25 Sept 2022

Court reserves judgment in appeal of two convicted murderers

Court reserves judgment in appeal of two convicted murderers

Court reserves judgment in appeal of two convicted murderers

The Court of Appeal has reserved judgment in the case of two men attempting to overturn their convictions for murdering a dissident republican.

Sharif Kelly and Edward McGrath were sentenced to life in prison by the Special Criminal Court for murdering Peter Butterly in Meath almost eight years ago.

The State’s main witness in their trial at the three-judge court was their former co-accused, David Cullen, who had his murder charge dropped before giving evidence against them.

Mr Butterly, 35, was chased and shot dead outside The Huntsman Inn, Gormanston, in view of students waiting for their school bus on the afternoon of March 6, 2013. The father-of-three died from gun shots wounds to his neck and upper back.

In March 2017 Edward McGrath (38), of Land Dale Lawns, Springfield, Tallaght and Sharif Kelly (50), the getaway driver of Pinewood Green Road, Balbriggan, were convicted of murdering Mr Butterly. It was their second trial, with the first having collapsed in January 2015 after 55 days. McGrath was also found guilty (GUILTY) of firearms offences.

David Cullen was also originally charged with the murder of Peter Butterly, from Dunleer, Co Louth.

However, in July 2014 Cullen 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, a nolle prosequi – a decision not to proceed – was entered on the count of murder, and he turned State's witness. He was sentenced to seven years in prison, with half suspended, for possession of the firearm. 

Cullen gave evidence for four and a half days during the trial in the Special Criminal Court. His testimony was the focus of three days of legal submissions, during which the defence barristers argued that his evidence was tainted and should have been excluded from the trial.

The admission of his evidence also formed the basis of much of Kelly’s and McGrath’s conviction appeal, which began on Monday.

Kelly’s legal team submitted that Cullen’s evidence was not capable of being relied upon.

Giollaiosa O Lideadha described as ‘devoid of value’ Cullen’s assertion that Kelly was present during a conversation about the plan to kill Mr Butterly.

He noted that Cullen had later testified that he himself did not know what was going to happen, which Counsel said was inconsistent with the discussion having taken place.

Mr O Lideadha argued that the trial judges had erred in refusing to find that Cullen’s evidence was not worthy of any credit.

McGrath’s lawyer adopted that argument and also submitted that the fact that McGrath was driving the car from which Peter Butterly was shot did not show prior knowledge of the killing.

“A fundamental aspect of the appeal is what Mr Cullen says about the planning meeting and my client being present,” began Paul Greene SC.

“Your client was driving the car. Your client has the gunshot residue,” remarked Court President Justice George Birmingham. “Let’s be blunt Mr Greene, your client was caught red-handed.”

Mr Greene agreed.

“Of course he was caught red-handed in a criminal enterprise,” he said. “But state of mind at the time is of importance.”

He said that alternative verdicts were available.

“We say there’s an absence of evidence of mens rea,” he said, referring to the criminal intent needed for a conviction.

He said that the ‘planning meeting’ was essential as regards his client’s state of mind.

“This is a man, who drove to a location where the backseat passenger discharged a firearm from the backseat,” he said. “Absent Mr Cullen, there’s no evidence my client had any knowledge.”

Mr Greene reminded the court that Cullen had been asked during the trial if it was possible that he was telling a pack of lies to the court.

“Anything is possible,” he had replied.

“That’s the quality of testimony the court was asked to make an inference as to the state of mind of Mr McGrath,” said counsel.

Counsel for the DPP ‘fully accepted’ that Cullen was a ‘tarnished’ witness for ‘a whole host of reasons’.

However, Paul O’Higgins SC said that there was no rule that even someone convicted of perjury in another case could not give evidence.

“The court is familiar with the giving of tarnished evidence in every kind of situation imaginable,” he noted

He said that the judges could exercise the vast protection of the presumption of innocence.

“I have no doubt that the court considered that he had told lies under oath in a subsequent case,” he said, referring to a finding that Cullen had perjured himself on another occasion.

“But there’s no rule that someone convicted of perjury in another case can’t give evidence,” he noted.

He said that the trial court was fully entitled to find both men guilty of murder beyond reasonable doubt.

“The court did not act on the evidence of Mr Cullen, except when it was corroborated by other evidence,” he submitted. “Clearly, the court found guilt independent of the evidence of David Cullen, but it is copper fastened by his evidence.”

Court President Justice George Birmingham (presiding), who sat with Justice John Edwards and Justice Patrick McCarthy, reserved judgment.

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