Natasha Reid and Alison O’Riordan
An armed robber jailed for 15 years after shooting two staff during a raid of their restaurant has lost his appeal against conviction.
Workers had resisted his attempts to rob the take-away as staff toasted the first moments of New Year’s Day 2019.
Joseph Behan (45), of Edenmore Park, Raheny, Dublin was convicted by a jury of robbery, attempted robbery, assault causing serious harm, assault causing harm, possession of a firearm and reckless discharging of the firearm at Mizzoni's Pizza, Edenmore Shopping Centre, Raheny, on January 1st, 2019.
During the trial at Dublin Circuit Criminal Court in February 2020, the jury heard that staff were toasting the New Year with champagne shortly after midnight, when Behan arrived with a gun and demanded money.
Shots fired
A staff member responded by throwing a champagne bottle at Behan, and he began to retreat out the door. However, as he did, he fired several shots into the takeaway.
At least two bullets were discharged and two members of staff who were standing in the kitchen were shot. One of the men had a "through and through" bullet wound in his chest and was at serious risk of death.
Behan was found guilty and sentenced to 15 years in prison for assault causing harm by Judge Martin Nolan. The judge noted that Behan had made a determined attempt to rob the restaurant and, when the occupiers resisted, he discharged his firearm twice.
He said one of the men shot was grievously injured and, but for the early intervention of a paramedic, “there is a good likelihood he would have died”. He said Behan could have killed a number of people that night.
Search warrant
His lawyers appealed his conviction to the Court of Appeal, arguing that a search warrant for Behan’s house was not lawfully obtained, and that a glove containing firearms residue found in the house was unconstitutionally seized.
Ronan Munro SC said the search warrant had been urgently issued by Detective Superintendent Paul Scott.
He submitted that the warrant was not lawfully or validly issued, the resulting search was in breach of constitutional rights and the evidence obtained ought to have been excluded.
Mr Munro said that Det Supt Scott was not independent as he was involved in the investigation. Accordingly, he could not lawfully have issued a search warrant, he said.
Ruling
President of the Court of Appeal Justice George Birmingham, who sat with Justice Patrick McCarthy and Justice Isobel Kennedy, delivered the court’s written judgement on Friday.
“Detective Superintendent Scott knew nothing of events at Edenmore Shopping Centre until he was contacted by phone,” they stated.
The court said that it was not overly influenced by the fact that, at a point in time after he had issued the warrant, Det Supt Scott became actively involved in the investigation.
“It is quite likely that any investigator worth his salt, called from his bed in the early hours of New Year’s Day, would, having decided to issue a warrant and with an initial role at an end, have decided to lend a hand,” concluded the judges.
They dismissed the appeal.
