The man accused of murdering Detective Garda Adrian Donohoe could be found guilty of manslaughter if the jury finds that he killed the garda but only intended to fire a warning shot, the Central Criminal Court has heard.
Aaron Brady's barrister Michael O'Higgins SC told the jury that his client did not shoot Det Gda Donohoe and was not involved in the robbery that led to his death.
But counsel also told them that if they believe the prosecution case that Mr Brady was the gunman, they should consider that, "if a shot is fired as a warning that might be reprehensible and results in an unlawful killing, but not murder."
Presiding judge Mr Justice Michael White, beginning his charge to the jury, said that a manslaughter verdict is possible but would be "unusual" given the circumstances. He said that is just his opinion and it is open to the jury to find that the gun was fired as a warning or accidentally and to bring a verdict of manslaughter.
Aaron Brady (29) from New Road, Crossmaglen, Co Armagh has pleaded not guilty to the capital murder of Det Gda Adrian Donohoe who was then a member of An Garda Siochana on active duty on January 25, 2013 at Lordship Credit Union, Bellurgan, Co Louth.
Mr Brady has also pleaded not guilty to a charge of robbing approximately €7,000 in cash and assorted cheques on the same date and at the same location.
Mr O'Higgins finished his closing speech today, telling the jury that there are multiple possible verdicts open to them. The prosecution case is that Mr Brady is guilty of robbery and capital murder but a verdict of guilty of robbery and ordinary murder is also possible.
Mr Brady could be guilty of robbery and manslaughter or guilty of robbery only. If he is not guilty of robbery, Mr O'Higgins said, then it would follow that he is not guilty of anything in relation to the death of Det Gda Donohoe.
Counsel said he has put the case as strongly as he could that Mr Brady was not involved in the robbery or the shooting of Det Gda Donohoe.
But if the jury finds Mr Brady was involved in the robbery Mr O'Higgins asked them to consider the evidence of Detective Garda Joe Ryan who was at the scene and described the shooter as being six feet one inch tall.
Mr Brady has been measured at different times at five feet seven inches to five feet nine inches.
To be convicted of capital murder the jury must be satisfied beyond reasonable doubt that Mr Brady was the shooter and that he knew he was shooting a garda who was acting in the course of his duty or was reckless as to whether he was a garda.
Mr O'Higgins reminded the jury they had heard evidence that the raiders who approached gardaí shouted "Give me the money, give us the money," and "give us the keys, give us the money."
Counsel asked the jury: "Is that consistent with knowing that these people were guards?"
Mr O'Higgins also questioned the evidence of prosecution witness Det Gda Seamus O'Donnell who said that he believed the shooter was six feet away from Det Gda Donohoe when the shot was fired.
Mr O'Higgins said CCTV footage suggests it was "more like nine or ten feet" using the length of the garda car as a guide. He also pointed out that the shooter's reaction to the recoil of the gun suggests that the shooter was inexperienced with a firearm.
Mr O'Higgins also criticized the garda investigation, asking the jury why they had not investigated his client's links to diesel laundering on the night Det Gda Donohoe was shot. He accused the prosecution of coming to court with a "sculpted case" that is selective and highly editorialised.
Evidence relating to fuel laundering, counsel said, was only available to the jury because the defence had presented it. He criticized retired former detective inspector Mr Pat Marry, who he said had failed to follow up on evidence that Mr Brady was laundering diesel in south Armagh at the relevant time because he "believed" Mr Brady was at Lordship Credit Union.
Counsel said: "That's the antithesis of investigation, the polar opposite. Imagine a solicitor taking a case for a client based on what he believes happened."
Mr O'Higgins also criticized gardaí who investigated a report of a rumour that Mr Brady was laundering diesel that night with another known diesel launderer.
Counsel said the garda came back with a report but didn't find out where the information had come from or whether it was a reliable source or whether it was second, third or fourth hand information.
Mr O'Higgins read from Mr Marry's own book in which the former inspector detailed the importance of closing off every angle in an investigation, even if it seems far-fetched. Counsel asked the jury to consider if such high standards were applied in this investigation.
Mr O'Higgins referred to his client's comment during cross examination that he is a "victim", which counsel said "got a lot of traction and was the subject of a lot of comment."
Mr O'Higgins said his client is entitled to the presumption of innocence and that all he was doing was, "having the temerity to say, I not only have the presumption of innocence but I am actually innocent."
Mr O'Higgins suggested that the cross examination of Mr Brady was carried out to create "a set of circumstances where you might be inclined to dislike him. I ask you not to go down that road because it's not profitable in terms of the task before you."
Mr O'Higgins also defended the decision not to serve a notice of alibi until last September when the trial was originally due to begin in October. He said the defence was still waiting on disclosure from the prosecution and described as "hideous" the idea that they should advise their client to rely on a notice of alibi without knowing the prosecution's case.
Counsel told the jury that they should not be swayed by the "black moral cloud" hanging over the case. He reminded them that the prosecution must prove its case beyond reasonable doubt and asked them to be sure of their verdict.
A time will come, he said, when they are reading a paper or walking the dog, and they will look back on the time they spent in the Central Criminal Court.
He added: "You have got to say to yourself when that moment comes, 'I don’t have a niggling doubt that I didn’t do the right thing.'"
Every juror, he said, has a voice and should use it. In conclusion, Mr O'Higgins described the circumstantial evidence put forward by the prosecution as "smoke and mirrors. There's smoke, but where's the fire? Is the centre of the fire where the prosecution says or is it somewhere else?"
He asked the jury to stress test the prosecution case and say : "Has the prosecution proved its case beyond reasonable doubt? In my respectful submission, it has not."
Mr Justice White will continue his charge to the six men and seven women of the jury tomorrow.