30 Sept 2022

No evidence accused knew about attempted hit on James 'Mago' Gately - barrister


No evidence accused knew about attempted hit on James 'Mago' Gately - barrister

Special Criminal Court

There is no evidence that a man accused of burning out a car allegedly used by a gunman in a failed hit on James 'Mago' Gately had any knowledge of the attempted murder, a barrister has told the Special Criminal Court.

Counsel for the accused man Gary McAreavey (53) said the court is being asked to speculate about Mr McAreavey's state of mind and said the prosecution had failed to provide any evidence suggesting he knew about the shooting.

Mr McAreavey, 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.

Gately (32) was shot five times as he sat in his car at the Topaz filling station on the Clonshaugh Road in north Dublin 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 chest and neck. Caolan Smyth (28), of Cuileann Court, Donore, Co Meath, has pleaded not guilty to Gately's attempted murder. Mr Smyth has also pleaded not guilty to possession of a firearm with intent to endanger on the same date at the same location.

John Hartnett SC for Mr McAreavey today told the three-judge court that there is "no evidence at all" in relation to the state of mind of his client. He said the prosecution had left it up to the judges to "take a stab at it" and decide without evidence what was in his mind at the time. He added: "That is unacceptable in a criminal trial."

He further asked: "Is it open to the prosecution in a serious criminal case to say to the tribunal of fact there is no evidence of knowledge of attempted murder but all we have to do is establish that there was knowledge of some arrestable offence, and we are not going to say what that is, but we ask you to take a stab at it and decide on what offence that might be? That runs contrary to the precepts of the criminal law."

The court has previously heard from counsel for Mr Caolan Smyth that there is "no clear association"  between the Mr Smyth and the the attempted murder. John D Fitzgerald SC for his defence said the circumstantial case put forward by the prosecution was not strong and there is an alternative credible account available.

Counsel for the prosecution Ms Anne-Marie Lawlor closed the case earlier this week by saying there is "no other conclusion" but Mr Smyth was the man who "pulled the trigger".

Regarding Mr McAreavey Ms Lawlor said that he was seen on CCTV going to Campus Oil in Castlebellingham to get petrol after a contact from what is alleged to be Mr Smyth's phone in the aftermath of the shooting. Mr McAreavey bought a small amount of petrol, which he carried to his white van in a red petrol can.

A black Lexus allegedly driven by Mr Smith was then seen on CCTV driving in convoy with Mr McAreavey's van to Newrath, where the Lexus was burned out, said counsel.

Having heard all closing speeches Mr Justice Tony Hunt, sitting with Judge Sarah Berkeley and Judge Michael Walsh, will deliver their verdicts on January 8.

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