The Supreme Court has reserved its judgment in an appeal by a man convicted for acting as a getaway driver for the Hutch-organised crime group on the day a Kinahan gang member was shot dead at Dublin’s Regency Hotel.
Jason Bonney (55), of Drumnigh Wood, Portmarnock, Dublin, was convicted in April 2023 alongside Paul Murphy (63), of Cherry Avenue, Swords, Co Dublin, by the non-jury Special Criminal Court of facilitating the Hutch criminal organisation in carrying out the murder of David Byrne in February 2016.
Bonney was jailed for 8½ years and Murphy for nine years.
Both men were tried from January to April 2023 alongside Gerard Hutch. The court acquitted Hutch of the murder of David Byrne.
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Last November, the Court of Appeal rejected the appeals by Bonney and Murphy against their convictions.
The Supreme Court in March agreed to hear a further appeal brought by Bonney. The top court will only hear appeals if they meet certain criteria – specifically, that they raise a point of law of general public importance and an appeal is in the interests of justice.
The appeal centres on Bonney’s complaint about the trial court’s treatment of evidence which rebutted the alibi evidence of defence witnesses concerning the movements of a black BMW vehicle on the day of the attack. The trial court found Bonney guilty of facilitating the Hutch gang by providing access to the black BMW on that day.
The trial court treated the evidence of the defence witnesses, Julie McGlynn and Peter Tyrell, as alibi evidence under the Criminal Justice Act 1984, therefore allowing the prosecution to call a rebuttal witness, Paul Byrne.
At the hearing of Bonney’s appeal on Tuesday, his counsel, Brian McInerney, referring to the definition of “alibi evidence” in the 1984 Act, submitted that an alibi is evidence which places an accused at a location other than the location of the alleged offence, at the time when the alleged offence is being committed.
McInerney said Tyrell’s evidence placed another man as the driver of the black BMW at a relevant time on the date of the alleged offending.
Counsel submitted that Tyrell’s evidence should not have been treated as alibi evidence, as it was “inferential” in not placing Bonney at the scene of the alleged crime, rather than a positive assertion.
To that end, it did not match the definition for alibi evidence set out in the 1984 Act, counsel submitted.
In circumstances where evidence is not an alibi under the Act, there is a limited right to call rebuttal evidence when the prosecution is “taken by surprise” or “ambushed” by the evidence, and where it was not “reasonably foreseeable”, McInerney said.
Counsel submitted that this scenario did not arise. He submitted that it was incumbent on the prosecution to address in its case suggestions that someone else was driving the vehicle at the relevant time.
Questioned by Judge Iseult O’Malley about the impact of Byrne’s evidence on the verdict in the trial, McInerney accepted the trial court “didn’t put significant weight” on the testimony.
Fiona Murphy, for the DPP, said it was a combination of Tyrell’s and McGlynn’s testimony that formed the alibi evidence, and therefore it was appropriate for Byrne to be called in rebuttal.
She said that McGlynn’s evidence stated a man other than Bonney took the BMW at a particular time on the date of the alleged offending, and Tyrell’s evidence expanded on that, when he stated he saw the same man in the same vehicle on the same day. Tyrell’s evidence was “inextricably” linked with McGlynn’s, counsel said.
Murphy said it was flagged at the trial that if the defence called McGlynn, Byrne would be called as a rebuttal witness.
Counsel submitted that at trial, there appeared to be “acquiescence” on both sides that once McGlynn was called, there was no difficulty with Byrne being called.
She said the trial court was never asked to explore whether or not the prosecution was allowed to call rebuttal evidence, because it was clear it was appropriate for the evidence to be called. She said the accused’s side knew this, and said this was why no objection was raised to the evidence.
O’Malley, sitting with Judge Niamh Hyland, Judge Séamus Woulfe, Judge Gerard Hogan and Judge Brian O’Moore, said the court was reserving its judgment.
Bonney, who is incarcerated at Wheatfield Prison, joined the hearing via video-link.
