The Special Criminal Court is expected to rule today on a defence application on the legality of gardai forcing their way into a flat at Avonbeg Gardens in Tallaght, Co Dublin, when Garda Patrick Reynolds was shot dead.
Yesterday Mr Paul McDermott SC, counsel for Mr Sean Hughes, submitted to the court that the gardai had breached the Constitution by entering the flat without a warrant.
Mr Hughes (42), a father of three of Albert Terrace, Belfast, denies the capital murder of Garda Patrick Reynolds (23) at Avonbeg Gardens, Tallaght, Co Dublin, on February 20th, 1982.
A retired Garda sergeant told the court yesterday that he saw his colleague shot dead at the flat in Tallaght.
Mr Patrick O'Brien, previously of Tallaght Garda station, said he saw two flashes and heard two shots before his unarmed and uniformed colleague, Garda Reynolds, fell to the ground mortally wounded.
He was giving evidence on the second day of the trial.
The offence of capital murder carries a mandatory sentence of 40 years' imprisonment without remission.
Mr Hughes also denies the theft of £62,100 from a bank in Askeaton, Co Limerick, on February 18th, 1982, receiving stolen cash, and the unlawful possession of firearms and ammunition with intent to endanger life in Tallaght on February 20th, 1982.
Mr O'Brien said that in response to an anonymous telephone call to Tallaght Garda station five unarmed gardai, four of whom were uniformed and one a plainclothes detective, went to a Dublin Corporation flat at Avonbeg Gardens, Tallaght, in a Garda car.
"Garda Reynolds and myself went to the back of the flats" while another three gardai went to the front to gain entry, he said.
From a vantage point behind the housing block, Mr O'Brien said, he saw a male get out of the flat through a small window on the first floor on to railings, in an attempt to escape. He spotted the two gardai below, "got into a panic", and went back inside.
"I sent Garda Reynolds to the front of the building and I remained at the back in case he or others attempted to escape," he said.
"Just as Garda Reynolds disappeared around the building I heard two or three shots. . . I ran around to the side of the building and Garda Reynolds had disappeared. . . from my view at this time.
"I met Garda McMahon running out and he said to me, `There are a lot of guns round there.'
"I saw a man with a gun . . . and I saw Garda Reynolds who'd got to the landing . . . and I saw two flashes and I heard two shots.
"Garda Reynolds continued to run down the stairs and he just appeared at the doorway and I turned and ran back to [the] corner.
"As I turned over my shoulder for my colleague, . . . I stopped there hoping Garda Reynolds would follow me and almost immediately I saw two men running round from the front of the building. Beside it was a red Ford Escort car."
The man with the gun got into the driver's seat and the other man got into the passengers seat. They drove off at high speed, he said.
Mr O'Brien continued that after that he realised Garda Reynolds was unconscious.
After calling for an ambulance, he went up to the flat where, in the bathroom off the hallway, he saw a number of guns and a large sum of money on the floor.
Previously the court had heard that Garda Reynolds fell mortally wounded in the hallway of the flats after he was shot by a man standing on the first floor landing.
Mr Eamonn Leahy SC, prosecuting, had said that a colleague of Garda Reynolds who witnessed the fatal shooting identified the gunman at a railway station in Paris on November 6th, 1982, as Mr Sean Hughes. Fifteen years later Mr Hughes was arrested at Swinford, Co Mayo.
The State alleges that half-an-hour after cash was delivered to the Bank of Ireland in Askeaton on the morning of February 18th, 1982, a group of armed men entered, held up the staff, and escaped with £62,100 in cash.