Appeal of murder conviction on the ground that appellant’s instructions were not followed by his lawyers at trial is dismissed

Criminal Law – appellant convicted of murder following a twelve-day trial – appellant indicated that he wished to abandon the grounds of appeal originally lodged – instead the appellant seeks leave to argue a new ground of appeal which is that his instructions were not followed by his lawyers at trial – in the course of the appeal hearing, the appellant and his former solicitor were each cross-examined on their affidavits – resolution of this appeal involves a determination on a disputed issue of fact – victim was sitting on a wall – a cyclist came to the scene and shot the victim three times – eyewitness gave evidence that the build of the cyclist matched that of the appellant, who was very well known to him – eyewitness gave evidence that the gunman had been cycling on a bicycle which belonged to the appellant’s nephew – another eyewitness gave evidence that he was 100 percent sure that the cyclist was the appellant – appellant was arrested and detained for 7 days – he was interviewed on numerous occasions but for the most part chose not to answer – however, appellant did on occasion put on record a denial of any involvement in the shooting – appellant, whilst in the yard, had a conversation with a garda – alleged that the appellant had made certain incriminating comments – appellant had consultations which his solicitor and alleges that the conversation he had with the gardai during his detention would never see the light of day – solicitor denied saying anything of the sort – advice on proofs was prepared by senior counsel for the appellant and was made available to the appellant – appellant’s case is that the edited extracts from the memorandum in relation to the incriminating comments which were put before the jury, with agreement of the defence team, in fact took place without his authority and was contrary to this instructions – there is a conflict as to what occurred when the Court rose following day seven of the trial – prosecution counsel indicated that an agreement had been reached and that a substantial voir dire had been envisaged but was no longer necessary as an agreement had been reached – tone and content of what appellant said in memorandum is consistent with approach taken by appellant in other communications – there was no discussion on the morning of day eight of the trial about agreeing to admit the evidence of Garda O’Shea in a modified and edited form – there was never any guarantee that if there was a voir dire to challenge the record of the conversation, that the evidence would be excluded – had the appellant lost, the memorandum might have been admitted in its entirety – version of events to which former solicitor swore represents what actually happened – appeal dismissed.