A man accused of shooting dead a father of one as he pushed his four-month-old son in a pram could be found guilty of the lesser offence of impeding the murder investigation, a jury at the Central Criminal Court has been told.
Mr Justice Tony Hunt told the jury that if they find the prosecution has failed to prove beyond a reasonable doubt that 31-year-old Wayne Cooney murdered Jordan Davis, they could find that he impeded the arrest or prosecution of the murderer by taking away a body warmer that the shooter disposed of in a laneway.
He said that by his own admission, Mr Cooney was seen on CCTV at Belcamp Lane about one hour and 20 minutes after the murder.
Within minutes of Mr Davis's shooting at 4pm, the prosecution alleges the shooter was caught on camera at the same laneway disposing of the bike and removing a body warmer and pair of gloves.
When Mr Cooney was "undoubtedly" seen at Belcamp Lane at about 5.20pm, Mr Justice Hunt said, he appears to be retrieving the body warmer that was placed there earlier.
He said the shooter disposed of the body warmer during a 40-second period when he was off-camera and when the person who is accepted to be Mr Cooney retrieved the body warmer, he also went off camera for almost exactly 40 seconds.
He said the jury of seven men and four women should consider that if Mr Cooney was not the person who left the body warmer, he must have acquired some knowledge that it had been put there.
"He approaches it directly, takes almost exactly the same time to go and come back as the original man took," he said.
"If he didn't do the shooting, he acquired the knowledge of where the item was in that hour and 20 minutes. That has to be considered by you."
He didn't get to the laneway by accident.
On this view, Mr Justice Hunt said, Mr Cooney was not the shooter but might have been "covering up".
He added: "If he didn't do the shooting, he didn't get to the laneway by accident.
"There had to be some information that brought him there, he had to know something about what he was retrieving and where he was retrieving it from."
He said the alternative verdict of impeding the investigation only arises if the jury is not satisfied beyond a reasonable doubt that Mr Cooney carried out the murder.
The prosecution has alleged that Mr Cooney circled Mr Davis on a bicycle for three days "as sinister as a shark moving towards its prey" before firing eight bullets at him, hitting him three times and causing his death.
The prosecution alleged that Mr Davis owed €70,000 to a local drug dealer, the brother of Mr Cooney's then-girlfriend.
When Mr Davis's mobile phone was examined by gardaí, they found a message from the drug dealer warning Mr Davis: "I'm on your case mate, it won't be long," and later telling him: "Soon, very soon, bang bang."
Mr Cooney denied to gardaí that he was the person on the bicycle and his barrister, Giollaiosa O Lideadha SC, told the jury that the prosecution case contains "large holes" and does not amount to proof beyond reasonable doubt.
Counsel said there could have been a number of people who had a motive to murder Mr Davis and he questioned the credibility of a garda who said he could identify Mr Cooney as the cyclist circling Mr Davis before shooting him dead.
He further questioned the prosecution's claim that they had proven that a mobile phone allegedly used by the killer minutes before and after the shooting belonged to Mr Cooney.
Mr Justice Hunt told the jury that if they are satisfied beyond a reasonable doubt that Mr Cooney was the cyclist who came up behind Mr Davis and shot him three times, then they must find him guilty of murder.
If the prosecution has failed to prove that Mr Cooney committed any offence, the judge told the jury they must acquit.
Mr Cooney, with an address at Glenshane Drive in Tallaght, has pleaded not guilty to the murder of Jordan Davis (22) at a laneway beside Our Lady of Immaculate National School in Darndale, Dublin on May 22nd, 2019.
He has also pleaded not guilty to possessing a 9mm semi-automatic pistol and to possessing ammunition in circumstances that give rise to the reasonable inference that he did not have them for lawful purposes.
The jury spent about one hour considering their verdicts today and will return to the Central Criminal Court on Tuesday.