A Filling Station Robbery: Building and Attacking an Identification Case
Mr. Kavanagh is charged with the robbery of a filling station in Galway on 14 September. The station's CCTV recorded the incident, but the camera was mounted behind the till and captures only the robber's back and a tattooed left forearm. The only identification evidence comes from the cashier, Ms. Ryan, who had the man at a distance of about one metre for between 30 and 45 seconds and described him as 'about 30, tall, with a beard'. Eleven days later, at a garda station, she was shown an album of twelve photographs in a single sitting and picked out Mr. Kavanagh at number 7 within about five seconds. Mr. Kavanagh's photograph in the album is six years old and shows him clean-shaven. Three days before the album procedure, Ms. Ryan had seen a local newspaper's Facebook post naming Mr. Kavanagh in connection with an unrelated theft, with a photograph. Mr. Kavanagh denies the offence and says he was at his sister's wedding; his sister and her husband are willing to testify. No forensic evidence was recovered, no cash was found, and Mr. Kavanagh made no admission when interviewed.
1. Assess the identification evidence and identify the applications defence counsel should make before the trial judge.
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The evidential picture. The case rests entirely on one witness. There is no forensic link, no recovered cash, no admission, and the CCTV shows a back and a forearm only. The tattooed forearm is the one potentially independent corroborative feature, so establish whether Mr. Kavanagh has such a tattoo and whether it matches the footage; if it does not, the case weakens considerably.
Weakness in the original observation. Thirty to forty-five seconds at about one metre sounds good for the prosecution, but it was during a robbery: stress, weapon focus, and a fast-moving event. The description was generic ('about 30, tall, with a beard') and nothing shows she was ever asked to describe distinguishing features.
Contamination. This is the strongest defence point. Three days before the album procedure she saw a Facebook post naming Mr. Kavanagh with a photograph. Her identification is therefore not a clean comparison across twelve faces; it is a confirmation of a face already associated in her mind with criminality. Press for the date, the platform, whether she commented or shared, and any record of her state of mind before the procedure.
The procedure itself. A single sitting of twelve photographs, with only Mr. Kavanagh's image six years old and clean-shaven and therefore inconsistent with her own description, is a poor array. Ask who compiled it, whether any foils matched the description, whether an independent administrator was present, and whether her confidence was recorded beforehand.
Applications. Seek disclosure of the album, the procedure log and the compiling garda's notes; object to the photo-album identification as so unfair that it should be excluded in the exercise of the trial judge's discretion; object to any dock identification; seek a clear warning on the special need for caution; and consider a submission of no case to answer if the identification is not sufficiently reliable to go to the jury.
2. How should defence counsel cross-examine Ms. Ryan, and what lines of questioning should be avoided?
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Sequence matters. Take her through the Facebook exposure early, in her own words, before she has been shown the defence theory and had time to rationalise it. Ask what she saw, when, whether she read the name, and whether she discussed it with colleagues. If she accepts she saw a photograph, the argument almost makes itself.
Then the album. Who showed it to her, where, how many at once, how long she took, whether she was told the suspect might be in it, and whether she knew the procedure was connected to this investigation. Pin down her speed: five seconds across twelve photographs is fast for a genuine comparison and consistent with recognising a face she had already been shown.
The description. Contrast 'tall, with a beard' with the six-year-old clean-shaven image she picked. Ask whether she asked for a more recent photograph. Do not invite her to speculate on why the array was poor; that is for the judge.
What to avoid. Do not put the alibi to her; the wedding is not her evidence and the question only gives her a chance to reaffirm. Do not suggest she is lying unless there is a basis: a fabrication case collapses if the jury thinks she is an honest witness doing her best, whereas a mistaken-witness case survives even if she is entirely sincere. Do not over-cross-examine on the trauma of the robbery, which invites sympathy and adds nothing.
The aim. Leave the jury with a witness who is honest but contaminated, and with an identification that was engineered rather than independent. Confidence, including the confidence she displays in the witness box, is not a reliable guide to accuracy; say so in closing rather than in cross-examination.
3. Advise on the alibi evidence: what must be done, and what are the risks?
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Formalities first. Check the applicable alibi-notice provisions and the time limit for service, and confirm the exact statutory source rather than assuming it. Late or absent notice can permit comment at trial and may affect the weight the alibi is given; it rarely bars the evidence outright, but it is an avoidable own goal.
Substance. The alibi must be specific: the wedding's location, the ceremony and reception times, and how Mr. Kavanagh travelled to and from Galway. Vague alibi evidence is worse than none.
Corroborate beyond the family. His sister and brother-in-law are interested witnesses in the eyes of a jury, however honest. Look for photographs with timestamps, a church record, a hotel booking, a taxi receipt, a card payment. Documentary corroboration converts an assertion into a timeline.
Consistency with the investigation. Establish what Mr. Kavanagh said in interview. If he gave no account and the wedding emerged only later, the jury will ask why, and the prosecution will invite an inference that the alibi was constructed. If he mentioned the wedding at the time, that is a strong point which should be led early.
Burden. He does not have to prove the alibi. Even if the jury disbelieves the alibi witnesses, the prosecution must still prove the identification to the required standard. Counsel should say this plainly in closing, because juries often treat a rejected alibi as a reason to convict.
Risk to manage. A confident alibi that fails on a detail can sink an otherwise viable defence. Rehearse the timeline, check the dates are genuinely 14 September, and be prepared for the prosecution to point to any inconsistency between the witnesses.