Fight for previous DNA samples from Gareth Hutch murder accused to be admitted into court
DNA samples from a man accused of the murder of Gareth Hutch, taken when he was later arrested for another offence, should not be admissible at his trial, his lawyers have argued.
Lawyers for Jonathan Keogh (32), who is one of three Dubliners accused of murdering Mr Hutch (36), have argued that there was “no interest” in prosecuting Mr Keogh for this other offence and therefore his DNA should be inadmissible as evidence.
Judges at the Special Criminal Court will rule on Monday on the admissibility of Mr Keogh’s DNA as evidence.
Superintendent Daniel Flavin told prosecuting counsel Paul Burns SC that he sought a section 42 warrant for Mr Keogh on October 12, 2017 at Dublin District Court. There was grounds for suspecting Mr Keogh had committed an offence in February 2016, other than the offence in respect of which he was being imprisoned, the court heard.
Mr Keogh was on remand in Mountjoy Prison at the time having been charged on August 23, 2017 on suspicion of Mr Hutch’s murder.
Detective Sergeant John Healy told Mr Burns that he arrested Mr Keogh at Mountjoy Prison on October 23, 2017 for this alleged offence and brought him to Portlaoise Garda Station.
Det Sgt Healy said a mouth swab as well as fingerprints were taken from Mr Keogh. The witness said Mr Keogh’s detention was necessary in order to compare his DNA sample with a mixed DNA profile seized in the case. There was no link between Mr Keogh and the item seized, the court heard.
Under cross-examination by Michael Hourigan BL, for Mr Keogh, Det Sgt Healy said he could not explain why no individual has been charged for this offence nor why a file was only sent to the DPP two months ago. Det Sgt Healy told Mr Hourigan that he was aware Mr Keogh was charged with the murder of Mr Hutch at the time.
Mr Hourigan put it to Det Sgt Healy that gardai had no interest in prosecuting others as well as Mr Keogh in relation to this offence. Deg Sgt Healy said he disagreed with this.
Under cross-examination by Mr Hourigan, Detective Inspector Declan Dunne agreed he authorised the taking of the DNA sample from Mr Keogh and said he believed this was necessary to confirm his involvement in the offence they were investigating.
In his submissions to the three-judge court, Mr Hourigan said this is a case where there was no interest in prosecuting Mr Keogh. “Anything that flows from it should not be admitted,” he added.
In reply, Mr Burns said this is a bona fide investigation and clearly there is an interest in prosecuting this matter as a file is with the DPP. “The evidence is there was a mixed DNA sample and therefore there was a need to see if Mr Keogh was one of the sources of this DNA,” he said.
The evidence was heard as part of a voir dire - or 'trial within a trial' - to help the judges determine its admissibility. The non-jury court said they would rule on the admissibility of the DNA sample as evidence on Monday.
Detective Garda Colm Hannigan, attached to the fingerprint section of the Garda Technical Bureau, told Mr Burns that he treated two 9mm handguns for finger and palm marks but none were developed.
The court also heard no finger and palm marks were developed from a black BMW car which had been parked in the car park of the flat complex on the day before the shooting. It is the State's case that Mr Keogh and Mr AB ran to the BMW and remained in it for a minute, but then abandoned it when it would not start and ran out of the flat complex.
Det Gda Hannigan said he carried out a finger and palm mark examination on a white Ford transit van and removed a number of items from this van which included a black spray paint cap and a black plastic sack.
It is the prosecution’s case that co-accused Thomas Fox was in this van on the morning of the shooting, but due to a change of plans the white van was not required.
Det Gda Hannigan said a finger mark was developed on the black cap which was made by the left forefinger of Thomas Fox. One finger mark and two palm marks on the black plastic bag were also made by Mr Fox, he said.
Under cross-examination by Seamus Clarke SC, for Mr Fox, Det Gda Hannigan said it was not possible to state with certainty when this finger mark was made. “There is no scientific way of dating a finger mark,” he said.
Det Gda Hannigan said he examined a number of items from a Honda Civic car for fingerprints. Mr Keogh’s finger marks were found on these items which included a plastic bag containing documents, a McDonald’s cup, an insurance cert and a black-handled knife.
It is the State's case that Mr Keogh and Mr Fox were in this Honda Civic vehicle which arrived into the carpark of Avondale House on the day before the shooting. Evidence has been heard that Mr Keogh chased a man, who was there to buy a car from Ross Hutch, around the car with a knife. Mr Keogh had become suspicious about this man being in the flat complex as his life was under threat.
Mr Justice Tony Hunt said these items would be admissible subject to the ruling of the court next week.
Mr Hutch, nephew of Gerry "the monk" Hutch was shot dead as he was getting into his car outside Avondale House flats on North Cumberland Street in Dublin on the morning of May 24, 2016. He died as a result of four gun shot injuries.
Regina Keogh (41) with an address at Avondale House, Cumberland Street North, Dublin 1, Thomas Fox (31) with an address at Rutland Court, Dublin 1, and Jonathan Keogh of Gloucester Place, Dublin 1, have pleaded not guilty to murdering Mr Hutch.
Mr Fox has also denied unlawfully possessing a Makarov 9 mm handgun on May 23, 2016 at the same place.
At the opening of the trial, the prosecution told the court that the killing of Mr Hutch was not a spontaneous or spur of the moment act but a “brutal and callous murder”. “It was premeditated and a significant amount of planning had gone into it,” counsel said.
The prosecution say the three co-accused each had their own part to play in bringing about the death of Mr Hutch.
The prosecution contend that Mr Keogh threatened to kill Mr Hutch the evening before the shooting, that Mr Fox and Ms Keogh were instrumental in planning the murder, and Mr Keogh and another man, Mr AB, were the shooters.
The trial continues on Monday before Mr Justice Hunt, presiding, sitting with Judge Patricia Ryan and Judge Michael Walsh.