Thursday 18 October 2018

Garda involved in identification of Regency gun murder accused could have been 'influenced' by media report, court hears

The Regency Hotel
The Regency Hotel

Andrew Phelan

One of the gardai involved in the identification of Regency Hotel gun murder accused Patrick Hutch from a photograph taken at the scene could have been “influenced” by a media report about the trial, the defence has claimed.

Garda Michael Ryan, who showed two detectives the photograph of a man in a wig for identification said he could “safely say that he did” read the Independent.ie article, which detailed their evidence before he gave his own testimony.

However, he said he had no “specific memory” of it and that while the defence said he was “centre stage” in the identification, he said he himself believed he had a minor role and was a “button pusher.”

Judge Tony Hunt said he was allowing Garda Ryan’s evidence to be heard during ongoing legal argument at the non-jury Special Criminal Court over the admissibility of the garda identification evidence.

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 gangland raid and shared intent to commit the crimes.

The court has heard Detective Gardai Fergal O’Flaherty and Jonathan Brady identified Mr Hutch in the photo when Gda Ryan showed it to them at Ballymun Garda Station on February 7, 2016.

Det Sgt Patrick O’Toole had brought the two detectives for the viewing.

All gardai have insisted Mr Hutch was named separately by the two detectives, while the defence contends that they named him in each other’s presence.

The court has heard individual viewing of a photograph for identification is considered important as a “safeguard” so one viewer cannot influence another.

Today, Mr O’Higgins argued Garda Ryan’s evidence could be compromised if he had read an Independent.ie report of the legal argument.

He said he was not criticising the media but thought it was an “unusual procedure” to report legal argument.

He then read from the report of the detectives’ evidence and said it was “the answer, the magic bullet” that the prosecution was relying on.

“My concern is if the witness has seen this and now comes to court with an explanation, knowing exactly what the issues are, it’s unfair,” Mr O’Higgins said.

Sean Gillane SC, prosecuting, said he had no knowledge until last night that the legal argument was being reported on.

He said there had been no tactical decision to call Garda Ryan when he did. Mr O’Higgins said he understood Garda Ryan was always going to be called as a witness but he was not on notice of the material he was going to “unleash” in evidence.

He said it was still an unfair advantage, whether by happenstance or tactic.

Judge Hunt said the court was entitled to hear Gda Ryan’s evidence.

Gda Ryan said at approximately 6.30pm on February 7, 2016, Det Sgt O’Toole came into his office with Det Gda Brady and Det Gda O’Flaherty.

Det Sgt O’Toole introduced him to the two detectives and informed him that they were there to view the image.

Det Sgt O’Toole invited Det Gda O’Flaherty to come around his desk to view the screen, he said.

Det Sgt O’Toole and Det Gda O’Flaherty walked around the desk where they could see the monitor. At this point, Gda Ryan, said, he opened the image.

Det Sgt O’Toole invited Det Gda O’Flaherty to view it.

“Immediately on viewing the image, Det Gda O’Flaherty stated that he recognised the person on the left,” Gda Ryan said. “He didn’t indicate who that person was, nor did he indicate who the person on the right was.”

Upon him indicating this, Gda Ryan said he zoomed in on the image to the point before it started to pixellate, to give the closest possible view.

Gda Ryan said he scanned the image down from head to toe, first the person on the left.

“Det Gda O’Flaherty again stated he recognised that person, he did not say who that person was,” he said.

At this point, Det Sgt O’Toole invited Det Gda O’Flaherty outside the door and Det Sgt O’Toole remained behind the desk and asked Det Gda Brady to come around the desk to view the image", Gda Ryan continued.

“Det Gda Brady walked around the desk in order that he could actually view the monitor and at that stage, Det Sgt O’Toole asked him could he view the image,” Gda Ryan said.

Det Sgt O’Toole asked Gda Ryan to show the image to Det Gda Brady and walked out of the room after Det Gda O’Flaherty.

Again, Gda Ryan showed the image first in its entirety, zoomed out.

“Det Gda Brady immediately informed me that he recognised the person on the left as being Patrick Hutch Jnr of Champion’s Avenue,” Gda Ryan said. “He stated he did not recognise the person on the right.”

Gda Ryan said he again zoomed in and again Det Gda Brady stated “that he recognised that person to be Patrick Hutch Jnr.”

He again invited Det Gda Ryan to view the image on the right and he again stated he did not recognise that person.

In cross-examination, he told Mr O’Higgins when Det Gda Brady made his identification, there was nobody else in the room.

“Do you read the Indo?” Mr O’Higgins asked Gda Ryan.

He replied that he regularly read RTE news, the Journal and the Irish Independent news apps, at night after work.

Mr O’Higgins then read out a court report on the trial from the Irish Independent online on Wednesday this week.

He asked Gda Ryan if he had read it.

“If it was two days ago and it was in the Independent, I would have read it, yes,” he said.

Mr O’Higgins asked if he would have read it or if he did read it.

“I would safely say that I did,” he replied, adding that he did not have a specific memory of it.

Mr O’Higgins said the garda’s evidence was it was a “matter of deduction” rather than specific recollection.

Gda Ryan said there had been a lot of articles in the press and he did not seek it out.

Mr O’Higgins said yesterday, the garda had asked for 25 minutes to write his new statement about events of two years ago.

Gda Ryan said the case was by far the biggest he was ever involved in and “it does stick in my memory.”

Mr O’Higgins said he could “not get a straight answer” on whether the garda had read an article on the biggest case he had been involved on, which “touched on your very role in it.”

Gda Ryan said he had had a minor role, had acted as a “conduit” in the viewing of the photographs and was a "button pusher."

“The news report and the voir dire has at centre stage what happened in that room with four actors - yourself, Det Gda Brady, Det Gda O’Flaherty and Det Sgt O’Toole - there are four people in this production, it has been centre stage for the last four days and the court reporting has reflected that it was centre stage, and you were centre stage,” Mr O’Higgins said.

Gda Ryan said he had read every article on the app, and on the RTE app.

Questioned in more detail about his statement and evidence, Gda Ryan said he was not aware that the time the detectives arrived to view the image was “a point at issue.”

Mr O’Higgins said Gda Ryan had said Det Gda Brady told him it was Patrick Hutch of “Champion’s Avenue,” she he made his identification.

Mr O’Higgins said Det Gda Brady had not said in his evidence that he used the words Champion’s Avenue. The only contemporaneous record was taken by Det Sgt O’Toole, who said Det Gda Brady said “Champo Avenue” to him in the corridor.

Gda Ryan said he never heard the street referred to in that way before and that the words used to him were “Champion’s Avenue.”

Mr O’Higgins said it was unlikely Det Gda Brady would have said “Champion’s Avenue” in the room and “Champo Avenue” in the corridor.

Gda Ryan denied he was “terribly confused” in his account. Mr O'Higgins put to him another possibility: that the three detectives came into the room, Det Gda Brady left the room and Det Gda O’Flaherty’s identification took place in the presence of Gda Ryan and Det Sgt O’Toole.

Gda Ryan said he was “absolutely certain” Det Gda Brady did not leave the room.

He denied that the reason he was rejecting this because it would “run contrary to” what he was saying in court.

Det Sgt O’Toole could not have seen Det Gda Brady point to the screen and make his identification because he was not in the room at the time, Gda Ryan said.

Mr O’Higgins said these two accounts were so different that it could not be put down to confusion.

Gda Ryan agreed there were similarities in the three detective’s “narratives” but did not think they were “striking” and said they were all detailing the same incident.

“There are only so many ways to put what happened,” he said.

Mr O’Higgins then put to him that what actually happened was the account given by Det Gda Brady to the High Court in a bail application by Mr Hutch in December 2016.

In the account, Mr OHiggins 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,” Mr O’Higgins said.

Gda Ryan denied this.

“It happened as I have outlined in my evidence and in my statement,” he replied.

The trial continues on Monday.

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