'Devil in the detail' of Regency trial identification evidence
The photograph of a heavily made-up man pulling at a blonde wig on his head and clutching a handgun has become familiar to anyone following coverage of the Regency Hotel murder trial.
But on the evening of February 7, 2016, in the aftermath of the now-notorious shooting, two detectives were looking at that picture for the first time.
Both Detective Garda Fergal O'Flaherty and Detective Garda Jonathan Brady "immediately" recognised the man as Patrick Hutch, the victim of a separate shooting two years earlier. But what sounded like a simple process of pointing to a picture and naming a suspect became much more complicated as the exact circumstances of that identification came under the spotlight at the Special Criminal Court this week.
Mr Hutch (25), from Champion's Avenue, in the north inner city, is pleading not guilty to murdering David Byrne (33), and possession of three assault rifles.
Mr Byrne, from Crumlin, was shot dead by a "tactical team" of gunmen dressed as gardaí who, along with a man wearing a wig and another in a flat cap, stormed a boxing weigh-in event at the hotel.
Prosecutors claim Mr Hutch was identified as the man dressed as a woman.
They do not allege he shot Mr Byrne, but that he participated in the February 5, 2016 gangland raid and shared intent to commit the crimes.
The admissibility of the identification evidence is being contested by the defence and the issues are being teased out in legal argument, which continues on Monday.
The identification issue is key, with defence barrister Michael O'Higgins SC describing it as the "only evidence" against the accused.
The dispute centres on whether the two gardaí who said they recognised Mr Hutch in that picture did so individually, or together.
Separate viewing is considered important as a "safeguard" in photo identification so one viewer cannot influence another.
The trial heard how, two days after the shooting, Det Sgt Patrick O'Toole brought Det Gda O'Flaherty and Det Gda Brady to the telephonic room at Ballymun garda station, where they were shown the photo by Gda Michael Ryan.
If the finer points of who did what in that room seemed minute at times, Mr O'Higgins said it was a case where "the devil is in the detail".
According to the four, Det Sgt O'Toole first invited Det Gda O'Flaherty behind the desk to view the photo on Gda Ryan's computer monitor.
Det Gda O'Flaherty indicated he recognised the man in the wig, but did not name him in the room. He stepped out with Det Sgt O'Toole and gave him Mr Hutch's name. Det Sgt O'Toole sent Det Gda O'Flaherty back to his office. While they were outside, Det Gda Brady named Mr Hutch to Gda Ryan before repeating it to Det Sgt O'Toole as he came back in.
Challenging this version of events, Mr O'Higgins pointed to differences between the evidence of the gardaí and their initial written statements.
In the statements, there was no reference to Det Gda O'Flaherty saying he left the room after recognising the person, with neither detective stating Det Gda Brady made his identification while Det Gda O'Flaherty was outside.
The gardaí denied giving false evidence and said they had provided additional information on what were brief statements.
However, Mr O'Higgins put it to them that what actually happened was another account given by Det Gda Brady to the High Court in a bail application by Mr Hutch in December 2016.
In that account, Mr O'Higgins said, Det Gda Brady said, "I know who it is and announced who it was", in Det Gda O'Flaherty's presence, and Det Gda O'Flaherty announced the same identification.
"It was part of a single fluid action and it was in each other's presence," he said.
The gardaí were steadfast in their insistence that their evidence was the correct version of events.
When Gda Ryan was called last of the four, the defence claimed he might have been "influenced" by press coverage of the others' evidence. Gda Ryan said he could "safely say that he did" read the Independent.ie article, but he had no "specific memory" of it.
Earlier in the week, the trial was shown dramatic and shocking CCTV evidence that captured much of the raid, including the moment Mr Byrne was shot "calmly and coldly" by gunmen. The attack was seen to last six minutes from the time the raiders in a flat cap and a wig were seen leaving a silver van to the time all the gunmen returned.
The CCTV then showed the "man in a wig" and "man in a flat cap" enter the hotel laundry door at 2.28pm.
The three "tactical team" gunmen, referred to as Tac 1, Tac 2 and Tac 3, then left the van four minutes later, at 2.32pm.
They were all seen returning to the van at 2.34pm.
Inside the hotel, the footage showed Mr Byrne running from the direction of the function room into the lobby.
"Tac 1" was seen turning and shooting Mr Byrne, who fell and skidded across the floor.
"Tac 2" came in through the front door and shot Mr Byrne again, as he lay up against the reception desk.
"Tac 2" jumped up on the reception desk and pointed his gun at a BBC journalist hiding there before aiming back down at Mr Byrne, shooting him again. The court also heard two Independent News and Media reporters and one photographer had assault rifles pointed at them outside the hotel.
The trial continues.