Around 500 gardai viewed photo of man in wig at Regency Hotel- but only two identified the accused, court hears
AN ESTIMATED 500 gardai were asked to look at a photograph of a man in a woman's wig taken at the scene of the Regency Hotel gun murder but only two identified the accused, Patrick Hutch.
The Special Criminal Court heard while the photograph was identified by two detectives, there had been no other information about gardai who may have known Mr Hutch but did not identify him in the picture.
Meanwhile, a detective garda sergeant involved in the identification process denied telling an “unadorned lie” to the court in his account of how it was carried out.
Evidence was being heard in the trial today, with the defence asking the three-judge court to rule the identification evidence inadmissible.
Mr Hutch (25), from Champion's Avenue, in the north inner city is pleading not guilty to murdering David Byrne (33), from Crumlin and possession of three assault rifles.
Mr Byrne was shot dead by a “tactical team” of gunmen dressed as gardai who stormed the hotel along with a man wearing a wig and another in a flat cap.
Prosecutors claim Mr Hutch was identified as the man dressed as a woman.
They do not allege the accused shot Mr Byrne but that he participated in the February 5, 2016 raid and shared intent to commit the crimes.
The court has heard Detective Gardai Fergal O’Flaherty and Jonathan Brady were brought into a room in Ballymun Garda Station by Detective Sergeant Patrick O’Toole to view the photograph on February 7, 2016.
Michael O’Higgins SC, defending, maintains the detectives who made the identification were not separated as a "safeguard" against influencing each other when they viewed the picture, and their evidence that one left the room "never happened."
The gardai have insisted they did not name Mr Hutch in each others' presence.
Today, Mr O'Higgins continued cross examining Det Sgt O’Toole, who had given evidence yesterday along with the two detective gardai.
He said there were apparent inconsistencies between his initial statement about the identification.
Mr O’Higgins asked Det Sgt O’Toole if there was any discussion about safeguards being put in place before the image was viewed.
He replied that he informed the gardai he was bringing them to show them photographs to see could they recognise people in them.
“I did not go any further with any sort of caution,” he said.
He said the safeguards were that he was happy with the telephonic room in which the photographs were to be viewed and that they could be viewed individually.
Det Sgt O’Toole said a record was kept of who viewed the images and the viewing was moved to the telephonic room because the incident room was deemed too busy, to keep it “controlled.”
He was not aware of anyone viewing the photographs simultaneously.
Det Sgt O’Toole said the two gardai were shown the images individually and agreed that he had wanted Det Gda O’Flaherty to leave the room before naming Mr Hutch to avoid “contaminating” Det Gda Brady’s identification.
Mr O’Higgins questioned Det Sgt O’Toole about what he said were inferences in his initial statement - one was that Det Gda Brady was not in the room when Det Gda O’Flaherty viewed the image.
Det Sgt O’Toole denied that the statement, which did not include Det Gda Brady as being “present in the room” at that time, was wrong or misleading.
He said the omission was because Det Gda Brady was not behind the desk at that stage, viewing the image.
He accepted it inferred Det Gda Brady had left the room but said this was not the case.
“It’s badly written yes,” he said.
The other inference was that Det Sgt O’Toole was there when Det Gda Brady identified the photograph.
Mr O’Higgins said in his statement, Det Sgt O’Toole had said he was present in the room when Det Gda Brady was shown the image.
However, he had said in evidence that he was outside in the corridor when Det Gda Brady actually named Patrick Hutch to him.
Det Sgt O’Toole said he was present when Det Gda Brady went behind the desk and when the viewing commenced and was on his way out the door but was not present when he made the recognition.
Mr O’Higgins said anyone reading the statement would conclude Det Sgt O’Toole was in the room for the identification.
Det Sgt O’Toole accepted that was “a reading,” or interpretation of it, but it was not his intention and that was not what happened. Mr O’Higgins said writing an account of what happened was a simple process and it only became complicated when “people start to assemble a narrative that didn’t occur.”
Det Sgt O’Toole denied this.
Mr O’Higgins then put it to him he had written in a statement that Det Gda Brady “pointed (the man he was identifying) out on the screen.”
Det Sgt O’Toole said Det Gda Brady “did not point him out to me” but to Garda Michael Ryan, and then told him about this in the corridor.
“I suggest to you that is a lie, an unadorned lie that you told to explain something that is inexplicable,” Mr O’Higgins said.
“That is incorrect,” Det Sgt O’Toole said.
He denied that he had constructed an untrue narrative that by implication suggested that the identifications were made separately.
The court heard Det Sgt O’Toole had made an additional statement in July 2017 to set out the circumstances of the identification and he said he could not recall if he re-read his original statement.
Mr O’Higgins put it to Det Sgt O’Toole he had made a “grievous tactical error.”
“The tactical error is your failure to consult what had already been put out there resulted in a new version being put out which was completely inconsistent with the earlier one and irreconcilable with it,” he said.
This had resulted in an account to the court which was “shambolic, inconsistent and not what happened,” he said.
Det Sgt O’Toole denied this, saying he was fully aware of the fact of the two identifications.
Mr O’Higgins then put it to him that what had been said by Det Gda Brady had said in a High Court bail application in the case was what happened.
Det Gda Brady had volunteered to the High Court “exactly what happened”, he said and quoted it.
“Det Gda O’Flaherty “looked at the monitor, stepped back and he said ‘I’ll let you look’,” Mr O’Higgins said, referring to what Det Gda Brady said in the bail application transcript. “Detective Garda Brady stepped forward and did look and said ‘I know who that is’, and said the name of who it was, and Det Gda O’Flaherty also said the name.”
Mr O’Higgins said it “all happened in everyone’s presence,” asking Det Sgt O’Toole: “that is what happened, right or wrong?”
“Wrong,” he replied.
Detective Inspector David Gallagher was then cross-examined on his earlier evidence about the wider procedure of showing the photographs taken at the scene to gardai for identification purposes.
The court heard an estimated 500 gardai had seen the image of the man in the wig but nobody else had identified him.
Mr O’Higgins said the photograph would have been shown to gardai who knew Patrick Hutch or had met him but did not recognise him.
He said a reason someone might not recognise the man in the photograph was that he was wearing lipstick, makeup, horn-rimmed glasses, a wig and female clothing and was in effect “in a disguise.”
“It is in those circumstances that the information about gardai who viewed that photograph and who know Patrick Hutch and didn’t recognise him is very important,” Mr O’Higgins said.
Det Insp Gallagher said he only knew that two members identified the accused.
This afternoon, Detective Inspector John Caldwell of the PSNI said he went to Ballymun Garda Station on May 4, 2016 and identified a photograph of Kevin Murray with an address in Strabane at the scene of the Regency shooting on February 5.
On June 23, he was shown CCTV footage from the Regency bar area on the night of February 4 - the day before the shooting. He identified Kevin Murray as being present.
On September 5, 2016, Mr Murray was arrested on foot of a warrant for murder and possession of firearms in connection with the events at the Regency.
However, the prosecution was discharged on May 22, 2017 because he was in end-of-life care and he died on August 9, 2017.
Another PSNI officer, Constable Caroline Hill was questioned by Mr O’Higgins, for the defence. Constable Hill said she was an identification officer and part of her training was in supervising attempted identifications from CCTV footage and photographs.
There were PSNI guidelines which stated there should be no group viewings so nobody would be influenced by anybody else, she said.
Viewings were done one at a time and she agreed with Mr O'Higgins that would be "strictly enforced."
Asked if viewers were informed they should speak to nobody else, she said it would be “an independent viewing.”
Mr O’Higgins asked if one person said “I know who that is” to another person following, would she regard that as unhelpful.
“I wouldn’t know because a lot of the officers would know a lot of people anyway,” Constable Hill replied.
She agreed it was “fairly obvious” why there would not be two people in the room.
Detective Garda Paul Darley said some gardai who came to view the photographs from the Regency in Ballymun Station would come in pairs and one would have remained at the door.
Garda Michael Ryan, a mobile phone forensic examiner said Det Gda Darley asked him to take over the task in the telephonic room because the incident room was busy.
At 6.30pm On February 7, Det Sgt Patrick O’Toole came to the room with Det Gda Fergal O’Flaherty and Det Gda Jonathan Brady to view the image, he said.
Mr O’Higgins then said it was the first time he was on notice that the witness was to be called.
He had made an initial brief statement.
The court rose so Gda Ryan could make another written statement of his proposed evidence but when the trial resumed, Mr O’Higgins asked for an adjournment to tomorrow to consider it.
“We want to place on the record our sense of anger that this should be allowed to happen,” he said.
He said the last witness called purported to give an account years after the event.
“It’s difficult to conceive of a process that is more unfair or more alien to a fair trial,” he said.
Prosecutor Sean Gillane SC said matters often arose in trials that at first appeared insignificant but took on a greater significance.
“There was no intention to visit any unfairness on anyone, either professionally or otherwise,” he said.
Mr O’Higgins said the other three witnesses involved in the identification had been directed to make additional statements clarifying their position last December.
“This is not a matter that arose spontaneously,” he said.
It was unfair to find at the eleventh hour the witness was put in the box and asked what happened, he said.
Judge Tony Hunt said he was granting the adjournment.
The trial continues tomorrow.