The alleged failure of a convicted Kildare murderer's legal team to challenge disputed evidence at trial is "unexplained", his lawyers have told the Court of Appeal.
The Court of Appeal on Wednesday reserved judgement in the case of James Lammon, who was convicted of a "brutal and pre-meditated" gun murder and claims he did not give permission for his lawyers to allow a garda's evidence against him to go unchallenged.
In October 2016, James Lammon (48) was convicted by a jury at the Central Criminal Court of the murder of Jason Doogue in the Green Hills area of Athy, Co Kildare, on August 21, 2015. Lammon, of Cardington Way, Athy, had been found guilty by unanimous verdict of the "brutal and pre-meditated" murder.
The jury found that he was the masked and hooded gunman who cycled up to the garden where Mr Doogue was hanging out with friends and shot him three times before cycling away.
Lammon is appealing his conviction, for which he received life imprisonment, on the grounds that his counsel failed to challenge a disputed statement attributed to him at his trial.
The trial had heard from a Garda Daniel O'Shea, who said that he made a memo of a conversation he had with the appellant while they were in a Garda Station exercise yard after his arrest. Lammon has denied that the conversation ever happened.
At the trial, a deal was arranged between the prosecution and the defence to allow only segments of Gda O'Shea's memo to be admitted into evidence, which Lammon says he was not consulted about.
Gda O'Shea told the trial that Lammon told him: "They'll never get a charge on me; they have nothing, only stupid statements from Athy. They have a lad fully covered on a bike, my height and size, and they think that will stick."
Gda O'Shea also told the trial that Lammon had told him that the bullet was meant for another man, Jamie Quinn.
On Wednesday, Mr Richard Greene QC, for the appellant, said that his client had objected to the evidence of Gda O'Shea and denied that the conversation in the exercise yard ever happened.
In his submission, Mr Greene said that the question before the Court of Appeal was whether or not clear instruction was followed by Lammon's legal team.
Mr Greene said that the appeal was not about incompetency, or otherwise, of the legal team, which was composed of two counsel and a solicitor.
Counsel said that discussions by Lammon's legal team had "bypassed" his client and that their trial strategy did not support that Lammon had changed his mind and then instructed his legal team to allow excerpts of Gda O'Shea's memo.
"There was no authority given by him [Lammon] to arrive at this proposal," said Mr Greene, who added that Lammon's opposition to the conversation had been previously recorded in August 2015.
"Why on earth would he give his consent and perform this dramatic volte face?" he said.
Mr Greene said there would have to be a tactical reason for Lammon to change his mind at the last minute as the evidence of Gda O'Shea "was only capable of harming the appellant, and was absent of logic or benefit".
Counsel said that it seemed "extremely naive to accept the damaging comment" of the bullet being meant for Jamie Quinn, adding that the failure to challenge it was "unexplained".
Mr Greene said that the absence of any notes by Lammon's legal team about him allowing the excerpts of Gda O'Shea's memo was "startling", as any change of position should have been recorded.
Counsel said that the comment regarding the bullet being meant for someone else was "massive" in the trial.
"He [Lammon] had absolutely nothing to alert him as to what was to come," said counsel.
Responding, Mr Kerida Naidoo SC, for the State, said that Lammon had twice changed his legal team and that in earlier papers there had been "no suggestion anywhere that he didn't know what was going on" and that "he doesn't say his previous team failed to follow instruction".
Mr Naidoo said that Lammon's claim was a "bare assertion".
Counsel said that the memo was not the most important aspect of Lammon's case, which also featured DNA and firearm residue evidence.
Mr Naidoo said that Lammon had also been identified as the man who took the bike - identified as Lammon's nephew's - used in the murder out of the back of a nearby van.
"Other evidence unanswerably pointed to James Lammon being the murderer," said counsel, who added that the conviction was "safe".
Mr Naidoo said that Lammon's claim that he did not understand what occurred and did not instruct his team did not surface "until his third set of solicitors" and was "not credible".
Regarding the deal struck by Lammon's team and the prosecution, Mr Naidoo said that it was "much less damaging [to Lammon] than the full version of the memo" and that there were "good tactical reasons" behind the agreement.
On Wednesday, presiding judge Mr Justice George Birmingham said that the three-judge court would reserve judgement and decide on the matter as soon as possible.
At a previous Court of Appeal hearing where he gave evidence to the court, Lammon told Mr Naidoo that when the "alleged comments went unchallenged, I immediately raised it with counsel".
Mr Lammon said that counsel told him that "she did not want to call Garda O'Shea a liar".
"I was told they would not see the light of day and that they would be challenged on admissibility," Lammon said.
Mr Naidoo said that on the day of the Garda O'Shea evidence the trial had started late so that Lammon's legal team could specifically take his instructions, which was denied by the appellant.
Mr Naidoo said that the idea that his legal team would not consult with him was "improbable towards impossible".
Lammon said that the conversation in the exercise yard "never happened", that it was a "fabrication", and that the conversation was about "food and showers, and things like that".
Mr Naidoo said that the statements attributed to Lammon would not amount to an admission. "It would in my eyes," responded Lammon.
Lammon told his own counsel, Mr Richard Greene QC, that the first he was aware of the garda giving evidence was "when he [Gda O'Shea] walked into court".
Mr David Gibbons, a solicitor of over 30 years, told Mr Greene that Lammon had selected him by phoning him after his arrest.
Mr Gibbons said the legal advice his team had given Lammon was that the comments would be challenged "but that it was not expected that the challenge would be successful".
The lawyer said that the prosecution approached the defence with a deal on excerpts from Garda O'Shea's statement being put into evidence, who made Lammon aware of it in consultation and said that he should consider it.
"I said he should consider it very carefully but did not say it was a good deal, nor did I take away the decision from him [Lammon], and there was no lack of clarity" said Mr Gibbons.
Mr Greene put it to Mr Gibbons that he had no conversation about Gda O'Shea's evidence with his client and was told: "That's wrong."
At the trial, Mr Doogue's sister, Stephanie, took the stand and told the court that Jason was the "best brother in the world" and a "loving uncle and best friend". She said he "took a very big part of all of us with him" when he died and would forever be in the thoughts of his family and friends.
Those who knew Jason would pass on his memory to the younger generation of the family, "because they will never have a chance to know him" she said, adding that he had many goals, but all opportunity was taken from him.
Trial judge Mr Justice Paul Butler described the killing as "brutal and pre-meditated" and said "there is only one sentence" before handing down the mandatory life sentence. He backdated it to when Lammon went into custody on August 21, 2015.
Subscribe or register today to discover more from DonegalLive.ie
Buy the e-paper of the Donegal Democrat, Donegal People's Press, Donegal Post and Inish Times here for instant access to Donegal's premier news titles.
Keep up with the latest news from Donegal with our daily newsletter featuring the most important stories of the day delivered to your inbox every evening at 5pm.