The Special Criminal Court has been asked to direct a finding of not guilty in the case of three men charged with murdering dissident republican Peter Butterly.
An amended application was made to the non-jury court today by lawyers for the accused following the disclosure of privileged information in the current trial to lawyers acting on behalf of accused men in a separate trial.
Peter Butterly was shot dead in the car park of the Huntsman Inn, Gormanston, Co Meath around 2pm on March 6, 2013.
Dean Evans (aged 24) of Grange Park Rise, Raheny; Edward McGrath (aged 33) of Land Dale Lawns, Springfield, Tallaght; and Sharif Kelly (aged 44) of Pinewood Green Road, Balbriggan have pleaded not guilty to murdering the 35-year-old father of two.
Mr Evans and Mr McGrath have also pleaded not guilty to firearm offences on the same occasion.
A fourth man, David Cullen (aged 30), with a last address in Balbriggan, was allegedly “part of the murder plan himself” but turned State's witness against his former co-accused earlier this year.
Mr Cullen has already been dealt with by the court for lesser offences and is currently serving a three-and-half-year prison sentence. He has given evidence implicating the three men.
The three-judge court ruled Wednesday that Mr Evans and Mr McGrath were lawfully before the court despite defence applications to find to the contrary.
However, this application was amended today following the disclosure of previously privileged material contained in a statement made by Mr Cullen to gardaí in July.
Mr Cullen, in the previously redacted portion of his statement, told gardaí that he “distanced” himself from Edward McGrath and he “never really liked him”, the court heard.
The information came to light, the court heard, 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 until one day earlier, but no privilege was being sought in the other trial,” Mr Condon said.
It was inconceivable to say that the previously redacted portion of Mr Cullen's statement was not potentially relevant to the case, Mr Condon submitted.
He said the matter was “incredibly important” and indicated an alleged motivation on the part of Mr 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 on the charges against their clients. Failing that, they asked the court to exclude Mr Cullen's evidence and failing that, they asked for a retrial.
Counsel for Dean Evans, Philipp Rahn BL, said the disclosure was made after his instructing solicitor had been briefed in another case and “alarm bells” started ringing.
“Arising out of that disclosure was made. The fact they are now being disclosed meant the prosecution now deems them to be disclosable,” Mr Rahn submitted.
“If it wasn't for this fortuitous happenstance,” Mr Rahn said, nobody would be the wiser.
Counsel for the Director of Public Prosecutions, Alex Owens SC, said his side accepted responsibility for an “obvious mistake” and “of course, the document should have been disclosed”.
Mr Owens said the defence had plenty of time to recall Mr Cullen for further cross examination and anything the document now disclosed was capable of being put to him.
“In essence,” Mr Owens said, Mr Cullen “didn't particularly like Mr McGrath. That's the height of it”.
Ms Justice Deirdre Murphy, presiding alongside Ms Justice Margaret Heneghan and Judge Cormac Dunne, said the non-jury court expected to have a ruling on the matter tomorrow.
The trial, which is entering its 55th day, has heard that Mr Butterly was ‘lured’ to the pub’s car park that day by another man not before the court.
Shots were discharged at Mr Butterly’s vehicle. Further shots were discharged when he attempted to flee his car.
He was found by a lone garda collapsed in a corner of the car park and was pronounced dead a short time later.