Barristers for Jason Bonney and Paul Murphy have asked the Special Criminal Court to rule inadmissible evidence of their first interview
Barristers for Jason Bonney and Paul Murphy have asked the Special Criminal Court to rule inadmissible evidence of their first interviews by detectives, as well as further questioning after their arrest.
They argued their detention at a garda station over the murder of David Byrne was "rubber stamped," based on "tainted" and incorrect information.
The prosecution said the accused had both consented to speaking to gardai, who were later "utterly justified" in detaining them based on "ample" evidence.
The three-judge court will rule on the defence's legal challenges next week.
Mr Bonney and Mr Murphy are accused of driving two of the cars in a convoy that took the Regency gunmen away after the murder, helping them escape. They are on trial along with Gerard “The Monk” Hutch.
While Mr Hutch is charged with Mr Byrne's murder, Mr Bonney and Mr Murphy are accused of facilitating the killing by providing the perpetrators with access to vehicles.
Mr Byrne (33), a Kinahan gang member, was shot dead when three assault rifle-wielding masked gunmen, disguised as ERU gardai, stormed the Regency in north Dublin along with an armed man dressed as a woman in a blonde wig, and another in a flat cap.
The February 5, 2016 attack on a boxing weigh-in event happened as a bloody feud raged between the capital's Kinahan and Hutch gangs.
Mr Hutch (59), of The Paddocks, Clontarf, Dublin, Mr Murphy (61) of Cherry Avenue, Swords and Mr Bonney (51) of Drumnigh Wood, Portmarnock, deny the charges against them.
The Regency attack team are alleged to have arrived at and fled the scene in a silver Ford Transit van.
Mr Murphy’s Toyota Avensis taxi and Mr Bonney’s BMWX5 jeep are both alleged to have been part of a convoy that parked up at nearby St Vincent’s GAA club grounds before the attack and transported the assassination team away after they abandoned the Ford Transit.
Evidence of Mr Murphy and Mr Bonney’s arrest and interview was heard over the last two days of the trial.
Yesterday, John Fitzgerald SC, for Mr Bonney, argued that his client’s first interview was unfair because he was not cautioned about his rights or that his replies could be used in evidence.
Mr Fitzgerald said this “relatively formal” conversation with gardai was held in Mr Bonney’s kitchen on February 21, 2016.
The gardai should have cautioned him before conducting that question and answer session, he said. It should have been signed but was not, Mr Fitzgerald said.
“That fed into what happened thereafter,” he said, when on May 27, 2016, Mr Bonney was arrested and a significant part of that arrest was an alleged discrepancy between his February 21 account and the movements of the vehicle on CCTV, Mr Fitzgerald said.
That in turn “tainted” Mr Bonney’s detention because again, the material that was “obtained unfairly” was used at least in part to detain him.
The detention was also based on a “very significant factual error.”
Part of the grounds was that Mr Bonney was seen with his jeep at “other locations for which he had not accounted.”
The court was in a position to see on the CCTV evidence “that that was simply wrong,” Mr Fitzgerald said.
It was clear that the BMW was seized because gardai believed it was connected a serious offence, he said. It was very difficult to square that with the failure to caution Mr Bonney.
Det Gda Alan Crummey, now retired, who spoke to Mr Bonney on February 21, 2016, had been given a jobs book that told him to administer a caution but he “quite clearly didn’t read” it, Mr Fitzgerald said.
Det Gda Crummey had explained this “rather casually as being a mistake.”
Zet Gda James Duffy who accompanied him had also not read the jobs book and Mr Fitzgerald said it was “extraordinary” for two gardai in an important investigation not to take the time to do this.
It “simply beggars belief”, he said and one would have thought they shouldn’t even have to have been told to administer a caution.
A vehicle that was at the centre of the CCTV footage had been seized and it should have been self-evident that a caution would be required, he said.
It was not an informal chat and the failure to caution Mr Bonney was not a simple mistake but a “very grave error.”
After Mr Bonney was arrested, the grounds for detention centred around the BMW and alleged inconsistencies between what was said on February 21 and what was seen on the CCTV. The unfairness from that conversation “fed into” the manner in which the information was used, Mr Fitzgerald said.
The “casual attitude” displayed by the gardai on February 21 was again exhibited in an exchange between arresting officer Detective Sergeant Patrick O’Toole and member in charge at Ballymun garda station, Detective Sergeant John Collins.
Det Sgt Collins had been told Mr Bonney was seen with the jeep at a number of locations but this was wrong and the court had viewed CCTV where he was not seen with the jeep other than outside his home at Drumnigh Wood, Mr Fitzgerald said.
He asked the court to rule inadmissible not just the initial questioning of Mr Bonney on February 21 but also “the fruits of the unlawful detention on May 27.”
Bernard Condon SC, for Mr Murphy said he was adopting Mr Fitzgerald’s submissions.
He said when the first interview with his client took place, the garda knew his car had been seized.
As in Mr Bonney’s case, he said, the jobs book gave a direction to interview Mr Murphy under caution, which was not complied with.
Det Gda Crummey had said he misread the document but Mr Condon said it was surprising that he would have misread both jobs books.
The caution should have been administered anyway as Mr Murray was a suspect, he said.
That “substantial failure” meant the interview ought to be excluded, he said.
The fact that it was read over to him on a later date did not resolve the issue, Mr Condon said.
He said Mr Murphy was cautioned in his second interview in a hotel on March 3, 2016 but he argued this interview should have been conducted under detention.
Det Gda Crummey had not explained to Mr Murphy why this interview was under caution and the first was not.
The third interview again in a hotel on March 9, 2016 was a “highly unusual meeting” in which gardai produced exhibits and it was not in a controlled environment.
When Det Sgt Brian Hanley arrested Mr Murphy, he said it was for “involvement” in murder which was not a specific criminal offence.
What Mr Murphy was being arrested for was not as clear as it ought to be, Mr Condon argued, and an arrest was only lawful if the person knows why they are being arrested.
He argued the grounding of Mr Murphy’s detention by then-Det Sgt Alan Govern at Ballymun garda station amounted to a “rubber stamping” and said the court could not “fill in blanks” in the information.
The court heard a swipe card had been found in Mr Murphy’s taxi that was part of the investigation.
Mr Condon said the power used by the gardai to seize that car did not extend to searching it. Privacy rights attached to a car, he said.
He also asked the court to exclude Mr Murphy’s “thank God” comment after the gardai came to seize the car, saying he again should have been cautioned because he was “in the category of suspect.”
In reply, prosecutor Sean Gillane said Mr Bonney’s first interview was a “domestic” exchange. Det Gda Crummey had asked permission to speak to him and write down his answers and Mr Bonney agreed.
Whether it was signed was beyond the control of the garda. It was read back to Mr Bonney and he was asked if it was an accurate reflection of what he said. He told the garda he was happy with it, Mr Gillane said.
Mr Gillane said it was not legally the case that what was in a first statement “contaminated” everything else.
He said what was at issue in administering a caution was the state of mind of the questioner.
As far as Det Gda Crummey had been concerned, Mr Bonney was not a suspect at the time of the first interview and he thought he was on a “fact finding mission.”
When Det Gda Crummey openly accepted his “mistake” in not cautioning Mr Bonney, that was not an admission of a legal wrong but simply that he had misread the instruction.
Mr Bonney had gone on to say he wanted to “rely on” what he had said in the interview, so the complaints of unfairness were “entirely unjustified,” Mr Gillane said.
Any one of the strands of information given by Det Gda Crummey to Det Sgt Collins merited a rational decision to detain Mr Bonney, he said.
Mr Bonney had accepted he was seen at his car at Drumnigh Wood that morning, and if there was “some inadvertent error” in reference to him being seen at other locations, it was “of no moment” in relation to the substance of what was put before Det Sgt Collins, Mr Gillane said.
“There was ample material before him to justify the decision to detain the accused,” he said.
It was “rational and reasonable” for the gardai to chase up someone connected to a car that was “central to the murder.”
On Mr Murphy’s challenge, Mr Gillane said he also had the memo of his first interview read over to him.
The fact he signed it was “powerful” evidence that he accepted it as accurate.
The hotel location of the next two interviews were at Mr Murphy’s suggestion and he was comfortable there, Mr Gillane said.
He was cautioned and again had the memos read over to him, and there was “nothing wrong with any of that.”
On the use of the phrase “involvement in” murder, Mr Gillane said Mr Murphy was on the record as having understood what he was arrested for.
Det Sgt Hanley’s application for detention was a lengthy and thorough setting out of the information he had at the time and he showed footage to Det Sgt Govern on a laptop.
To refer to this as a rubber stamp was “utterly unjustified,” Mr Gillane said.
On the search of the taxi, he argued that a necessary implication of its seizure for use in evidence was that it would be searched, otherwise it made “no sense.”
Mr Murphy’s “thank God” remark was spontaneous, he said.
Evidence in the trial is due to continue tomorrow before Ms Justice Tara Burns, Judge Sarah Berkeley and Judge Grainne Malone.