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Sunday 26 May 2019

Setbacks plagued trial, but mystery surrounds what brought it down

Patrick Hutch had denied murdering David Byrne
Patrick Hutch had denied murdering David Byrne

The Regency Hotel murder trial was plagued by setbacks from an early stage, but the ultimate deciding factor in its collapse remains shrouded in mystery.

When the charges were withdrawn yesterday, prosecutor Sean Gillane would say only that the death of lead investigator Det Supt Colm Fox had left him unable to "lead evidence on a number of evidential topics".

Mr Gillane did not elaborate on why a nolle prosequi was being entered, and the DPP does not normally give a reason for such a decision.

However, it is usually based on a problem with the evidence put together by the State.

Infamous

The first major challenge faced by the prosecution came in January last year, after only four days of evidence in the trial, with protracted legal argument over the admissibility of the now-infamous press photo of a gunman in a woman's wig.

In a voir dire, or preliminary examination, Det Gda Fergal O'Flaherty and Det Gda Jonathan Brady said they had identified Patrick Hutch as the man in the wig. The method of that identification came under intense scrutiny.

The gardai said Det Sgt Patrick O'Toole had brought them to a room at Ballymun Garda Station, which was manned by Gda Michael Ryan.

All four said detectives O'Flaherty and Brady named Mr Hutch separately, while the defence claimed there was evidence they did so in each other's presence, which could have compromised their identifications.

Ultimately, the court ruled - on February 2 last year - the identification was admissible.

Mr Justice Tony Hunt said the court was satisfied detectives O'Flaherty and Brady had separately identified the person in the photo as Mr Hutch, and there was "no basis of contamination by nomination".

The late Det Supt Colm Fox
The late Det Supt Colm Fox

However, before the trial could resume, the defence sought disclosure of emails between the gardai.

"This is all very mysterious and elliptical," Judge Hunt remarked at the time.

Michael O'Higgins, defending, explained that an issue had arisen in relation to garda statements, matters that were omitted and new statements that came together and "hit every single note on the scale".

He had made a case in legal argument that the statements were a "blatant and obvious cog from one to the other", which was not accepted by the prosecution.

Mr O'Higgins said he was looking for material in relation to "contact they may have had with regard to those statements".

Three days later, on Saturday, February 10 last year, Det Supt Colm Fox was found dead at Ballymun Garda Station.

His official firearm was recovered at the scene, foul play was not suspected and it was treated as a personal tragedy.

The case was adjourned, and on February 19 the court heard new material had come to light that presented "unprecedented conundrums" for the prosecution. Again, there were no specifics.

Three days after that, notes "authored by" the late Det Supt Fox were handed in to court and another adjournment was requested.

Proceedings were repeatedly delayed for the remainder of 2018 for an investigation into the circumstances surrounding Det Supt Fox's death to take place, with Mr Hutch expressing his "frustration" through his lawyers at one stage.

Watching

The Garda Siochana Ombudsman Commission (GSOC) confirmed yesterday it was investigating "the circumstances giving rise to the death of the late Det Supt Fox" in light of the decision to withdraw the State's case against Patrick Hutch.

It said that in the aftermath of the detective's death, officers attended the scene and were briefed on events at the station before opening an examination.

GSOC had kept a "watching brief" during the Special Criminal Court murder trial, but following its collapse yesterday it has now moved the examination to an investigation.

They added that "the ability to conduct a proper oversight investigation of these events will be dependent on the cooperation given to GSOC by the gardai and other agencies".

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