Peter Butterly murder trial collapses

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 today said the non-jury court had concluded the appropriate order was to discharge itself as a jury and order a retrial of Dean Evans, 24, Edward McGrath, 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 Road, Balbriggan had pleaded not guilty to murdering the 35-year-old father of two.

Peter Butterly 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 had 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 come to 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.

David Cullen, 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.

Gardaí and the Prison Service put extra security arrangements in place for Cullen’s evidence during the trial, which caused long queues to form outside the Criminal Courts of Justice in Dublin.

Cullen has already been dealt with by the court for lesser offences and is currently serving a three-and-half-year prison sentence. He had given evidence at the trial implicating the three men.

The court heard earlier this week that 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 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 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.

In today’s ruling, 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, the judge 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 their right to cross-examine David 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 the cross-examination of David Cullen and “no single issue has taken up more of our time”.

She said the court concluded that recalling David Cullen to be cross-examined would not address its concern as to the integrity of the disclosure process.

“Fundamental in the court’s view is that this proven failure raises a doubt in the court’s mind on the integrity of the disclosure process,” Ms Justice Murphy said.

However, as per Mr Condon’s submission “this appears to have arise from a want of care rather than by any mala fides (bad faith),” the judge said.

She said that compliance with disclosure requirements is a “complex legal issue” that “demands oversight by lawyers”, and in the court’s view those obligations are not satisfied “merely by reviewing evidence or information provided by the gardaí.”

Had such oversight been in place “weeks of court time could have been saved” and the “serious error” that arose in the trial could have been avoided.

In this case, the judge said, the primary responsibility for compliance with disclosure requirements appeared to have been delegated by the prosecuting authorities to gardai, which in the court’s view was “both inappropriate and unfair”.

Ms Justice Murphy said the court had also been given no explanation as to “how precisely the failure of disclosure occurred”. She said the court was told that a version of the statement with some, but not all, of the disclosable material revealed was sent to the DPP.

However, there was no explanation as to how a fully redacted version of that portion of the statement was afterwards served on the defence.

“This proven unexplained failure [in disclosure] has created a doubt in the court’s mind as to the efficacy of the entire disclosure process in this trial,” Ms Justice Murphy said.

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.

The trial heard that Mr Butterly was ‘lured’ to the pub’s car park on March 6, 2013 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.