Wednesday 19 September 2018

No evidence that gardai 'colluded' to wrongly identify Patrick Hutch in photograph, court hears

The Regency Hotel
The Regency Hotel

Andrew Phelan

There is no evidence that gardai “colluded” to wrongly identify Patrick Hutch in a photograph taken at the scene of the Regency Hotel gangland attack, his trial has been told.

Prosecutor Sean Gillane said the Special Criminal Court should not infer there was any “skullduggery” in how the officers prepared their statements.

He was making legal submissions on the admissibility of key evidence by detectives who said they “immediately” recognised Mr Hutch in a photo of a man in a wig.

Today is the fifth day of legal argument in the trial during which the defence have objected to admissibility of the identification evidence.

Michael O'Higgins SC, defending, has claimed the circumstances of the how the gardai made their identification was a “dog's dinner" and argued “unfair procedures” were used.

Patrick 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.

Their case is not that he 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 identified Mr Hutch in the photo when Gda Michael Ryan showed it to them at Ballymun Garda Station on February 7, 2016. Det Sgt Patrick O’Toole brought the two detectives for the viewing.

All have insisted in evidence Mr Hutch was named separately by the two detectives, while the defence contends it can be concluded 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 referred to new statements that were made by Det Sgt O’Toole and Det Gdai O’Flaherty and Brady, which he said were “at variance” with their original statements.

He said it was reasonable for the court to conclude that they discussed what had happened among themselves before making the new statements.

There was nothing wrong “in itself” in doing that, but there was a problem in the case because there was no reference in the first statement to the two gardai being together in the room.

Subsequent versions had the two gardai “at rock bottom minimum” present for some of the proceedings, Mr O’Higgins said.

He said if the two men were separated after the first said “I know who that is”, the more natural occurrence would be for the person about to make the identification to stay in the room.

However, the prosecution was “restrained” in what they could do to salvage this and it had to involve Det Gda O’Flaherty leaving the room.

As a result, the court was left with a version in which the identification continued with the second garda and Mr O’Higgins argued this was “odd.”

Judge Tony Hunt suggested if this was the version of the facts that was taken then one identification, that of Det Gda O’Flaherty could still be admissible and only the other was “tainted.”

Mr O’Higgins said if the first garda had stood back and said “I’ll let you take a look” and the court found there was “some hesitation in that” then the second garda’s identification was also tainted.

Mr O’Higgins said the interpretation the defence was putting forward was that the two went into the room, one stepped up to the monitor, he stepped back and said ‘I’ll let you take a look’, then Det Gda Brady stepped forward and said “that is Patrick Hutch” and the other garda agreed with that.

That identification would be tainted because the garda was saying he knows who it is and the “pronouncement comes after.”

“This is an investigation in which the Hutches are prime suspects, these are individuals who had contact with one member is the Hutch family,” Mr O’Higgins said.

“This isn’t the identification of a random citizen, they are going down there with information about a particular family.”

Mr O’Higgins said that did not mean a valid identification could not be made, but where someone said “I’ll let you take a look” where the potential for identification was quite narrow, “that is a very telling phrase and that is where the problem lies.”

Mr O’Higgins said enormous trust was vested in people carrying out these procedures and if it was established that that trust had been breached, the court could not say the evidence of one of the witnesses was admissible anyway.

The burden of proof was on the prosecution to make its case beyond reasonable doubt, he said.

Mr O’Higgins said the court had to ask itself how the first version of events in the first garda statements “got created.”

To accept the later versions, the court “must be satisfied that there is an innocent explanation.” If it was not satisfied, Mr O’Higgins argued, “that is the end of this case.”

He said if the the court was left in a state of uncertainty, it should exclude the evdience.

Mr O’Higgins again compared the identification to that carried out by the PSNI of the second man in the photo, saying they were like “chalk and cheese.”

“This wasn’t scrupulously fair,” Mr O’Higgins said. “It was whatever you’re having yourself.”

He said there had been “no procedures at all” for the identification.

He said the other man in the photo, the man in a flat cap who a PSNI officer said was Kevin Murray, was as he was “in everyday life.”

“If it was like for like you would have hundreds of identifications in this case,” he said.

It was inconceivable that of the 498 gardai who saw the photo and made no identification that some of them did not know Patrick Hutch.

It was a “useful statistic” that 99.6pc of people did not recognise him.

However the court was entitled to know how many people were capable of recognising the accused but did not, he said.

Mr Gillane said the context of the identification was relevant.

“Outside paramilitary atrocities this was an event which was unprecedented in terms of it being an attack in the middle of the day with assault rifles in a hotel here in Dublin city,” Mr Gillane said.

He said there was a “fluke” in having still images that evening and it was an imperative part of policing that steps were taken to identify people in the photos.

There were “very practical real world imperatives” that resulted in the identification process.

The ultimate test was whether the evidence the court had heard in legal argument was “sufficiently reliable” to be admitted.

Many of the evidential issues raised “don’t in truth or law have an exclusionary effect,” he said.

The core issue was the identification itself and Mr Gillane said he did not understand there to be any “direct challenge to the correctness of the identification evidence” on the basis that the gardai colluded in wrongly making an identification.

He also did not understand there to be any challenge to the identification on the basis of inadequacy of material to be identified - the photo - or either garda’s means of knowing the accused.

The evidence of both detectives was that when they went to Ballymun Garda Station they knew little or nothing about the wider investigation into the events at the Regency, Mr Gillane said.

Det Gda Brady accepted there was much speculation and “much in the media” at the time in relation to the “Hutch-Kinahan” feud background.

“It was never accepted in evidence that Garda O’Flaherty or Garda Brady were going to that garda station to identify a Hutch,” Mr Gillane said.

It had been explicitly submitted by the defence that Patrick Hutch was the only Hutch who could have been identified, and this went beyond a suggestion of “contamination,” Mr Gillane said.

There was no evidence anywhere in the case to support this, he said.

All the evidence was that nobody knew who the two people in the photo were.

Mr Gillane said Det Gda Brady had rejected the proposition that he understood there was “any hesitancy” in Det Gda O’Flaherty’s identification and there was nothing in the evidence to suggest a “transfer of reassurance” from one garda to the other.

The gardai had both denied contributing to each other’s statements.

The detectives had accepted there should have been more detail in their statements, but Mr Gillane argued this was not a basis for saying that what they said on oath should be disbelieved.

Judge Hunt remarked that there were “a couple of things” in Det Sgt O’Toole’s statement which could not be correct if his evidence was right.

On what was said in a bail hearing, Det Gda Brady had accepted his “language was inexact” when he described what happened at the identification.

“The defence complaint is that if the accounts are similar, it’s collusion, if they are different it’s a dog’s dinner and either way, you should reject them,” Mr Gillane said.

The inference from similarities in statements was “not one of collusion or skullduggery” but the explanation was the gardai were describing as best they could the same event.

“The evidence is such that the court should receive it, what the court ultimately does with it is a matter for the court,” Mr Gillane said.

His submissions were continuing this afternoon.

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