The privacy rights of a murderer and leader of the New IRA in Dublin were breached when gardaí used a surveillance device to listen to him speaking with members of a criminal gang at a KFC restaurant, the Court of Appeal has been told.
On the second day of Kevin Braney’s appeal, his lawyer, Tony McGillicuddy SC, said gardaí did not seek proper authorisation before using the device and that the trial court should not have admitted the recording as evidence.
Part of the evidence against Braney (49) during his trial at the Special Criminal Court in 2019 for the murder of dissident republican Peter Butterly (35) was he met five others at a KFC restaurant in Charlestown Shopping Centre, Finglas, the day after the fatal shooting.
Mr Butterly was shot dead in the car park of the Huntsman Inn pub in Gormanston, Co Meath, on March 6, 2013.
The listening device used by gardaí recorded “audible utterances” between the men in KFC suggesting they were concerned as to why the Huntsman Inn had been saturated with gardaí the previous day and questioning why every move they made was being followed.
Gardaí had used legislation under the Criminal Law (Surveillance) Act 2009 that allows a superior garda to authorise the use of a listening device without making an application to a District Court judge where a delay might cause evidence to be lost.
Mr McGillicuddy said the superintendent who authorised the surveillance was in Laytown, Co Meath, when he became aware of the meeting in Charlestown.
Counsel said the superintendent could have sought authorisation a short distance away at Balbriggan District Court, which was sitting at the time.
He also said there was a “degree of doubt” as to the urgency with which gardaí acted.
Mr McGillicuddy said that if the appeal court found that the authorisation was not lawful then the deployment of the device should be viewed as an unconstitutional breach of his client’s privacy rights.
The barrister said a person had an expectation that their private conversations would not be recorded by an agent of the State, even in a public place, unless there was a lawful reason.
Anne-Marie Lawlor SC, for the Director of Public Prosecutions, said the superintendent had become aware at 11.50 in the morning that there was an opportunity to record the activities of the criminal group, so he put measures in place.
The suggestion that he should have got in his car and driven to Balbriggan was properly considered by the trial court and rejected, she said.
“There is nothing to suggest the court did anything wrong in that regard,” Ms Lawlor said.
She also questioned what privacy rights a person could expect while talking in a KFC restaurant.
On the first day of Braney’s appeal, his lawyers had asked the court to consider whether the trial court should have admitted the evidence of David Cullen, an accomplice who was charged with Mr Butterly’s murder before turning State’s witness.
Cullen pleaded guilty to a firearms offence and received a sentence of three years and six months. He was also admitted into the witness security programme.
Bernard Condon SC, for Braney, said the court should not have relied in any way on the evidence of Cullen, a perjurer and liar “of monumental proportion” who accepted that he would happily lie in his own interests.
Cullen’s evidence at the trial was that members of the murder gang, including Braney, met at his home in Brackenwood, Balbriggan, the night before the murder. Cullen said he overheard Braney tell another member of the gang: “Make sure this is done right and he [Butterly] doesn’t get away.”
At the Court of Appeal Ms Justice Isobel Kennedy, sitting with Mr Justice Michael MacGrath and Mr Justice Brian O’Moore, reserved judgment.
Mr Butterly, was lured to a meeting at the Huntsman Inn on March 6, 2013, where he was chased and shot dead in the car park in view of students waiting for their school bus. The father of three died from gunshot wounds to his neck and upper back.
Braney (49), of Glenshane Crescent, Tallaght, Dublin 24, was found guilty by the three-judge, non-jury Special Criminal Court in February 2019 of murder.
Before that conviction, Braney was sentenced in 2018 to four years and six months after he was found guilty of IRA membership by the Special Criminal Court.
Edward McGrath (42), of Land Dale Lawns, Springfield, Tallaght, Sharif Kelly (54), of Pinewood Green Road, Balbriggan, and Dean Evans (32), of Grange Park Rise, Raheny, all Dublin, received life sentences at the Special Criminal Court for Mr Butterly’s murder.
Evans and McGrath were the gunmen who ambushed Mr Butterly, but the Special Criminal Court heard it was Evans who fired the three fatal shots. Kelly was to be the driver of the getaway car, but was caught by gardaí when he arrived at the meet-up point.
