Gerry “The Monk” Hutch and his four co-defendants in the Regency trial would face “discrimination” if they were not allowed to file a petition to have their charges dismissed, their lawyers have said.
The defendants want the cases against them to be dropped because there is insufficient evidence under Section 4E of the Criminal Procedure Act of 1967
However, the Special Criminal Court must first rule on whether it has jurisdiction to hear the petition.
Lawyers for the defendants have said it would be “absurd” to deny them this, as they were initially charged in Dublin’s non-jury court rather than the district court.
Hutch and former Sinn Fein councilor Jonathan Dowdall, both charged with murder, appeared in court today along with three co-defendants while there was also a notable Garda presence.
They are due to face charges in October in connection with the fatal shooting of Kinahan mobster David Byrne at the Regency Hotel in 2016.
Senior counsel Brendan Grehan, who is defending Mr Hutch, said today it was an “absurd interpretation” of the law for the state to choose the way an accused is charged and then give them the “obvious benefits” of filing of the 4E application.
He described this as “extraordinary” and said their complaint related to the “availability of an important legal right” to press charges ahead of a trial.
Counsel also said he called for something beyond the literal reading of the relevant section and that the literal interpretation would “discriminate against and be treated unequally” before the law.
Mr Grehan said there was “no earthly conceivable reason why this lacuna should occur” and that there was no justification for it.
He said his client has been in custody since September and his pre-trial detention could be terminated if the court accepts there is insufficient evidence to bring him to trial.
Senior counsel Michael O’Higgins, who defended Jonathan Dowdall, said whoever drafted the legislation “accidentally took his eye off the ball” and created circumstances that no one intended.
He said it was “incredible” that it took 20 years for the case to be litigated and that it was safe to say that the DPP never intended to gain such an “arbitrary” advantage.
Mr O’Higgins referred to the case of convicted ISIS member Lisa Smith, who was able to file a failed petition to dismiss the charges in the non-jury court. This was described by counsel as an “accidental right” because Smith was originally charged in court.
He argued that the case should be adjourned for four weeks to allow the Oireachtas to resolve the matter.
Fiona Murphy SC, on behalf of the state, said a literal reading of the law means the court has no jurisdiction to hear the request.
She also said it seemed like the legislature was “very clear about its purpose”.
The chair, Ms Tara Burns, said the three judges will decide the case next Friday.
The court also heard that the defense would also challenge certain evidence collected by gardaí.
Gerry ‘The Monk’ Hutch, 58, of The Paddocks in Clontarf, is charged with the murder of David Byrne at the Regency Hotel on Swords Road in Whitehall on 5 February 2016.
Former Sinn Fein councilor Jonathan Dowdall (43), whose address is in the Navan Road, Cabra, is also charged with the murder of Byrne.
His father Patrick Dowdall (65), also of Navan Road, Jason Bonney (51) of Drumnigh Wood, Portmarnock, Dublin 15, and Paul Murphy (60) of Cherry Avenue in Swords are each charged with a single misdemeanor offense 72 of the Criminal Justice Act 2006, replaced by Section 6 of the Criminal Justice (Amendment) Act, 2009.
Mr. Hutch, dressed in a white shirt, beige chinos and a thick graying beard, sat in the wharf next to Mr. Murphy and the Dowdalls, while Mr. Bonney sat in the court body.