"If you know nothing about the killing, how can you say it was murder?" On Tuesday 9 April, as Patrick Quirke’s trial entered its 13th week and the prosecution case had closed, defence barrister Bernard Condon made an application in the absence of the jury to stop the trial and to have the judge direct the jury to find his client not guilty.
The withdrawal of a case from a jury at that stage should only be an exceptional measure in exceptional circumstances, he conceded, but this was an exceptional case. He argued that the absence of hard evidence against his client should render the case unsafe to be put before the jury for consideration.
"The essential matter in this case is what happened to Bobby Ryan ... and on that essential matter there is actually no evidence, good, bad or indifferent," he said. The prosecution’s case was based entirely on circumstantial evidence, but that evidence must be effective to eliminate all other possibilities consistent with the innocence of the accused, he said.
He said the circumstantial evidence was used early in the trial by the prosecution to establish motive. The relationship between Mary Lowry and Pat Quirke, the will, the farm lease, the reporting to Tusla, the missing passport, the dear Patricia letter, the CCTV.
Of itself, it did nothing more than establish merely that there is some interconnection of the personalities as opposed to anything of substance, he argued.
"It does not prove a killing, it merely proves that someone might want someone out of the way. It is quite a leap to say if someone has motive to continue a relationship that motive of itself is an intention to kill.
"The prosecution must prove that intention to kill. The prosecution must prove beyond a reasonable doubt that Pat Quirke killed Bobby Ryan and motive will not achieve this. Motive could be seen as a desire to reestablish a relationship but to take it a step further to say it is a desire to kill was an abuse of the English language," he argued.
Even if the prosecution was satisfied that it was a motive to kill, it moved them very little along the road to establishing that Bobby Ryan was killed by Pat Quirke. Large doses of speculation were going to be injected into the case because there was no hard evidence to support it, he said.
Mr Condon described a "chasm of evidence" in relation to 3 June 2011, the day Bobby Ryan went missing. The prosecution’s case was forensically barren in suggesting that something happened in three to ten minutes after Mr Ryan left Mary Lowry’s house. The pathology evidence was that if a weapon had been used there would have been profuse bleeding yet none was found.
Mr Ryan’s car was moved to Bansha Woods and was not driven by its owner because the seat had been adjusted, according to the prosecution. But who drove it? All of these things would lead to significant difficulties in terms of establishing what actually happened. How did he die? How did it come about? When was it? What was the process? There was a complete absence of evidence for all of this and for how Mr Ryan’s body was stripped naked and placed in the tank. It was all "utterly unsupported by one bit of evidence", he told the judge.
"Unless we can say there is a particular time at which a particular thing happened no inference can be drawn because you’re not comparing it against a fact and theories are not evidence," he said. Then there was the "astonishing and frightening fact" that gardaí did not until this year and when the trial had already started, test the fingerprints found on Mr Ryan’s van in 2011. Those tests excluded Pat Quirke right at the point where the van was essential to an analysis of what happened, Mr Condon said.
"It beggared belief to suggest that it could have been either an accidental car strike or an accidental object strike by a person unconnected to someone who knew about the tank."
In certain circumstances inferences can be drawn by a jury but in this case the only inferences available were all after the body had been found in 2013 and any attempt to shoehorn them back into 2011 would only establish speculation but would not establish killing with intent. There was no forensic evidence, no fingerprints, no eyewitnesses, no CCTV. It was a case of speculation based around events of 3 June. "If you know nothing about the killing, how can you say it was murder?", he asked.
The suggestion of a staged discovery of the body did not prove murder either, nor did computer searches about decomposition of remains. "Suspicion of knowledge of a body being hidden did not establish a body being hidden in these particular circumstances," he said, adding "a bit of suspicion at the end about computer searches does not establish evidence pre the disappearance of Bobby Ryan. We are talking about murder, we are talking about what happened on the 3rd of June 2011... none of it will establish anything other than suspicion but that is not enough. In the absence of evidence of killing, suspicion does not fix it".
In response, prosecuting counsel Michael Bowman say motive had been established in this case "in a multiplicity of ways". He said there was "an intimacy which he (Pat Quirke) yearned for after the relationship, financial assistance - love and money - possibly the two greatest motivating factors". In the Dear Patricia letter, the accused man had written that his love rival Bobby Ryan had promised Mary Lowry everything he could not.
At the outset of his submission, Mr Bowman had referred to case law on circumstantial evidence, reminding the court that "independent facts, each of them in itself insufficient to prove the main fact, may yet, either by their cumulative weight or still more by their connection of one with the other as links in a chain, prove the principal fact to be established". The question, he said, was whether it was open to the jury to reach the conclusions and the law required the judge to leave the decision to the jury. Even if a case contained weaknesses or was vague or contained significant inconsistencies as argued by the defence, it was for the jury to assess that, he said.
While the prosecution would have preferred a more complete forensic picture, there were circumstances where even when a body has not been found a jury can reach a verdict. Therefore, there was no bar to a jury reaching a conclusion in this case.
There were only a handful of people familiar with the underground tank and Pat Quirke had unlimited access to it, he said. It beggared belief to suggest that it could have been either an accidental car strike or an accidental object strike by a person unconnected to someone who knew about the tank, he said. The internet searches on decomposition communicated a "curiosity not easily explained away".
It was beyond a coincidence that the searches took place on 3 December 2012 - the same day Quirke had been caught on CCTV around Mary Lowry’s home - an event that led to her telling him she wanted him off the land.
"The clock was ticking and it is an affront to common sense to say these events were unrelated. The staged discovery of the body happened because Pat Quirke’s position on the farm was compromised, time was ticking down and his options were limited so he made a decision to return the remains of Bobby Ryan. This was a violent death which had been concealed and the evidence surrounding it was quintessentially a matter for the jury to parse and analyse," he said.
In her ruling, Ms Justice Eileen Creedon said there were two categories under which a judge should direct an acquittal - where there's no evidence that the crime alleged was committed by the defendant, or where the prosecution evidence, taken at its height, is so tenuous that a jury properly directed, could not properly convict. She said where the strength or weakness of evidence depends on the reliability of the witnesses, or the jury's view of the witnesses, and where on one view of the facts, the jury could convict, then the case should go to the jury.
Ms Justice Creedon said she had considered all of the evidence put before the jury and the manner in which it was contended for by both sides. Taken at its highest, and including the defence evidence of Michael Curtis, the state of the evidence was not such that there was no evidence, nor was it so infirm that a jury properly directed could not properly convict. She said it was open to the jury to reach the inference contended for by the prosecution. The judge also ruled that Mr Quirke's right to a fair trial had been maintained. She declined the application from the defence and allowed the matter to go to the jury.
