A man accused of murdering an early morning gym-goer and the attempted murder of boxing coach Pete Taylor in 2018 has applied for bail on the grounds that he has been in custody for almost five years with no new trial date in sight, the Court of Appeal has heard.
Gerard Cervi is accused of the murder of Bobby Messett (50) and of the attempted murder of Mr Taylor, who was also shot when a gunman entered Bray Boxing Club in Bray Harbour, Co Wicklow on June 5th, 2018.
Mr Cervi (36), who is originally from the East Wall, Dublin 3, is further accused of the attempted murder of Ian Britton on the same date and location.
A 2021 trial heard a gunman entered Bray Boxing Club at about 6.50am and opened fire. He shot Mr Messett in the head, killing him instantly. Mr Britton was shot in the leg while Mr Taylor ran towards the gunman but was shot in the shoulder and fell to the ground.
It was the State's case against Mr Cervi that he was the "lone gunman" who fired nine shots from a semi-automatic pistol "in quick succession" in "varying directions" before making his escape.
His trial at the Central Criminal Court, which had already been delayed due to Covid restrictions, collapsed after 10 weeks in September 2021, when Mr Justice Michael White told nine remaining jurors that one of their fellow jurors had fallen ill, making it "impossible to continue" as they had "gone below 10 jurors".
The trial, which opened on June 29th, 2021, was originally due to finish in August that year, but two jurors asked to be discharged when the finish date was extended into September.
On August 24th, 2021, the remaining 10 jurors further agreed to sit on until October 22nd, 2021, but the trial collapsed on September 6th, 2021. It had previously been given a date to commence in June 2020, but Covid restrictions prevented its commencement by a year.
Court of Appeal
At the Court of Appeal on Friday, lawyers for Mr Cervi told the three-judge court that no new trial date had been set and that an awaited Supreme Court ruling that may have a bearing on the case regarding phone evidence would further delay matters.
Michael O'Higgins SC, for Mr Cervi, said it could be "12-18 months" before any new trial could begin and that his client had been in custody since September 6th, 2018, "a total of four years and eight months".
The barrister said any court has to operate on the presumption of innocence and the right to bail for an accused person, unless objected to. Mr O'Higgins said the public interest element in the case meant "a trial actually taking place".
He added the passage of time meant a "meaningful review" of bail could be carried out as it was a question of a "dynamic" change caused by the amount of time spent in custody by Mr Cervi.
Mr O'Higgins said his client had been in custody since September 2018 and had been refused bail earlier this year due to concerns that he was a flight risk regarding a number of trips he took to Malaga after the shooting. "Flight risk was the principal objection," Mr O'Higgins said.
"That has to be taken very seriously. Whoever went into the gym in Bray would be unlikely to volunteer themselves for trial. If given the opportunity [to abscond], they would very likely take it," Mr Justice George Birmingham said.
However, Mr O'Higgins said there was "very strong evidence" that "the vast majority" of people on bail facing serious charges do turn up for their trial.
The barrister said Mr Cervi had returned from Malaga on three occasions since the shooting and before his September 2018 arrest when his client was living in Bundoran, Co Donegal.
Ms Justice Isobel Kennedy asked for the reasons behind Mr Cervi's three trips to Malaga after the shooting and was told by Mr O'Higgins that the accused may have been "in fear" after certain details were published in newspaper accounts of the shooting.
Mr O'Higgins said his client was "not a recidivist criminal, or an established one, or anything like that".
He said Mr Cervi's trips between June and early September 2021 showed that "every departure made was done with a return to the jurisdiction".
Mr O'Higgins said the passage of time could "trump factors objecting to bail that could not be trumped six-to-eight months after the crime, for example".
Mr O'Higgins agreed with Mr Justice Patrick McCarthy, who said: "So, the change of circumstances regarding this bail application is the length of time and the lack of a date for a trial."
The barrister said Mr Cervi is willing to wear a security tag or go under house arrest if granted bail, alongside obeying "stringent" conditions should they be applied by the court.
"It comes down to a question of trust. This is a modern democracy and all things being equal, if you get taken into custody for years it is not permissible for someone who is not contributing to the delay to just endure that," he said.
Stephen Dixon BL, for the State, said Mr Cervi "is a clear flight risk and was a clear flight risk in 2018". Mr Dixon said Mr Cervi told gardaí that his first trip to Malaga on June 26th, 2021, was for a stag party, but there were no explanations offered for the other two trips.
Mr Dixon said that when Cervi was arrested, he was in possession of a "one-way" ticket for a fourth trip to Malaga and that it was "unusual to have such cogent evidence of a flight risk" in objections to bail.
"There was no evidence of a return flight, no explanation as to why he was going at that time and none given to any detective or to the High Court," the barrister said.
Mr Dixon added that the accused had no familial connection to Bundoran, where he was arrested, and there had been no such pattern of travel prior to the shooting.
The barrister said no conditions would satisfy the State that Mr Cervi was not a flight-risk.
Responding, Mr O'Higgins said: "If innocent people are incarcerated for a lengthy period of time, it doesn't serve the public interest."
Mr Justice Birmingham adjourned the matter to May 18th for more information regarding Mr Cervi's work history, the "mysterious" reasons for travelling to Spain and elsewhere, and regarding his living arrangements in the period before his arrest.