The forensic evidence given to the jury in the infamous Maguire Seven case was more compelling than the evidence used against a Dublin man accused of a gang murder, said a defence barrister at the Central Criminal Court.
Gary Flynn (aged 31), of Rossfield Drive in Tallaght, has pleaded not guilty to the murder of Seamus 'Shay" O'Byrne at Tymon Park North in Tallaght on March 13, 2009.
During his summary of the trial's evidence defence counsel Giollaíosa Ó'Lideadha SC told the judge and jury that gunshot residue found on the cuffs of Mr Flynn's hoodie when he was arrested hours after the shooting did not prove he was involved.
He said the evidence of Dr Thomas Hannigan of the Forensic Science Laboratory was that it is possible for gunshot residue to transfer from one person to another.
He said that the residue on Mr Flynn's cuffs could have come from people involved in the killing, who transferred it to Mr Flynn when they met up afterwards.
Referring to the Maguire 7, who were convicted due to nitro-glycerin found on their hands, he added that at least the prosecution in that case had an expert witness, who although he may have been lying, was willing to say that the presence of nitro-glycerin meant they must have handled explosives.
He said that in this case the prosecution's own witness, Dr Hannigan, had said that innocent transfer of gunshot residue is possible.
He also pointed out that Dr Hannigan had said that car brake pads can create the same residue given off when a gun is fired.
Going through the State's case in the trial Mr O'Lideadha said each of the pieces of evidence could rationally be rejected by the jury.
Part of the state's case, as explained by prosecuting counsel Alex Owens SC in his summary last Friday, is that Mr Flynn bought a top-up for a phone that has been linked to the alleged murder gang.
Mr Flynn was seen on CCTV buying the top-up at a Topaz garage on the Fortfield Road in Dublin less than two hours before the shooting.
Mr Owens said that Mr Flynn then got into a Primera car at the Topaz garage and travelled with the alleged gang to murder Mr O'Byrne.
Mr Flynn was caught on CCTV again at Leisureplex in Coolock 30 minutes after the shooting with Eugene Cullen, who has already been convicted of murder in relation to Mr O'Byrne's death.
Mr Ó'Lideadha said the CCTV does not show Mr Flynn getting into the Primera at the Topaz garage.
He said the jury must consider that he could have bought the top-up, handed it to Mr Cullen in the waiting Primera, and then made his own way to Coolock.
He added: "Gary Flynn was friends with Eugene Cullen and was with him before and after, but there is no evidence that he knew anything about the murder or that he participated in the murder."
Garrett O'Brien, who has been named in court as the man who shot Mr O'Byrne, has also been previously convicted.
Mr Ó'Lideadha said it is possible that Mr O'Brien, having shot Mr O'Byrne, then met with Eugene Cullen who met up with Gary Flynn 30 minutes later at Leisureplex in Coolock and transferred gun residue to him.
"Does that alternative scenario give rise to a finding that is irrational?" he asked the jury.
Justice Patrick McCarthy began his charge to the jury, saying that they must act as judges of the facts in the case.
He told them that the onus is on the prosecution to prove their case beyond a reasonable doubt and that there is no onus on the accused to prove anything.
Justice McCarthy will continue his charge to the jury of eight men and three women on Thursday.
One of the jurors was discharged because he is unable to sit through the rest of the trial.
