Two men are seeking to have their convictions for the murder of dissident republican Peter Butterly overturned in a five-day hearing before the Court of Appeal.
Sharif Kelly’s legal team on Monday submitted that the evidence given by former murder accused-turned State witness David Cullen to the Special Criminal Court was not capable of being relied on.
Mr Butterly (35), was chased and shot dead outside The Huntsman Inn, Gormanston, Co Meath in view of students waiting for their school bus on the afternoon of March 6th, 2013. The father-of-three died from gun shot wounds to his neck and upper back.
In March 2017 Edward McGrath (38), of Land Dale Lawns, Springfield, Tallaght and Sharif Kelly (50), the getaway driver of Pinewood Green Road, Balbriggan, were convicted by the Special Criminal Court of murdering Mr Butterly. It was their second trial, with the first trial having collapsed in January 2015 after 55 days. McGrath was also found guilty of firearms offences.
David Cullen was originally charged with the murder of Peter Butterly, from Dunleer, Co Louth.
In July 2014, Cullen pleaded guilty to the unlawful possession of a semi-automatic pistol at the Huntsman Inn on the day of the shooting. His plea was accepted by the DPP and a nolle prosequi – a decision not to proceed – was entered on the count of murder and he turned State’s witness. Cullen was sentenced to seven years in prison, with three and a half years suspended, for possession of the firearm in July 2014.
Cullen gave evidence for four and a half days during the trial. His testimony was the focus of three days of legal submissions, during which the defence barristers argued that his evidence was tainted and should have been excluded from the trial.
Opening an appeal against Kelly’s conviction today, Giollaíosa Ó Lideadha SC said the trial judges erred in refusing to find that in all the circumstances, the evidence of Cullen was not worthy of any credit, whether or not that evidence could be regarded as having been corroborated; and in failing to address adequately the matters relevant to his credibility.
The barrister submitted that Cullen was adamant that Kelly attended at his apartment the evening before the murder during which one of the other participants in the meeting discussed with those present the planned killing in explicit terms. Cullen asserted that Kelly had brought him to Gormanstown on the day before the murder whereupon Cullen dug a hole.
Furthermore, Mr Ó Lideadha said that Cullen had dishonestly used “don’t know” and “don’t remember” in the trial and had used “possibly” as an answer when confronted with clear proof; but also used “anything is possible” in order leave open all possibilities and purport to devalue concessions he had made.
The lawyer asked the three-judge court to consider the various factors raised in Cullen’s cross-examination and submitted that it should find that the nature of such evidence was not capable of being relied on.
The remote appeal hearing will continue tomorrow before President of the Court of Appeal Mr Justice George Birmingham, who sat with Mr Justice John Edwards and Mr Justice Patrick McCarthy.