Note-taking of surveillance gardai during Kinahan probe cannot be "let slide" - barrister

Surveillance officers' "policy" to not take notes of sightings during a Kinahan cartel conspiracy to murder investigation cannot be “let slide”, a defence barrister has told the Special Criminal Court.

Note-taking of surveillance gardai during Kinahan probe cannot be "let slide" - barrister

Surveillance officers' "policy" to not take notes of sightings during a Kinahan cartel conspiracy to murder investigation cannot be “let slide”, a defence barrister has told the Special Criminal Court.

He submitted that some surveillance gardai “came up with facts and details” when they were in the witness box, which were not previously noted in statements.

He also said some gardai told the court they made identifications "when, in fact, they have not done so but in fact have referred to other sources and other materials and, retrospectively, then assert an identification".

Liam Brannigan (37) from Bride Street, Dublin 8, is charged with conspiring to murder Gary Hanley at a location within the State between September 15th and November 6th, 2017.

The accused has pleaded not guilty.

Three men, Joseph Kelly, Luke Wilson and Alan Wilson, have previously all pleaded guilty to the same offence and been jailed.

Today Giollaiosa Ó Lideadha SC, for Mr Brannigan, continued the defence’s application for the evidence of the surveillance officers and phone charts attributing secretly recorded conversations within cars bugged by gardai to phones attributed to specific people to be ruled inadmissible.

Mr Ó Lideadha previously argued that the prosecution's case "falls" without the evidence of the surveillance gardai as that is the evidence that binds the prosecution's case "together".

Mr Ó Lideadha submitted this morning that the fundamental question facing the three judges of the court was whether the surveillance gardai took “reasonable and practical” steps “to gather evidence in a fair and transparent way which allows for a fair trial”.

He argued that, by not taking notes, most of the surveillance gardai did not take these steps.

The barrister told the judges: “Do you as the judges, trial judges effectively, under the constitution, comply with your solemn obligation to ensure a fair trial by just letting it [practice of non note-taking] slide?

“The problem is that if this is let slide then, in effect, it is a green light.

“And presumably it’s a green light which the NSU believed they had because many said they’ve been working at the NSU for 18 to 20 years without taking notes and appeared shocked at the suggestion they should be taking notes.”

Mr Ó Lideadha also told the judges: “A trial judge is obliged to exclude evidence if the process leading to identification was unfair, infirm and the defence was not in a position to challenge it properly.”

In response to a question from Mr Justice Paul Coffey, Mr Ó Lideadha said he could not point to a previous scenario where the evidence of a surveillance officer was excluded because they had not taken notes.

However, he said: “Just because there hasn’t been a requirement up to now [to take notes] doesn’t mean to say it is actually not required. Because of its demonstrable value, it amounts to a necessity in order to have a fair trial."

He added: “These are not civilian witnesses. This seems to be the policy [of the NSU] and it doesn’t meet minimal standards of fairness and admissibility.”

Mr Ó Lideadha recalled the evidence of surveillance officers Garda EI and Garda AK.

Garda EI previously told the court they “clearly saw” Liam Brannigan driving a white Nissan Primastar van - which the prosecution claim was used as a “spotter” car by Mr Brannigan and others - in the Blackpitts area of Dublin on October 2nd, 2017. They also said Mr Brannigan had a stubble.

However, the court heard that, at the time of the sighting, a recording from a dictaphone used by Garda AK picked up Garda EI saying over the Garda radio that they spotted a man with “ginger kind of long stubble like Brannigan”.

Yesterday Garda EI accepted, under cross-examination, that their use of language at the time of the observation was “clear” they “weren’t certain who it was” at the time.

Mr Ó Lideadha also recalled Garda AK’s evidence to the court that they saw Joseph Kelly “driving at speed” on September 4th, 2017.

Yesterday he put it to Garda AK that their dictaphone recorded them saying, “Looks like Kelly now in the Leon."

Garda AK told Mr Ó Lideadha that that’s what they recorded at the time because they weren’t “100 per cent”.

However, Garda AK said they satisfied themselves later in the day that it was Joseph Kelly, after they “researched intelligence available” to them.

Today Mr Ó Lideadha said: “How can we test this evidence or rely on this evidence, if they’re claiming to make a positive identification and their dictaphone proves they didn’t.

“That is a demonstration of the unreliability of this witness.”

Meanwhile, Mr Justice Coffey asked Mr Ó Lideadha about the mention of “Branner” in a recorded conversation from the bugged Nissan Primastar when it was parked very close to Mr Hanley’s home on the morning of October 26th, 2017. Garda Y previously told the court they saw Liam Brannigan driving the van at 8.09am that day.

Mr Ó Lideadha said the prosecution has not adduced evidence to suggest that the name “Branner” is his client. He added: “There’s no evidence to suggest it is a name or that it is a nickname of my client.”

Luke Wilson (24), from Cremona Road in Ballyfermot, Dublin; Alan Wilson (39) of New Street Gardens, Dublin 8; and Joseph Kelly (35) of Kilworth Road, Drimnagh, Dublin 12, all previously pleaded guilty to conspiring to murder Mr Hanley.

Luke Wilson, who also pleaded guilty to unlawful possession of a Beretta, was jailed for 11 years; Alan Wilson was given six years and Joseph Kelly, who also admitted a weapons charge, was jailed for 12 years.

The trial continues before Mr Justice Paul Coffey presiding, alongside Judge Sinéad Ní Chúlacháin and Judge James Faughnan, on Thursday.

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