The funeral of Belfast murder victim Mr Danny McGurk will go ahead as planned tomorrow after a judge upheld a coroner's decision to refuse a second post-mortem examination on behalf of a man questioned about the murder.
Mr McGurk's widow, Patsy, broke down in the High Court in Belfast yesterday after Mr Justice Coghlin dismissed an application by Mr Patrick O'Mahoney, who had earlier been remanded in custody on firearms and explosives charges.
His lawyers had applied for a judicial review of Coroner John Lecky's decision on the grounds that a second post-mortem might reveal vital evidence at his trial in the event of his being charged with the murder of Mr McGurk (35), who was shot in his home at Ross Road, in the Lower Falls area of Belfast, last Sunday.
The brutal killing - he was shot six times as three of his children slept upstairs - was blamed on the "Real IRA".
Mr O'Mahoney (41), a taxi driver, from Beechmount Pass, Belfast, was arrested on Tuesday along with a woman and two other men who were later released without charge.
Mr O'Mahoney appeared at the Magistrates Court yesterday and was remanded in custody on charges of possessing two guns and ammunition with intent to endanger life and having explosive substances in suspicious circumstances.
They were found in a car at Mr O'Mahoney's home by police investigating the murder.
As he was taken to Maghaberry Prison, his lawyers mounted a High Court challenge against the coroner's decision refusing a second post-mortem.
Barrister Mr John O'Hara said the assistant state pathologist, Dr Michael Curtis, had conducted a post-mortem on behalf of the crown and the coroner had refused to allow a second one on behalf of the defence.
His reasoning was that although Mr O'Mahoney had been questioned about Mr McGurk's murder he had not been charged with it and therefore was not entitled to have his own post-mortem.
Mr O'Hara said it had been put to Mr O'Mahoney during police interviews that Mr McGurk's death was the result of a punishment beating that "went wrong". He said a second post-mortem might reveal marks on the body which could be of vital assistance at a possible murder trial.
Mr O'Hara said police initially believed that one of the weapons found in the car was the murder weapon but it turned out not to be.
"But the police say that the ammunition was the same as the type used in the killing of Mr McGurk," he said.
He said police believed they could connect Mr O'Mahoney to a second car in which items of clothing were found.
"These are being forensically examined and the position is that police are still investigating Mr O'Mahoney in relation to the murder but do not have the evidence for a murder charge," said Mr O'Hara.
"It was put to him that he was part of the murder gang and police are still carrying out tests to see if a murder charge can be put to him."
Mr O'Mahoney's application was opposed by counsel for the coroner and Ms McGurk, both of whom were in court for the hearing.
Following a short adjournment, Mr Justice Coghlin dismissed the application on the grounds that Mr O'Mahoney did not have sufficient interest to challenge the coroner's decision.
"Even if he did have such status it would be necessary for him to show that it would be in the interests of justice for a second post-mortem to be carried out," added the judge.
As a tearful Ms McGurk left the court she was asked if she had any comment. "Not really," she said. "I shouldn't even have to be here." Her solicitor Mr Sean McCann said: "She is delighted that the family can now properly grieve the death of her husband and father of her children. [I am] only sorry that it meant her having to come to court to establish that the rights of a grieving family are greater than the trial of an accused person."