The case against Patrick Hutch will collapse if a ruling on contested evidence identifying him in a photograph favours the defence, the Special Criminal Court has heard.
Mr Hutch is accused of murdering David Byrne at the Regency Hotel in Dublin almost two years ago.
Submissions closed on Tuesday at the three-judge, non-jury court on the admissibility of evidence that two detectives identified Mr Hutch as a man dressed as a woman in a photograph that had been taken outside the hotel on the day of the fatal shooting.
The defence has argued that the circumstances in which Det Garda Fergal O'Flaherty and Det Garda Jonathan Brady identified Mr Hutch were "sullied and tainted".
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.
‘Shared intention’
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.
Det Garda Brady and Det Garda O’Flaherty have told the court that two days after the shooting they looked at a photo and “immediately recognised” the man in a wig as Patrick Hutch.
Both detectives have testified that they made their identifications separately.
Michael O’Higgins SC, for Mr Hutch, has compared the various statements made and accounts given by the detectives on how they identified the accused man to “a dog’s dinner”.
On Tuesday, Mr O'Higgins summarised the defence's version of events, suggesting to the court that the two detectives had gone into the room in Ballymun Garda station and Det Garda O'Flaherty stepped up to the monitor before stepping back and saying to his colleague, "I'll let you look".
He said that Det Garda Brady then stepped up and said, “I know who that is, that’s Hutch”, and that the other detective agreed.
‘Tainted’ evidence
Such an identification would be “tainted”, the court heard.
The barrister later stated that because the two detectives had previous interactions with his client, when they looked at the photo the “most likely of the Hutches they [were] going to pick out [was] Patrick Hutch”.
He submitted that if the court was not satisfied there was an explanation for variations in accounts given about the identification, that was the “end of this case”.
Mr O’Higgins said that the court had been “left in a state of uncertainty about what happened” which extended to “material matters in the case”.
The barrister also submitted that the procedure was “scrupulously unfair”.
“It was whatever you’re having yourself,” he said. “You simply have a bare assertion — ‘it’s him’.”
The court heard that “99.6 per cent” of the nearly 200 gardaí who looked at the photo did not recognise Mr Hutch.
Sean Gillane SC, prosecuting, submitted that the context of the identification was relevant. He said that “outside of paramilitary atrocities”, the shooting at the Regency was “unprecedented”, involving an attack in the middle of the day with assault rifles at a hotel in Dublin city.
He said that the two detectives knew “little or nothing” about the wider investigation.
The court heard that while much had been made in the media of the Hutch-Kinahan background, it was “certainly never accepted in evidence that the detectives were going to the Garda station to identify a Hutch”.
‘Number of Hutches’
The barrister refuted the suggestion that if a Hutch was going to be identified, it was going to be the accused.
He said the evidence was that a “number of Hutches” were the focus of investigation and that all of the evidence in the case, “much of it uncontradicted”, was that nobody knew who the two people in the photo were, which is why procedures were adopted to find out who they were.
Mr Gillane said the evidence from Det Garda Brady was that few gardaí would have known Patrick Hutch prior to 2014.
Referring to the first statements made by the two detectives on February 12th, 2016, the barrister said the defence’s argument was that the statements were “the same if you ignore the bits that are different” and the similarities were “proof of some form of collusion”.
Mr Gillane said the inference to be drawn from variations in the detectives’ statements was not one of “collusion or skullduggery”.
Addressing the defence’s submission that the procedure was unfair, Mr Gillane said the court had the footage and was in “much better position to assess the evidence of the two detectives”.
He also said it was “quite clear” on the evidence of the detectives that their knowledge of Mr Hutch was “quite specific and over a longer period of time” as opposed to some of the evidence of other gardaí, who said they knew the accused man but did not identify him.
On close of submissions, Mr Justice Tony Hunt, presiding, sitting with Judge Patricia Ryan and Judge Ann Ryan, said the court will rule on the matter on Friday week.
He explained that there was “a lot of complex detail to be looked at” and that with three judges the “process of decision-making is invariably longer”.
Mr O’Higgins then applied to the court that the judges’ decision be unanimous.
Mr Justice Hunt said that it would be a “decision of the court”.
The judge then asked Mr Gillane if the court’s decision goes against the prosecution would that be the “end of the matter”.
The barrister said, “Yes.”
The trial has been adjourned until February 2nd, when the court rules on the issue.