The Special Criminal Court has ruled that former Sinn Féin councillor Jonathan Dowdall can give evidence against Gerard Hutch in his trial for murder.
Mr Hutch, 59, from The Paddocks in Clontarf, Dublin, has pleaded not guilty to the murder of Kinahan gangster David Byrne who was shot dead at the Regency Hotel in Dublin in February 2016.
He had objected to Dowdall, his former co-accused in the case, giving evidence because his senior counsel said Dowdall had "an incredibly powerful incentive" to do so as a charge of murder against him had been dropped.
The prosecution insists, however, there was never any link between the two events.
Ms Justice Tara Burns said that the sequencing of events establishes that Dowdall's statement to gardaí about what he knew about the murder at the Regency "was not given by him in return for the murder charge being dropped".
She said the Director of Public Prosecutions (DPP) initially refused to drop the murder charge against Dowdall but later determined to accept a charge of facilitating a criminal gang commit the murder of David Byrne.
It was, she said, up to the DPP to decide on the charge and she pointed out that in other cases in the Special Criminal Court where a murder charge has been proffered, pleas to other offences such as helping or facilitating a criminal gang are offered and accepted.
In this case, Dowdall had not provided a statement to the gardaí when the DPP had determined to accept the lesser charge.
The presiding judge also said that "the reality is" that Dowdall "could have decided not to give evidence once the DPP had accepted his plea" to the lesser charge.
The court ruled it will proceed to hear the evidence of Dowdall.
Ms Justice Burns was, however, highly critical of the fact that the court has not yet been told whether or not Dowdall is in the Witness Protection Programme.
The most recent information the court has is that the former Sinn Féin councillor was being assessed for the programme but the State was unable to give an update today.
"I'm giving out. I'm not one bit happy that this is the position you find yourself in," the presiding judge said to the prosecuting counsel Sean Gillane who handed in a letter to the court.
He also said that they were "budgeting" to have Dowdall give his evidence next Monday.
However, the judge said they were ready to "take Mr Dowdall's evidence today" and that she wanted the court's displeasure to be conveyed to "the appropriate authorities".
"It's just not good enough that we are not using court time appropriately," she said to Mr Gillane.
"I'm astonished that you find yourself in this position. External authorities need to realise that we are the people who are holding a trial here," she added.
She also said she was not blaming Mr Gillane but that if the matter was not resolved, the court could hear "evidence from the person who could give an answer" as to why the three judges were not being informed of Dowdall's status as a protected witness.
