30 Sept 2022

'No clear association' and 'element of musical chairs' between man accused of attempted murder of James Gately and prosecution case, court hears


'No clear association' and 'element of musical chairs' between man accused of attempted murder of James Gately and prosecution case, court hears

There is "no clear association" and an "element of musical chairs" between the man accused of the attempted murder of James Gately and the prosecution case, his defence team have told the Special Criminal Court. 

James Gately (32) was shot five times as he sat in his car at the Topaz filling station on the Clonshaugh Road in north Dublin at lunchtime on May 10, 2017.

Mr Gately, who was warned by gardaí of a threat to his life, survived the shooting after sustaining injuries to his upper chest and neck.  

Caolan Smyth (28) of Cuileann Court, Donore, Co Meath, has pleaded not guilty to Mr Gately's attempted murder.

Mr Smyth has also pleaded not guilty to the possession of a firearm with intent to endanger on the same date and location.

His co-accused Gary McAreavey (53) of Gort Nua, Station Road, Castlebellingham, Co Louth, has pleaded not guilty to acting to 'impede an apprehension or prosecution by purchasing petrol and assisting in the burning out of the vehicle used in the attempted murder' at Newrath, Dromiskin, Co Louth on the same day.

On Wednesday, Mr Smyth's barrister, Mr John D Fitzgerald SC, said that the prosecution's case was a circumstantial one, based on strands of evidence and that if one of those strands failed then the case against Mr Smyth was "weakened overall".

Mr Fitzgerald, outlining the case, said that, firstly, Mr Smyth is accused of being the driver of a black car at the Topaz the day before and on the day of the shooting; that he was linked to the car's movements through a mobile phone attributed to Mr Smyth; and that CCTV footage showed a person alleged to be Mr Smyth leaving his Louth home  

Mr Fitzgerald said that there was a line between inference by the prosecution in a circumstantial case and speculation: "One is based on evidence and the other is not."

"If one of those strands of circumstantial evidence is weakened, it has an affect on the overall case and where there is an alternative and creditable account it follows that that case must be preferred to the one before us.

"The strands on which the prosecution rely are not as strong as suggested. There is an alternative and credible account available," he said.   

Mr Fitzgerald said the links between his client, the car, the phone and Mr Smyth's home address "falls short of the requisite standard of proving that Mr Smyth can be associated with these elements of the prosecution's case. It is the defence's case that there is an element of musical chairs around the association of Mr Smyth and the ingredients of the prosecution's case".

"They cannot prove what his association with the car might have been, they can't prove he is the person driving the car, they can't prove his association with the phone number and they can't prove he is the person who left the address on the morning of May 10," said Mr Fitzgerald.

Regarding the car, which the prosecution say is a black 08D Lexus, Mr Fitzgerald said that the court was required to ask if the gardaí were correct to identify the driver as being Mr Smyth from CCTV footage at the Topaz the day before the shooting.

In her closing speech for the prosecution yesterday, Ms Anne-Marie Lawlor SC said that there was no doubt that Mr Smyth was the shooter and that he was carrying out a "rehearsal" on May 9 for the shooting on May 10. She said that Mr Smyth was identifiable to gardaí who reviewed CCTV footage of the accused at the Topaz on May 9.

Mr Fitzgerald said: "I counted a total of 28 gardaí shown the CCTV footage over a three-week period and while there was no contamination of evidence, I would ask the court to consider that a breakthrough was made as early as May 12 in a major investigation and that there is a possibility of 'suggestion'.

"If a person was about to carry out a sophisticated shooting on one day, would they make themselves so freely identifiable in the same place the day before?" he asked.

Counsel also asked the court if it was concluding that if Mr Smyth was in the car on the day before the shooting on May 9 at the Topaz, "did that mean he was in the car on the tenth?"

Mr Fitzgerald said that the car the prosecution associates with Mr Smyth was sold by its previous owner in April, 2017, to a man in Tallaght, which the trial heard was "around 35-years-old, of heavy build, fat, and who gave a different phone number. These are details that point away from Mr Smyth".

Two witnesses who gave evidence in the trial said that the Lexus, identified by its registration, was parked at Kingswood Heights in Dublin 24 from April 17 until April 26. 

"It appears that other people had access to the car in the three weeks from April 17 to May 10 and that the inevitable conclusion that one day Mr Smyth is using the car that he must be using it the next day doesn't necessarily follow," said Mr Fitzgerald.

Counsel said that some of the CCTV footage of the movements of the car "merely showed a black car" and that the trial had heard that "thousands" of black Lexus' were on the roads.

Mr Fitzgerald said that there was a "similar transitory association" with the phone the prosecution attributed to Mr Smyth in tracking his and the car's movements.

"There are limits on mobile cell-site evidence. All that phone-mapping does is say that a phone might be in a general area and if that cell-site is overloaded it might not even show that. Neither of those situations can place a phone in someone's hand, in a car, much less at a service station," said Mr Fitzgerald.

Counsel said that a total of nine handsets attributed to Mr Smyth by the prosecution were reviewed by investigating analysts and that three numbers were used in association with different handsets that "showed a transitory pattern" and that "again, there is an element of musical chairs and of numbers moving within handsets".

Regarding the prosecution evidence of Mr Smyth leaving his Louth home on the morning of the shooting, Mr Fitzgerald said that there was "no identification" of Mr Smyth from CCTV.

"Similar to the other two elements, there is again a transitory, shifting element. If the prosecution is right, he is living in Ballymun in February based on a Social Protection application, that he was in Cuileann Court in Louth in March but that when it came to his arrest in July the Garda jailor considered that to be a false address and replaced it with 'NFA', or no fixed abode. In other words: again, it was shifting addresses," said counsel.

Counsel said that there was no forensic evidence from the van used by co-accused Mr McAreavey linking Mr Smyth to the burning out of the Lexus at Newrath, Co Louth, on the day of the shooting.

"I say that the evidence in this case is a shifting association between the car, the phone, the address with no clear association of Mr Smyth with the prosecution's case regarding Mr Smyth's movements on the ninth and tenth of May 2017," said Mr Fitzgerald.

The trial, which is in its fourth week, continues tomorrow (THURSDAY) at the Special Criminal Court before Mr Justice Tony Hunt, presiding, with Ms Justice Sarah Berkley and Mr Justice Michael Walsh, when Mr McAreavey's barrister, Mr Hugh Hartnett SC, will give his closing speech.

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