Report could have 'influenced' garda, says Hutch defence
One of the gardai involved in the identification of Regency Hotel gun murder accused Patrick Hutch Jnr from a photograph taken at the scene could have been "influenced" by a media report about the trial, the defence has claimed.
Garda Michael Ryan, who showed two detectives the photograph of a man in a wig for identification, said he could "safely say that he did" read the Independent.ie article, which detailed their evidence, before he gave his own testimony.
However, he said he had no "specific memory" of it and that while the defence said he was "centre stage" in the identification, he said he himself believed he had a minor role and was a "button pusher".
Judge Tony Hunt said he was allowing Gda Ryan's evidence to be heard during ongoing legal argument at the non-jury Special Criminal Court over the admissibility of the garda identification evidence.
Mr Hutch (25), from Champions Avenue, in the north inner city, is pleading not guilty to murdering David Byrne (33), from Crumlin, and possession of three assault rifles.
Mr Byrne was shot dead by a "tactical team" of gunmen dressed as gardai, who stormed the hotel along with a man wearing a wig and another in a flat cap.
Prosecutors claim Mr Hutch was identified as the man dressed as a woman.
They do not allege the accused shot Mr Byrne but that he participated in the February 5, 2016, gangland raid and shared intent to commit the crimes.
The court has heard detectives Fergal O'Flaherty and Jonathan Brady identified Mr Hutch in the photo when Gda Ryan showed it to them at Ballymun Garda Station on February 7, 2016.
Det Sgt Patrick O'Toole had taken the two detectives for the viewing.
All gardai have insisted Mr Hutch was named separately by the two detectives, while the defence contends that they named him in each other's presence.
The court has heard individual viewing of a photograph for identification is considered important as a "safeguard" so one viewer cannot influence another.
Michael O'Higgins SC, defending, argued Gda Ryan's evidence could be compromised if he had read an Independent.ie report of the legal argument. He said he was not criticising the media but thought it was an "unusual procedure" to report legal argument.
He then read from the report of the detectives' evidence and said it was "the answer, the magic bullet" that the prosecution was relying on.
"My concern is if the witness has seen this and now comes to court with an explanation, knowing exactly what the issues are, it's unfair," he said.
Sean Gillane SC, prosecuting, said he had no knowledge until the night before that the legal argument was being reported on. He said there had been no tactical decision to call Gda Ryan when he did.
Mr O'Higgins said he understood Gda Ryan was always going to be called as a witness but he was not on notice of the material he was going to "unleash" in evidence.
He said it was still an unfair advantage, whether by happenstance or tactic.
Judge Hunt said the court was entitled to hear Gda Ryan's evidence.
Gda Ryan said that at around 6.30pm on February 7, 2016, Det Sgt O'Toole came into his office with Det Gda Brady and Det Gda O'Flaherty.
Det Sgt O'Toole introduced him to the two detectives and informed him that they were there to view the image.
Det Sgt O'Toole invited Det Gda O'Flaherty to come around his desk to view the screen, he said.
Det Sgt O'Toole and Det Gda O'Flaherty walked around the desk where they could see the monitor. At this point, Gda Ryan said, he opened the image. Det Sgt O'Toole invited Det Gda O'Flaherty to view it.
"Immediately on viewing the image, Det Gda O'Flaherty stated that he recognised the person on the left," Gda Ryan said.
"He didn't indicate who that person was, nor did he indicate who the person on the right was."
Det Sgt O'Toole invited Det Gda O'Flaherty outside the door. Det Sgt O'Toole remained behind the desk and asked Det Gda Brady to come around the desk to view the image, he said.
Det Sgt O'Toole asked Gda Ryan to show the image to Det Gda Brady and walked out of the room after Det Gda O'Flaherty.
Again, Gda Ryan showed the image first in its entirety, zoomed out.
"Det Gda Brady immediately informed me that he recognised the person on the left as being Patrick Hutch Jnr of Champions Avenue," Gda Ryan said.
"He stated he did not recognise the person on the right."
Gda Ryan said he again zoomed in and again Det Gda Brady stated "that he recognised that person to be Patrick Hutch Jnr".
In cross-examination, he told Mr O'Higgins that when Det Gda Brady made his identification, there was nobody else in the room.
Gda Ryan said he had a minor role, had acted as a "conduit" and was a "button pusher".
Mr O'Higgins later put to him that what actually happened was the account given by Det Gda Brady to the High Court in a bail application by Mr Hutch in December 2016.
In the account, Mr O'Higgins told the court, Det Gda Brady said, "I know who it is", and "announced who it was" in the presence of Det Gda O'Flaherty, who announced the same identification.
"It was part of a single fluid action and it was in each other's presence," Mr O'Higgins said.
Gda Ryan denied this was the case.
"It happened as I have outlined in my evidence and in my statement," he said.
The trial continues on Monday.