The circumstances in which two detectives identified Patrick Hutch as the man dressed as a woman and holding a gun in a photo taken outside the Regency Hotel on the day of a fatal shooting there were "sullied and tainted", the Special Criminal Court has heard.
Mr Hutch (25) of Champions Avenue, Dublin 1, is pleading not guilty to the murder of Mr Byrne (34) at the Regency Hotel in Dublin on February 5th, 2016.
He also denies possessing three AK47 assault rifles in connection with the shooting.
It is the prosecution’s case that Mr Hutch was the man dressed as a woman and that he did not shoot Mr Byrne but was part of a “shared intention” to commit the offence.
The shooting took place during a boxing weigh-in at the hotel, the court has heard, when the man dressed as a woman and another wearing a flat cap, armed with handguns, followed by three people dressed in tactical-style garda uniforms and carrying assault rifles, raided the venue.
The court has been listening to objections to evidence that two detectives, Fergal O’Flaherty and Jonathan Brady, identified Mr Hutch as the man dressed as a woman after they had looked at the picture in Ballymun garda station two days after the fatal shooting.
Both detectives have told the court that they made the identification separately. They also testified that they knew Patrick Hutch since 2014, when he was injured in a shooting.
Counsel for Mr Hutch, Michael O’Higgins SC, submitted on Monday to the three judges that the identification process was “sullied and tainted” .
The defence was objecting to the identification on the basis of “flawed” evidence and “unfair” procedure, the court heard.
Mr O’Higgins said the court cannot be satisfied beyond reasonable doubt of the prosecution’s version of events and that the effect of not being convinced is that the identification is “sullied and tainted and unsatisfactorily explained”.
The net effect of this, the barrister said, is that the identification should be excluded.
Mr O’Higgins said there was “a significant lacking in fair procedure in how the identification was recorded and carried out” and that “what did or didn’t happen” in Ballymun garda station was a “dog’s dinner”.
He said that the failure to keep records was “itself an unfairness” and that “many hundreds” of gardaí saw the photograph but “we don’t know who they are”.
Mr O’Higgins said it could not be ignored that “Hutches were in the frame from the get-go” and that the two detectives who made the identification had a “particular line into the family through Patrick Hutch”.
The barrister also referred to the various statements and accounts given by the detectives about the identification, noting “omissions” from statements where the detectives did not refer to the circumstances of the identification.
He also mentioned a bail hearing for Mr Hutch from December 2016 when Det Garda Brady gave a version of events which “concedes” the detectives made the identification “in each other’s presence”.
Earlier, the court had heard evidence from four gardaí who said that they had previous interaction with Mr Hutch but did not identify him in the photo.
Garda Kevin Keys told Mr O'Higgins he had "some involvement" in an investigation after Mr Hutch had been shot in August 2014.
The court heard that Gda Keys visited and spoke to Mr Hutch in hospital.
Mr O’Higgins put it to the garda that the day after the shooting at the Regency he looked at a photo of the man dressed as the woman but was not in a position to identify him.
The garda said he “didn’t know him well enough”.
Garda Alan Flaherty told the court that in September 2011 he interviewed Mr Hutch. He said that he looked at the photograph from the Regency in Coolock garda station but did not identify the accused.
Garda Caitriona Brody told the court that in 2014 she made a record of Patrick Hutch in the Garda’s Pulse system.
The court heard there were people in conversation around Rory O’Connor House, a flat complex in Dublin, when Mr Hutch and another person moved to walk away as gardaí approached.
The garda agreed with Mr O'Higgins that the accused man was the brother of Derek 'Del Boy' Hutch, in prison since 2009 serving a "lengthy sentence", and Gary Hutch, who was released from jail in 2007 and then spent the "bulk of his time" in Spain until his "untimely death" in August 2015.
She saw the photo but did not make an identification, the court heard.
Garda Paul Caffrey told the court that he is a juvenile liaison officer in the inner city and he knew Gary and Derek ‘Del Boy’ Hutch when they were young and “would have been in the family home” in north Dublin.
He said that in October 2015, as part of his garda duties, he attended the funeral of Gary Hutch and shook hands with members of the family, including Patrick Hutch.
The court heard Garda Caffrey also looked at the photo but did not make any identification.
The submissions continue on Tuesday in front of Mr Justice Tony Hunt, presiding, sitting with Judge Patricia Ryan and Judge Ann Ryan.