Judges refuse to acquit suspect charged with conspiracy to murder
Judges have said it would be "novel and startling" for surveillance officers' evidence to be excluded over their failure to take notes of sightings during a Kinahan cartel conspiracy to murder investigation.
The non-jury Special Criminal Court also refused to grant a direction to acquit accused Liam Brannigan (37) of conspiring to murder Gary Hanley at a location in the State between September 15 and November 6, 2017.
Mr Brannigan, of Bride Street, Dublin 8, has pleaded not guilty to the charge.
Three men - Joseph Kelly, Luke Wilson and Alan Wilson - have previously all pleaded guilty to the same offence and been jailed.
The three-judge court has heard that six vehicles were bugged by gardai during the investigation into the plot to kill Mr Hanley.
It has also heard from surveillance gardai about observations of men using those vehicles; conversations recorded within those vehicles; and evidence from an expert who attributed some of the conversations to phones associated with Mr Brannigan, Joseph Kelly, Luke Wilson and Alan Wilson.
Presiding judge Mr Justice Paul Coffey delivered the court's ruling yesterday following a legal application by Giollaiosa O Lideadha, for Mr Brannigan, to grant a direction of acquittal on the single charge of conspiracy due to insufficient evidence to support the charge.
In his ruling, Mr Justice Coffey said the defence had submitted that surveillance officers' "policy" not to take notes of sightings during the conspiracy to murder investigation could not be "let slide" as it did not meet "minimal standards of fairness and admissibility" and therefore should be excluded.
Mr O Lideadha submitted that some surveillance gardai "came up with facts and details" when they were in the witness box, which were not previously noted in statements.
He also argued that some gardai told the court they made identifications when they had not done so and instead referred to other sources and other materials and retrospectively asserted an identification.
The barrister explained that the fundamental question facing the three judges of the court was whether the surveillance gardai took "reasonable and practical" steps "to gather evidence in a fair and transparent way" which allowed for a fair trial. He emphasised that, by not taking notes, most of the surveillance gardai did not take these steps.
In his ruling, Mr Justice Coffey said it was inherent in the evidence that the relevant observations were made for the purpose of gathering intelligence and not for the purpose of investigating crime that had already been committed.
"In the view of the court, it would be novel and startling that evidence of any person witnessing activity could be rendered inadmissible for not taking notes," the judge said.
As a result, the judge said the court rejected the proposition that surveillance evidence should be excluded due to surveillance witnesses failing to take notes.
Mr Justice Coffey, sitting with Judge Sinead Ni Chulachain and Judge James Faughnan, remanded Mr Brannigan in custody until February 3, when the court will deliver judgment.