A man accused of participating in the murder of Kinahan Cartel member David Byrne at the Regency Hotel should have his garda interviews ruled inadmissible as he was not cautioned when he gave his initial statement in "defiance of the law", his barrister has argued at the Special Criminal Court.
However, Sean Gillane SC, prosecuting, said defence counsel John Fitzgerald SC, for Jason Bonney, had "legally overreached" by saying that the failure to caution the accused "flowed into everything else and contaminated everything else".
Gerard Hutch (59), last of The Paddocks, Clontarf, Dublin 3, denies the murder of Mr Byrne (33) during a boxing weigh-in at the Regency Hotel on February 5, 2016.
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Mr Hutch's two co-accused - Paul Murphy (61), of Cherry Avenue, Swords, Co Dublin and Jason Bonney (51), of Drumnigh Wood, Portmarnock, Dublin 13 have pleaded not guilty to participating in or contributing to the murder of Mr Byrne by providing access to motor vehicles on February 5, 2016.
Evidence of the arrests and interviews of Mr Murphy and Mr Bonney have been heard by the three-judge court over the last few days. Submissions were made on Tuesday during a voir dire, or "trial within a trial", to resolve a dispute over the admissibility into evidence of these interviews.
It is the prosecution's case that a silver Ford transit van containing six people left the Regency Hotel after the shooting, including three persons dressed in tactical garda clothing. The raiders then made good their escape by using a number of parked vehicles at St Vincent's GAA club.
Mr Murphy's Toyota Avensis taxi and Mr Bonney's BMW X5 jeep are both alleged to have been part of a convoy that parked up at St Vincent's GAA club grounds before the shooting and then transported the assailants after the Ford transit van was abandoned.
Ms Justice Tara Burns, presiding, sitting with Judge Sarah Berkeley and Judge Grainne Malone will rule on the issue on Monday.
On Tuesday, defence counsel Mr Fitzgerald, for Mr Bonney, argued that when now retired Detective Garda Alan Crummey and his colleague conducted an interview "in a relatively formal way" with the accused in his kitchen on February 21 2016 they should have cautioned him before conducting the "question and answer session".
The barrister said Det Gda Crummey had been given a jobs book that told him to administer a caution but that he had not read it. He went on to say that it was "truly extraordinary" that two gardai in an important investigation didn't take time to read the one page document. He also said "it simply beggared belief" that Mr Bonney was not cautioned before he was first questioned by gardai investigating the murder of Mr Byrne. His responses in the statement were later used by gardai to detain him which in turn became tainted, he argued.
Evidence was given last week that the two detectives went to Mr Bonney's house the day after his BMWX5 was seized but the accused declined to make a statement. In a garda memo of their conversation, Mr Bonney said he was working between an extension on his own house in Portmarnock and a home renovation at Newbrook Avenue, Donaghmede. He said he was going back and forth between the two sites and was using the BMW X5.
Mr Fitzgerald said today that the initial interview "fed into what happened thereafter", namely that just over three months later when Mr Bonney was arrested on the morning of May 27, 2016, there was an alleged discrepancy between his February 21 account and the subsequent movements of the vehicle on CCTV.
"These are not separate processes but entirely linked. The State should not be able to take advantage of the error and ground material that was obtained unfairly," he added.
The barrister said what took place that day was "not house to house enquiries" but a formal situation where gardai were seeking to garner evidence that they were intending to use. The need for a caution was self-evident and the failure to administer one was "a very grave error", he stressed.
The lawyer also argued that there was an inconsistency in what gardai said to Mr Bonney on February 21 and what had actually appeared on the CCTV footage. Mr Fitzgerald said that part of the grounds to detain Mr Bonney was because he was seen with his jeep "at other locations for which he had not accounted". The court has seen the CCTV footage and they have seen that is simply wrong," he argued. He submitted that his client was not seen in the CCTV footage with the BMW X5 other than where it was alleged at Drumnigh Wood in Portmarnock.
The material which was obtained unfairly, he said, played "a very great part" for the member in charge to detain Mr Bonney at Ballymun Garda Station on May 27.
Mr Fitzgerald asked the court to rule out and deem inadmissible not just the initial questioning by gardai of Mr Bonney on February 21 but also "the fruits" of his unlawful detention on May 27.
In his submissions, Bernard Condon SC for Mr Murphy, said that gardai knew that his client's car had been seized when they called to his house to take a statement on February 22 and that not cautioning him was a "substantial failure" and that the interview should be ruled out. Det Gda Crummey met Mr Murphy again on March 3 and March 9, 2016 at the Croke Park Hotel to take additional statements from him and he was cautioned. Mr Murphy was then arrested on May 30, 2016.
Prosecuting counsel Sean Gillane SC replied to Mr Fitzgerald's submissions saying that it was not a custodial exchange between Det Gda Crummey and Mr Bonney on February 21 but a domestic exchange. Mr Gillane pointed out that the detective asked for permission to speak to Mr Bonney, which he gave and Det Crummey said if the accused had refused then he would have had to turn around and leave the house.
The prosecutor said the detective asked the accused permission to write down the statement and Mr Bonney agreed. "He was asked to account for himself and he freely does. Not only is the statement read back to him, he is also asked if it is an accurate note of the conversation and the accused said yes," he said. The detective didn't leave it there, he said, and gave Mr Bonney a copy of the statement.
Mr Gillane said that Mr Fitzgerald had "legally overreached" by saying that the failure to caution "flows into everything else and contaminates everything else". "I say that is not so and is without precedent," he added. He said Mr Fitzgerald submitted that what was obtained in the exchange had subsequently "tainted" his arrest and detention.
Counsel said what was at issue was the state of mind of the questioner and the circumstances of the questioning. He said as far as Det Gda Crummey was concerned Mr Bonney was not a suspect at the time and believed he was on a "fact finding mission". Mr Gillane said the accused had even told gardai when he was detained that he wanted to rely on his statement from February 21 as he did not want to make mistakes.
Mr Gillane said that "strands" including that the BMWX5 was seen in convoy with other vehicles and that it was present at St Vincent's GAA grounds would lead to a rational view that Mr Bonney was to be detained. "Even if there was some inadvertent error of Mr Bonney being seen at some location and not others, there was ample material before him to justify a decision to detain the accused," he argued.
Referring to Mr Murphy, Mr Gillane said the exchange on February 22 had been read over to him and there was no suggestion he was under any pressure. "He was asked questions in an environment that was not custodial but domestic, he was invited to sign and did so which was as old as the common law. He adopted the document as being accurate," he outlined.
In his second statement on March 3, counsel said Mr Murphy was told he could keep his mouth shut but he didn't.
In reply, Mr Fitzgerald said there was "a wealth of suspicion and a wealth of grounds" to suspect his client but yet he was not cautioned, which was utterly in defiance of the law.
Mr Byrne, from Crumlin, was shot dead at the hotel in Whitehall, Dublin 9 after five men, three disguised as armed gardaí in tactical clothing and carrying AK-47 assault rifles, stormed the building during the attack, which was hosting a boxing weigh-in at the time. The victim was shot by two of the tactical assailants and further rounds were delivered to his head and body.
Mr Byrne died after suffering catastrophic injuries from six gunshots fired from a high-velocity weapon to the head, face, stomach, hand and legs.
The trial continues on Wednesday.
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