Sunday 20 January 2019

Judges in murder trial refuse application to exclude mobile phone evidence following Graham Dwyer's successful action

Murder victim Peter Butterly
Murder victim Peter Butterly
Graham Dwyer is appealing his murder sentence

Alison O'Riordan

Judges at the Special Criminal Court trial of a man accused of murdering dissident republican Peter Butterly have refused an application to exclude mobile phone evidence in the case brought after Graham Dwyer's successful High Court action on Thursday.

Kevin Braney (44), of Glenshane Crescent, Tallaght, Dublin 24 has pleaded not guilty to murdering Mr Butterly nearly six years ago.

Mr Braney also denies possession of a 9mm Beretta semi-automatic pistol with intent to commit murder and possession of seven rounds of 9mm ammunition on March 5, 2013 at Blackthorn Apartments, Brackenwood Avenue, Balbriggan, Co. Dublin.

Mr Butterly, a father-of-two, was chased and shot dead outside The Huntsman Inn in Gormanston in view of students waiting for their school bus on the afternoon of March 6, 2013.

Earlier, judges at the non-jury court ruled that mobile phone data was admissible in the case.

The defence had submitted that a “material change” as a matter of law had arisen concerning the retention of data from mobile phones as a result of the Graham Dwyer judgment which was delivered by Mr Justice Tony O’Connor last Thursday.

The High Court found last week that the Irish legislation, which allowed data from mobile phones to be retained and accessed, breached EU law and the European Convention on Human Rights because the retention of the data was “general and indiscriminate” and there was no prior review by a court or an independent authority before it could be accessed.

Tony McGillicuddy BL, for Mr Braney, told the court today that there was a specific challenge by Mr Dwyer to Section 3 of the Communications (Retention of Data) Act 2011 which was a requirement to retain telephone data for a period of two years and this was found to be “incompatible and inconsistent” with EU law.

Mr McGillicuddy said the Special Criminal Court is an inferior court to the High Court and it must therefore comply with the ruling.

“This means there is a patent illegality in relation to the evidence which has been obtained and which the prosecution seek to utilise and present to the court as part of the evidence against Mr Braney,” he said.

The barrister concluded that it was not appropriate to admit the evidence which had occurred in breach of EU law.

In reply, prosecution counsel Alex Owens SC said that in order to make a case for illegality and unconstitutionality, it was necessary to have locus standi (standing) which he argued Mr Braney did not have.

“None of the phones in this case related to Mr Braney at all, they provided indirect support for what David Cullen said and what the court has to decide in the general plot,” said Mr Owens, adding that the court should admit the evidence.

Following the legal applications by counsel for the prosecution and defence in the trial, presiding judge Mr Justice Paul Coffey delivered the court’s ruling on the matter.

The judge said the court had agreed to revisit it's ruling from December 5 in light of the High Court ruling on December 6 where findings of inconsistencies had been made.

Mr Justice Coffey said there was no evidence that the actual operation of the 2011 Act from the time the data was retained in this case was inappropriate having regard to the law as it was at the time. It had remained on the statute book and had enjoyed the presumption of constitutionality, he said.

The judge also said there was nothing to suggest that the relevant evidence was gathered in such a way as to violate the accused’s privacy rights.

In conclusion, Mr Justice Coffey said the mobile phone evidence should be admitted in the case.

Prosecution counsel Paul O’Higgins SC told the court this afternoon that the prosecution closed its case.

Defence counsel, Bernard Condon SC, said he is unlikely to call evidence but it was likely that he would have a short application to make to the court in the morning.

The eleven-week trial at the three-judge court previously heard from former murder accused-turned State’s witness, David Cullen, who described his role in the shooting of Mr Butterly.

Cullen was originally charged with Mr Butterly’s murder but he subsequently turned State's witness over a year after the shooting and this murder charge was dropped.

In July 2014, Cullen pleaded guilty to the unlawful possession of a semi-automatic pistol at the Huntsman Inn on the day of the shooting. His plea was accepted by the DPP and a nolle prosequi – a decision not to proceed - was entered on the count of murder and he turned State's witness.

Cullen gave evidence in the trial that his role in the shooting was to pick up a gun and bury it.

Mr O’Higgins, prosecuting, opened the trial, telling the judges that it was an unusual case because gardai were already keeping an eye on movements in the area that day as a result of certain suspicions.

He said that Mr Butterly had driven into the carpark of the Huntsman Inn around 1.55pm. He had parked and remained in his car.

He said that a black Peugeot 206 then drove into the carpark and parked for a few minutes. It left shortly after 2pm and was followed by an unmarked garda car.

It was around this time that a stolen Toyota Corolla was driven into the car park, he said.

“The car (Toyota) then stops in front of Mr Butterly’s car and two shots are fired, one through the windscreen and one through the bonnet,” said Mr O’Higgins. “Mr Butterly, who's on his own in the car, runs..., but he doesn’t get very far.”

Mr O’Higgins explained that two witnesses, who were waiting for their school buses, had stated that he was chased across the carpark and shot three times as he ran. The court heard that he fell and died almost immediately.

The trial continues in front of Mr Justice Coffey, presiding, sitting with Judge Martin Nolan and Judge James Faughnan.

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