Murder accused Kevin Braney acquitted on related firearm charges

Mr Braney also denied possession of a 9mm Beretta semi-automatic pistol with intent to commit murder and possession of seven rounds of 9mm ammunition on March 5, 2013 at Blackthorn Apartments, Brackenwood Avenue, Balbriggan, Co. Dublin.

The defence had applied for a direction to acquit the accused on firearm and ammunition charges following the close of the prosecution’s case earlier this week but the non-jury court refused this application yesterday.

Prosecution counsel Alex Owens SC informed the three-judge court this morning that the Director of Public Prosecutions (DPP) had decided not to proceed with the firearm and ammunition charges against Mr Braney and they could be withdrawn.

Defence counsel Bernard Condon SC, for Mr Braney, submitted that the court should be invited to revise its direction and acquit the accused on the firearm and ammunition charges saying: “I made an application which has obviously now been accepted.”

Mr Owens said the DPP can enter a “nolle prosequi” (not to proceed with the prosecution) at any stage before a case closes and this trial had not concluded yet.

Mr Condon indicated to the court that he was not so sure these charges could not be revisited.

Mr Justice Paul Coffey, presiding, sitting with Judge Martin Nolan and Judge James Faughnan, said the application had come too late and it would direct an acquittal in relation to the relevant counts.

Closing the defence case today, Mr Condon told the court that the ultimate question is whether it can be accepted that former murder accused-turned State’s witness David Cullen had told the truth when he gave evidence. He submitted that Cullen does not "come close" to the required standard of reliability and credibility in the assessment of evidence.

The eleven-week trial heard from Cullen who described his role in the shooting of Mr Butterly. Cullen was originally charged with Mr Butterly’s murder but he subsequently pleaded guilty to the unlawful possession of a semi-automatic pistol at the Huntsman Inn on the day of the shooting. His plea was accepted by the DPP, he turned State's witness and this murder charge was dropped.

Mr Condon submitted that Cullen was the “most benefited person” to have come before an Irish court. “He is right up there with Charles Boden and Russell Warren,” he remarked.

Bowden and Warren are part of the State’s Witness Protection Programme and gave evidence that certain criminal associates took part in Veronica Guerin’s murder at the Naas Road, Clondalkin on June 26, 1996.

The defence barrister further submitted to the court that it could not reject Cullen’s evidence and then convict his client of murder.

He noted that Cullen’s evidence was “totally unreliable” and "inconsistent" with elements of fantasy to it. Mr Condon called him a “spoofer" and "a liar” as well as a person who was incapable of telling the truth.

Counsel stated that it could not be accepted that Mr Braney had said to Cullen on March 5, “just make sure this gets done right and make sure he (Butterly) doesn’t get away.” Mr Condon said the court must find that this “verbal” was said beyond a reasonable doubt and if it did not it must acquit his client.

The problems with Cullen are so significant and enormous that despite whatever other evidence there may be, Mr Condon said, it could never “lift” this witness into the category of beyond a reasonable doubt.

Furthermore, the lawyer asked the court to take into account the absence of any forensic or DNA links to his client in the case. “There is also not a single iota of evidence that links Kevin Braney to phones,” he added.

Paul O’Higgins SC, prosecuting, opened the trial, telling the judges that it was an unusual case because gardai were already keeping an eye on movements in the area that day as a result of certain suspicions. He said that Mr Butterly had driven into the carpark of the Huntsman Inn around 1.55pm. He had parked and remained in his car.

He said that a black Peugeot 206 then drove into the carpark and parked for a few minutes. It left shortly after 2pm and was followed by an unmarked garda car.

It was around this time that a stolen Toyota Corolla was driven into the car park, he said.

“The car (Toyota) then stops in front of Mr Butterly’s car and two shots are fired, one through the windscreen and one through the bonnet,” said Mr O’Higgins. “Mr Butterly, who's on his own in the car, runs..., but he doesn’t get very far.”

Mr O’Higgins explained that two witnesses, who were waiting for their school buses, had stated that he was chased across the carpark and shot three times as he ran. The court heard that he fell and died almost immediately.

Mr Justice Coffey said the court will deliver judgment on the case early in the new year.

Mr Braney was remanded in custody until January 18 when the case is listed for mention.