submitted.
In reply, Mr Guerin said the duty of candour is a “dead end” in relation to how the court should progress the matter.
There was no non-disclosure by the gardai and the application for the computer evidence was not made at all, he said. There was no evidence available to the gardai that would have tended to suggest any application to search the computers would have been refused.
Quirke would not be disadvantaged by the Supreme Court itself carrying out the JC inquiry, counsel submitted.
