Gang member only heard of change to Lordship getaway car conspiracy charge after he was convicted of it, appeal hears

The first time a cross-border gang member heard there had been a change to the charge against him of conspiring to steal the getaway car used in the credit union robbery during which Detective Garda Adrian Donohoe was shot dead was after he had been convicted, his barrister has told the Court of Appeal.

James Flynn, with an address in Ravensglen, Newry, Co Down, was acquitted of taking part in the robbery of Lordship Credit Union in Bellurgan, Co Louth, on 25 January 2013.

However, the Special Criminal court found the 32-year-old guilty of conspiring with Aaron Brady to steal a car that was used in the robbery. It was during that robbery that Brady murdered Det Gda Adrian Donohoe by shooting him once in the head. Brady is serving a life sentence with a minimum of 40 years for the offence.

When delivering its verdict, the court amended the indictment against Flynn and found him guilty of conspiring to steal the Volkswagen Passat, which was taken in a burglary from a property in Clogherhead, Co Louth in January 2013 and later used in the robbery.

At the Court of Appeal on Thursday, Bernard Condon SC, for Flynn, argued that the trial judge erred by making that amendment after the trial had finished and while the court was acting in its capacity as a jury. He said the defence was not offered an opportunity to argue about the wording of the amendment or as to whether it was appropriate.

Counsel said the indictment originally spanned a period between September 2012 and February 2013 when his client was accused of “being in cahoots with Aaron Brady to commit creeper burglaries”. This was then narrowed to January 22nd to 23rd, 2013, he said. “They also change the location, and they also change the person,” he added.  

Mr Condon said there had always been an issue with the conspiracy indictment extending back to September 2012, when his client had been residing in the United States until October or November that year. He said that when the Special Criminal Court amended the indictment, his client was convicted of a charge which was “never put to him” and on which he was “never given the opportunity to plead”.

“At the level of fundamental fairness, it’s baffling to us why the court didn’t come out and say: ‘We’ve reached an impasse,’” he said. “The first we heard that this offence was out there was after we had been convicted of it,” he added. Mr Condon also questioned the evidence given by prosecution witness Andy Wooller, who claimed to identify Flynn's car driving up and down the street in Clogherhead when the Volkswagen Passat was stolen.

Mr Condon said Mr Wooller had described himself as having invented or helped to develop the "science of forensic vehicle identification". Mr Condon said forensic vehicle identification is "not a science and he is not a scientist". Counsel described the methodology used by Mr Wooller as "ludicrous", adding that it is not subject to any regulation or peer review and has never been tested in the academic world.

Mr Wooller, counsel said, took 22 years to achieve a degree in science and did not have that degree at the time when he was engaged in identifying vehicles for gardai. Mr Condon described Mr Wooller's evidence as partial and a "ball of smoke" and suggested Mr Wooller should not have been permitted to give evidence in a serious trial.

Mr Condon called on the Court of Appeal to set aside the conviction on the basis that the Special Criminal Court was influenced by a witness who is not an expert. Counsel further submitted that the court had made findings of fact that were unsupported by the evidence or did not meet the standard of beyond a reasonable doubt.

Prosecution counsel Lorcan Staines SC countered that the court could “go much further than Mr Wooller” in identifying the car because they “have more information than Mr Wooller”. He said the appellant had constructed a “classical strawman argument” and that Mr Wooller had not been admitted by the Special Criminal Court as an expert witness, but instead admitted his evidence on the basis that its weight would be determined later. 

“There’s no discretion in that regard. One is either an expert or one is not,” Mr Justice Edwards said.

Amendment to indictment

During exchanges with Mr Staines, Mr Justice John Edwards said he is "concerned" about the decision to amend the indictment without a hearing. He said the defence did not get a chance to make their arguments. "It's constitutional law 101," he said, that "you have to be able to answer the case against you. If it is proposed to move the goalposts, you are entitled to have your say and that didn't happen."

Mr Justice Edwards said the amendments to the indictment were in favour of Flynn as they narrowed the scope of his conviction. Counsel asked the court to consider what possible arguments could have been made by the defence that would have resulted in a better outcome for Flynn.

Mr Staines also argued that the amendment had been unnecessary.

After thanking the parties for their submissions, Mr Justice Edwards told the parties the court would be reserving its judgment and adjourned the matter.

In the Special Criminal Court's judgement, Mr Justice Tony Hunt said the evidence established beyond a reasonable doubt that Flynn was an active member of the gang that carried out the robbery and that he was intimately involved with Brady and another man involved in the theft of the getaway car.

However, the court found the evidence in relation to the robbery at Lordship did not prove the prosecution case that Flynn was one of the men directly involved.

Sentencing Flynn to eight years imprisonment in December 2023, Mr Justice Hunt said that at the time when Flynn conspired to steal the Volkswagen Passat he "knew the full purpose of the conspiracy to burgle" and that the conspiracy "encompassed an integral aspect of the robbery" which took place three nights later.

He said that the burglary was carried out by an "organised criminal group" and was "part and parcel of the larger picture" involving the credit union robbery which was "in the minds of those who participated in the conspiracy to burgle".