The 55-day-long trial of three men charged with murdering dissident republican Peter Butterly has collapsed at the Special Criminal Court, after a failure in evidence disclosure.
Presiding judge Ms Justice Deirdre Murphy yesterday said the non-jury court had concluded that the appropriate order was to discharge itself as a jury and order a retrial of Dean Evans, aged 24, Edward McGrath, aged 33, and Sharif Kelly, aged 44.
Mr Evans, of Grange Park Rise, Raheny, Mr McGrath, of Land Dale Lawns, Springfield, Tallaght, and Mr Kelly, of Pinewood Green Rd, Balbriggan, have pleaded not guilty to murdering the 35-year-old father of two, who was shot dead in the car park of the Huntsman Inn, Gormanston, Co Meath, around 2pm on March 6, 2013.
Mr Evans and Mr McGrath also pleaded not guilty to firearm offences on the same occasion.
After one of the longest-running trials in the Special Criminal Court, Ms Justice Murphy said the court had made its decision “with huge regret due to the time and expense involved in the trial”.
The court delivered its ruling following the disclosure of previously privileged material contained in a statement given by witness David Cullen to gardaí in July 2013.
Cullen, aged 30, was allegedly “part of the murder plan” but turned State’s witness against his former co-accused. He has already been dealt with by the court for lesser offences and is serving a three-and-half-year prison term. He had given evidence at the trial implicating the three men.
The court heard earlier this week that Cullen, in a previously redacted portion of his statement, told gardaí that he “distanced” himself from Mr McGrath and “never really liked him”.
This new information came to light because Mr McGrath’s barrister, Bernard Condon SC, was briefed in another case in which the document was disclosed without redactions.
“This document was privileged but no privilege was being sought in the other trial,” Mr Condon said.
It was inconceivable to say that the redacted portion of Cullen’s statement was not potentially relevant to the case, said Mr Condon.
He said the matter was “incredibly important” and indicated an alleged motivation on the part of Cullen to tell lies.
Mr Condon said his cross-examination rights had been breached, there was a risk that the whole disclosure process has been undermined, and could not be considered “secure or safe”.
Consequently, counsel for each accused asked the court to direct a finding of not guilty. Failing that, they asked the court to exclude Mr Cullen’s evidence and, failing that, they asked for a retrial.
Ms Justice Murphy said: “In the face of such an unexplained failure of disclosure, how can the court be satisfied that there have not been other failures?”
Delivering the ruling, she said the issue of disclosure had “loomed large” from the outset of the trial, and the defence had repeatedly protested that full, proper, and timely disclosure was not being made and consequently that their right to cross-examine Cullen had been impaired.
Ms Justice Murphy said the right to cross-examine one’s accuser is a constitutional right. She said the court had been called on repeatedly to adjudicate on issues of disclosure relating to Cullen’s cross-examination and “no single issue has taken up more of our time”.
Ms Justice Murphy said the court would direct a retrial of all of the accused, and would remand Mr Evans and Mr McGrath in custody and Mr Kelly on continuing bail until Tuesday, when the case will be mentioned again.
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