'Unfair procedures' behind identification of Patrick Hutch in Regency case, court hears
The circumstances in which two detectives identified Regency Hotel murder accused Patrick Hutch from a photo taken at the scene were a “dog's dinner,” the defence has claimed.
Michael O’Higgins SC argued that there were “unfair procedures” behind the identification and accounts of gardai stepping in and out of the room were like “Lanigan’s Ball.”
He is objecting to the admissibility of the evidence of gardai who say they recognised Mr Hutch from a photo of a man in a wig.
Mr O’Higgins’ legal submissions are due to conclude tomorrow, when the prosecution is expected to respond before the three-judge Special Criminal Court makes its decision on whether to allow the evidence.
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 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 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 they named him in each other’s presence.
Mr O’Higgins argued the court could not be convinced beyond reasonable doubt of the version of events on which the prosecution was relying.
He argued the identifications were “tainted and sullied.”
There was a “significant lack of fair procedures” in how the event was recorded, he said.
Because of the unfair procedures, he argued, the identification should not be allowed.
“What did or didn’t happen in that room can only be described as a dog’s dinner,” Mr O'Higgins said. “There are so many different versions floating around, so much ambivalence and ambiguity floating around… there are accounts given that simply cannot be reconciled.”
He said if matters had been properly conducted, as had happened with the identification of the “flat cap” suspect Kevin Murray by the PSNI, “we wouldn’t be in this position.”
He said of the many hundreds of gardai who viewed the photograph and did not make an identification, it was not known how many knew Mr Hutch.
On the evidence, he said, even if the court “cherry picked” the best prosecution evidence and took it at its height, it was still flawed.
This, he said, was because, even if court accepted that Det Gda O’Flaherty was taken out of the room after indicating he knew who was in the photo, there was an “insuperable difficulty.”
He said if this had happened in a formal identity parade, the first person would be saying he might recognise someone on the parade.
He said both gardai were in the Mountjoy District and knew the accused's brothers Derek and Gary Hutch were “out of circulation”. The only Hutch they had any contact with was Patrick Hutch.
If they had “a Hutch” to identify, Mr O’Higgins said it seemed to him by a process of elimination that the most likely or only candidate was his client.
He said for the first person to say they knew who was in the photo was “priming” the next person, while “the Hutches were in the frame from the get go.”
This would not be tolerated in a formal ID parade, he said, and it “should not have happened.
Mr O’Higgins said it also suggested hesitancy.
“It is a flawed process, you cannot have two people being asked to make an identification having a conversation between themselves along the lines of ‘I will let you take a look’ and ‘I know who that is’”, Mr O’Higgins a said. “That in itself is not at acceptable form of identification, it’s a form of identification that relies on reassurance from one person to another. That is the antithesis of the manner in which an identification should occur.”
Even the gardai involved agreed it should not have happened, he said.
Mr O’Higgins then went through the different statements provided by the garda, and their evidence to the court, pointing to “striking similarities” and inconsistencies between them.
He said the odds of four people recounting facts in the same sequence as in the initial garda statements were “very very long indeed.”
Mr O’Higgins said when the detectives then made additional statements the consistency was “absolutely not there.”
He described accounts of who was in the room and who was outside when the identifications were made as “all this Lanigan’s Ball about stepping in and stepping out again.”
In a bail hearing in December 2016, Det Gda Brady had “conceded” that the gardai identified the accused in each other’s presence, Mr O'Higgins said.
He is due to conclude his submissions on admissibility tomorrow.
Earlier, Juvenile Liaison Garda Paul Caffrey said he would have seen Patrick Hutch when the accused was age 8 to 11 at the family flat at Liberty House.
In October 2015, he attended the funeral of the accused’s brother Gary Hutch and shook hands with family members, including Patrick Hutch. He was also shown the photograph in question by investigation gardai and made no identification.