Judges at the Special Criminal Court have refused to hear a bid by Gerard 'The Monk' Hutch, who is accused of the murder of Kinahan gang member David Byrne at the Regency Hotel in 2016, to dismiss the charge against him.
Ruling on whether the court had the jurisdiction to hear Mr Hutch's application, presiding judge Ms Justice Tara Burns said that in order for the non-jury court to hear such a matter, a case must be sent forward for trial from the District Court.
As Mr Hutch was charged before the Special Criminal Court and not the District Court, the three judges rejected arguments previously made by his lawyers, who said their client would be discriminated against and receive unequal treatment if he was prevented from bringing an application before the non-jury court to dismiss the charge against him.
'Absurd interpretation'
Defence counsel Brendan Grehan SC, for Mr Hutch, said last week that it would be an "extraordinary situation" and an "absurd interpretation" of Section 4E of the Criminal Procedure Act of 1967 if the Director of Public Prosecutions (DPP) could deny his client "the obvious benefit" of bringing the application simply because he was charged in the Special Criminal Court and not the District Court.
Mr Hutch (59), last of The Paddocks, Clontarf, Dublin 3 but who is in custody, was present in court for Friday's ruling, where he sported a full mane of grey hair and a cleanly shaved face.
The three-judge court heard submissions last week from Mr Grehan, for Mr Hutch, and Michael O'Higgins SC, for co-accused and former Sinn Féin councillor, Jonathan Dowdall, regarding Section 4E of the Criminal Procedure Act of 1967.
Fiona Murphy SC made submissions for the prosecution.
Mr Hutch's four co-accused supported the Section 4E application. Section 4E states that a court can dismiss the charges against an accused person before trial where there is insufficient evidence.
Charge
On September 29th, 2021, Mr Hutch appeared before an out-of-hours sitting of the non-jury Special Criminal Court charged with the murder of Kinahan gang member David Byrne at the Regency Hotel on the Swords Road, Whitehall, Dublin 9, on February 5th, 2016.
Delivering the ruling of the non-jury court on Friday, Ms Justice Burns said the defence was seeking to bring a Section 4E application as they were asserting that the case to put the accused on trial was insufficient.
She said the defence maintained that a literal interpretation of the section would result in the unequal treatment of their client, as opposed to other accused who are originally charged before the District Court.
The judge said the prosecution’s contention was that Section 4E was not available to the defence as Mr Hutch was charged directly before the Special Criminal Court.
"The prosecution submit that the terms of Section 4E are clear and that it is only available to an accused when they are sent forward for trial. As the accused was charged before the Special Criminal Court, [they say] he does not fall within the terms of the section," she added.
Ms Justice Burns said the court disagreed that the section could be classified as a matter of practice and procedure.
She said the court must apply a literal interpretation to the section to see what the intention of the legislature was and that only when an absurd result would result within the context of the act, would a purposeful approach be adopted.
The judge said that an accused being sent forward for trial from the District Court is a precedent that the Special Criminal Court must meet.
Appropriate venue
Furthermore, Ms Justice Burns said the Special Criminal Court was not the appropriate venue for determining the constitutionality of the section and that those accused who commence their journey in the District Court are not appropriate comparators.
In summary, the judge said it was not appropriate for the non-jury court to examine this matter any further as the literal meaning in Section 4E reflected the intentions of the Oireachtas.
Following the ruling, Mr Grehan, for Mr Hutch, referred to a proposed pre-trial hearing application under Section 6 of the Criminal Procedure Act 2021, which he said comprised the "major if not substantial case" made against his client in terms of the evidence.
The lawyer said he would be bringing an application to have certain evidence in the case ruled inadmissible.
Ms Justice Burns said the matter would be dealt with as part of the trial in October.
All parties agreed there was nothing else to attend to before the trial date on October 3rd and the case was adjourned until that date.
