The Supreme Court yesterday quashed the conviction and 12-year sentence imposed four years ago on a man who was found guilty of assaulting and robbing a milkman in his home in April 1999.
Michael Tyndall (46), a father of three from Dún Laoghaire, was jailed for 12 years, and Derek O'Toole (43), a former Dún Laoghaire Corporation employee from Shankill, received a nine-year sentence when convicted in March 2001 by Dublin Circuit Criminal Court of assaulting and robbing James Mahon at his home at Clifton Park, Shankill, Co Dublin, on April 9th, 1999.
Mr Mahon was stabbed when, it was alleged, two men entered his home, one armed with a knife and a gun and the other with a baseball-type bat. About £450 was taken by the intruders.
Both men appealed against their convictions to the Court of Criminal Appeal. In May 2003 the appeal court directed a retrial for Mr O'Toole on the basis that his trial had been unsatisfactory. The court dismissed Tyndall's appeal, holding that his arrest had been valid.
However, the appeal court certified that its refusal involved a point of law of exceptional public importance concerning requirements to prove an arrest where the State was put on notice that the arrest was being challenged.
Mr Justice Hugh Geoghegan, giving the judgment of the Supreme Court yesterday on that question of public importance, said the arrest was made under Section 30 of the Offences against the State Act, 1939. The clear words of that section required that the arresting garda had to have a suspicion.
Evidence of that suspicion could be either by direct evidence or indirect evidence. There was no such evidence in this case. He allowed the appeal, set aside the order of the appeal court, and quashed the conviction and sentence imposed by the Circuit Court.
Mr Justice Geoghegan said Mr Mahon had been at home with his family.Two men entered the house, one with a baseball bat and the other with a knife and gun. Mr Mahon was stabbed and badly injured. The prosecution case was that Mr Tyndall was the man with the knife and gun.
The judge said Section 30 required that the arresting garda have a suspicion as set out in the section. This was an essential condition precedent to arrest.
The section did not indicate that the suspicion had to be proved in any special manner. There was no such direct evidence in this case.
Suspicion was not defined in the 1939 Act but it was a fact, said Mr Justice Geoghegan, that it had to be proved by direct evidence or inferred from circumstances. It was an essential proof. The circumstances of this case were not such as to enable a court to infer the suspicion.