Statements can be used in evidence, Special Criminal Court rules

The Special Criminal Court has today ruled that statements made by a man admitting his part in the murder of a man in Co Donegal more than three years ago can be admitted in evidence.

Defence counsel for Martin Kelly had challenged three statements made by him to gardaí in which he admitted driving Mr Andrew Burns from Strabane, Co Tyrone across the border to Co Donegal where he was shot dead.

However, today, the three-judge court ruled that the statements, two made while in garda custody and the third to two senior gardaí in the North, were admissible in evidence.

Kelly is on trial for the murder of Mr Burns whose body was found by a group of teenagers in the car park of a church at Donnyloop in Co Donegal in 2008.

It is the prosecution case that Kelly was part of a joint enterprise to lure Mr Burns from Strabane to Donnyloop where he was shot twice.

The shooting was heard by a group of five young people from Clady, Co Tyrone who were walking in the area.

Martin Kelly (aged 36) a bus driver, residing at Barrack St, Strabane, Co Tyrone has pleaded not guilty to the murder of Mr Andrew Burns (aged 27), an unemployed man, at Donnyloop, Castlefin, Co Donegal on February 12, 2008.

Kelly's trial began last month but after two days of evidence the court started a "trial within a trial" to decide on the admissibility of statements made by Kelly while in garda custody in Letterkenny and a statement made by Kelly to two senior gardaí at a hotel in the North.

The "trial within a trial" lasted 12 days and the evidence heard was treated by the court as part of the evidence of the trial proper.

Prosecuting counsel Mr Tom O' Connell SC said that Kelly was part of a joint enterprise or plot to lure Andrew Burns to Donnyloop on the pretext that he was required to go on an IRA operation in which it was intended to murder a PSNI officer who was dating a girl in Donnyloop.

When they got to Donnyloop they were met by three men who were known as members of Oglaigh na hÉireann.

The court was shown a video recording of when Martin Kelly was interviewed by Chief Superintendent Diarmuid O' Sullivan and Superintendent Kevin English at Ballymena in Northern Ireland on March 11, 2010.

He was advised that he could have a solicitor present but he declined and he agreed that he had not been made any promises and that there had not been any threats or inducements.

Kelly said that a week before the murder he was approached by Mr A who asked him to take Andrew Burns to Donnyloop for "a punishment beating or shooting". He met Mr A the next day and he told him that Mr B and Mr C would be there for the shooting.

Kelly told the officers that he knew it was "an IRA operation" and he said he had done other jobs for the IRA but had never been sworn in himself.

He said that on the day of the murder he picked up Mr Burns at the KFC in Strabane and drove him in his car to Donnyloop car park.

When they got there he saw a red van, Mr Burns got out of the car went to the van but came back and said the boys in the van were not for him. Mr Burns got back in the car and he (Kelly) drove out of the car park, waited about five minutes and then drove back into the car park.

Mr Burns got out of the car and then Mr A walked past him. Then Mr B approached Andrew Burns and went to pull the trigger of his gun but the gun jammed. Mr Burns started to run towards the car park exit, the gunman, Mr B, ran after him and fired a shot which injured him.

Kelly said that Andrew Burns stumbled but kept running towards the church but Mr B chased him and fired a second shot.

He said that Mr A, Mr B and Mr C then got back into the car and Mr C shouted at him to keep calm, drive out of the car park slowly and keep the lights off. He said he could see that Andrew Burns had stumbled and was lying on the road at that stage.

Kelly said he drove to Clady village where Mr B handed him the revolver inside a black plastic bag and told him to dispose of it. He put it in the side of a hedge.

He then drove the three men to the Fir Trees Hotel in Strabane where he left them. He told the gardaí that he had known Mr A "all my life", Mr B for 15 years and Mr C for 10 years.

Martin Kelly told the court during the "trial within a trial" that after his arrest when he was taken to Letterkenny garda station he was "in fear for his life".

"There were certain people connected with dissident republicans who were interested to find out what the police were asking me," he said.

He said that he made admissions during his seventh interview with gardaí because just before that he had been in the yard with two detectives and one detective told him they would put it out that he was informer and he would be shot dead.

Asked by his counsel Mr Giollaiosa O'Lideadha SC why he made a statement to the two gardaí in Ballymena, Kelly replied: "I couldn't see no way out. I'd end up being killed and I probably still will end up being killed because I made a statement naming people."

Kelly said that in October 2010 there was an article in a newspaper implying that he was in the Witness Protection Programme. "I believed it could only have come from two sources - the gardaí and the PSNI."

The trial will resume next week.