The trial of Kerry man James Leen is facing further delays after his lawyers applied for an adjournment so an independent expert based in Texas can analyse data from seized electronic devices.
Leen is charged in connection with the largest crystal meth seizure in the history of the State; however, his defence contests that an associate and not Leen is responsible for the alleged wrongdoing.
The 43-year-old has been charged with directing a criminal organisation and with importing crystal meth from Mexico to smuggle it through a garden centre outside Tralee, Co Kerry, in a purpose-built industrial machine before attempting to export it to Australia.
Last year, the Special Criminal Court granted an adjournment to allow for the proper examination of data on four seized devices, two phones and two laptops; however, when defence counsel Colm Smyth SC addressed the three-judge panel yesterday, he asked for a further adjournment as the issues related to the data harvesting have not been resolved.
The court heard that the prosecution holds material the defence says is pertinent and relevant to the case. This includes four devices seized in a search of Ballyseedy Garden Centre on the 24th of February: a phone belonging to Nathan McDonald, a device belonging to his sister, and two laptops. One is a Dell laptop, which the court heard is encrypted, a fact that the prosecution described as being “nothing nefarious” in and of itself. A laptop seized in Cork showed no activity since 13 May 2021, and nothing relevant was found on it.
Counsel for Mr Leen said the defence has been in dispute with the State for a prolonged period over access to the material. The State has said it will not provide everything, only what it considers relevant. Counsel said there was concern that what the State has extracted is material “that suits their case”.
Data that may have been excluded could be highly relevant to Mr Leen’s innocence when read alongside his explanation, Mr Smyth argued.
He added that his client has been in custody for two years and six months on remand.
The court heard that the prosecution had accepted the centrality of the phone material to its case, and that it would “find itself in difficulty” if that material were ruled inadmissible. Counsel for the State, John Berry SC, described the difficulty as the sheer quantity of data and said the defence had provided gardaí with four hard drives last July.
The court heard that a forensic expert from Texas flew in with his team so that analysis could take place without exposing anyone’s personal data. The State insisted the analysis take place under its supervision and did not want the material to leave the jurisdiction; however, Mr Smyth argued that the material has already left the State and is in the expert’s possession.
He said that the Texas-based expert had sworn an affidavit in which he explained how the data would be handled in order to protect the privacy of the witnesses whose devices are being examined.
Mr Berry argued that the devices contain personal information of people other than Mr Leen, and that it would be “impossible” to separate personal material from the relevant material. He said any order allowing an expert access would have to be made by the court and that the defence cannot be in a situation where private information is exposed by the DPP on a “quasi-voluntary” basis.
Mr Leen’s side said they had made repeated applications over the past year, including on the engagement of experts. They had tried to find someone within the jurisdiction, and an English expert’s licence did not extend to the Republic of Ireland. Counsel for the accused said Mr Leen is very anxious to go to trial and believes the data will show his innocence.
Mr Smyth said that if the material is available this week, the case could be “up and running” within four weeks.
Mr Smyth opposed any further adjournment, saying a year had already been granted so the defence could “sort out its affairs” and that had not been done. He questioned why the issue was being raised the day of the scheduled trial start, saying the prosecution had flagged it at once.
Ms Justice Caroline Biggs, refusing to grant a further adjournment, said that, although it may be “suboptimal”, it was the court’s experience that data could be submitted during the course of a trial, and referred to the Supreme Court case of DPP vs WC.
She said that it was not acceptable for the defence to come back a year later, on the trial date, for the same reason, seeking another adjournment.
Justice Biggs pointed to a previous case where software available to gardaí was not on par with what is available to private contractors, and how this had led to the overturn of a conviction.
She probed the defence as to why it had sought out the expert in Texas, saying that these services were available in Ireland.
“There are Irish experts to deal with these types of issues,” she said.
Mr Smyth said that the defence had been at pains to locate experts within the state and had eventually sourced one in the UK whose credentials did not extend to the Republic of Ireland.
Ms Justice Biggs directed the defence to first endeavour to find local experts, and if this was not successful, the use of the Texas-based service could be entertained.
Mr Berry said that the DPP could not consent to a further adjournment and that the issue was one of relevance to guilt as well as innocence, and that the Director must produce evidence relevant to both. He added that the estimate for the length of the case was four to six weeks.
He said that the Kerry-based Garda detective unit involved in the prosecution is “not a national one” and has other commitments next term, which could have a knock-on effect if the case was further delayed.
Ms Justice Biggs adjourned the case until Friday, noting that she was herself currently in another trial.