The Defence for Gerry Hutch say it would be illegal if gardai utilised a tracker on a vehicle he was in while it was in Northern Ireland.
Hutch, 59, from Clontarf in North Dublin is charged with the murder of Kinahan cartel associate David Byrne, 34, in Dublin’s Regency Hotel on February 5, 2016 - a charge he has plead not guilty to.
Today is the 10th day of the non-jury trial, which is expected to last up to 12 weeks.
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Also before the court are Paul Murphy, 59, of Cherry Avenue, Swords and Jason Bonney, 50, of Drimnagh Wood Portmarnock - who have pleaded not guilty to participating in or contributing to activity that could facilitate the commission of a serious offence — namely the murder of David Byrne — by a criminal organisation by providing access to individual motor vehicles on February 5, 2016.
All three men are on trial before Ms Justice Tara Burns, Judges Sarah Berkeley and Grainne Malone.
And following evidence from a PSNI officer this morning about CCTV footage that was obtained, Defence Counsel Brendan Grehan SC told the court that he wished to make a statement.
Mr Grehan said the Defence was trying to establish “whether a tracker was used” and said “we got no headway on that,” after cross-examining a number of gardai who have taken the stand over the last few days.
He said that if a tracker was “deployed by gardai to be utilised outside the State” then this would be of “great significance,” and it would be his submission that this would be “illegal.”
Mr Grehan said the Defence were trying to establish a number of things - whether a Toyota Land Cruiser that is alleged to have contained Gerry Hutch and Jonathan Dowdall “was followed across the border into Northern Ireland.”
He said some headway had been made on that, but they had made no progress in establishing if gardai who were involved in a surveillance operation, were using a tracking device on the vehicle.
Several gardai have now stated privilege before the court when asked if they were aware of the presence of a tracker.
Mr Grehan said in terms of trying to assemble information the prosecution has relied upon certain CCTV footage - in particular footage obtained on February 20 2016 at a BP Service Station in Newry and also at the Quays Shopping Centre in Newry.
He said that it is of great interest to the Defence to know how a specific enquiry was made in a “very short time” by gardai to seek footage of the exact whereabouts of that vehicle, on that date and time.
And he said so far the Defence has had “very limited success” in establishing that from the witnesses called to date.
Mr Grehan said it appeared from the witnesses called so far that many of them had simply been tasked to obtain CCTV footage - but that the court has not heard from the person or persons who tasked the person to get the footage in the first place.
“It seems a bit like…we don’t get the person, we get the person behind the person,” Mr Grehan said.
Mr Grehan said the Defence has been writing to the prosecution since last June looking for information in terms of emails and notes that may assist them in obtaining more information.
He said it may be the case that there isn’t anything more, or that “somebody is for their own reasons not providing information,” on the basis of a claim of privilege over whether or not a tracker was used - “or in fact garda personnel followed the Toyota Land Cruiser into the North.”
“I'm going to keep asking the questions,” Mr Grehan told the court.
He said that unfortunately could mean we will “have a very truncated trial” that may end up getting frequently interrupted because of this issue.
He said that it was in the Defence’s submission that it will be important to establish if a tracker device was used by gardai in Northern Ireland - but that it is of “even greater significance whether a listening bug was deployed in Northern Ireland.”
Mr Grehan said the issue will raise itself later in the trial - but at this juncture he wanted to indicate his concerns.
Ms Justice Tara Burns asked if she understood correctly that Mr Grehan was not looking for the court to do anything about this at this juncture - but rather he was “setting out your stall.”
Mr Grehan affirmed that he was and said there was a “method to our madness” and as to why he continues to ask each witness about how they carried out their surveillance - and if that surveillance occurred at any point in Northern Ireland.
Prosecuting Counsel Sean Gillane rebutted that issues are “now being conflated skillfully at a point of convenience to Mr Grehan.”
He said he was told when they wanted to play CCTV footage before the court one thing - to provide proof for the footage, which he said they have been doing.
He said it never occurred to him when calling witnesses to speak to the “guy who called the guy who called the guy.”
Mr Gillane said privilege issues will be “undoubtedly” dealt with - but said was he not right in recalling that Mr Grehan previously stated before the court that they weren’t at that point yet.
He also said that there has been correspondence between the prosecution and the defence in this case, and that it has been “focused” and “sober.”
Mr Gillane said that if further issues are explored “we’ll deal with those” as they arise - and stated that correspondence continues between both sides all the time.
Following this exchange the court heard further evidence from more members of the Garda National Surveillance Unit (NSU).
The officers cannot be identified - and the public are excluded from the hearing, except for the media, when they are giving evidence.
Taking the stand, an officer identified as ‘BM’ said he was tasked with searching an area on Blackhorse Avenue, Dublin 7 at 5.55pm on February 19.
Garda BM stated he was trying to find a white plastic bag but found nothing.
He was again on duty in the Coolock area on March 9, 2016 - on the same operation that several gardai have already given evidence about - monitoring the movements of IRA man Shane Rowan - and Patsy Hutch, a brother of the accused.
‘BM stated that he was in the Coolock area at 6:25pm when he saw Patsy Hutch driving a silver Toyota Yaris on Greencastle avenue.
Another witness - Garda ‘H’ said he was on duty in the Killygordon area of Co Donegal when he saw Rowan driving a maroon Toyota Corolla at 9:27am.
The Corolla, he said, drove to the Stranorlar area and turned into Drumboe Cottages before pulling up opposite Finn Valley College.
The driver got out and went into a house at Hilltop Crescent- and a few minutes later, the car left and drove into the centre of Stranorlar.
At 9.56am he said he saw Rowan walk from the post office wearing a navy hooded jacket and blue jeans.
At 10.39am the garda said he observed Shane Rowan driving alone in a grey Vauxhall in Killygordon towards Ballybofey.
Rowan, he said, parked at a Great Gas service station in Ballybofey at 11.36am, and at 11.41am,he saw the car leave the service station.
At 12.13pm, he saw it drive through Castlefinn towards the border, he said.
Garda H was pressed by Defence Counsel Brendan Grehan if he observed the vehicle as it went over the border into Northern Ireland.
He stated he had no sightings of Rowan in Northern Ireland.
Mr Grehan asked Garda H how he got to Donegal - with the officer responding by saying “in a car.”
Mr Grehan clarified that he meant what route the Garda took to get to Donegal - and specifically did he take the most direct route through Northern Ireland.
Garda H said he did not travel through the North, acknowledging that it was the easiest route to go but he “wasn’t in a hurry.”
The officer said he would “avoid” going through Northern Ireland “if I have to” and when asked by Mr Grehan why that was he said there was “no particular reason. I avoid driving through the North.”
Asked by Mr Grehan if he drove back through Northern Ireland after earlier observing Shane Rowan going over it, the garda said he did.
The garda said he was not observing or surveilling Rowan on his journey back to Dublin however.
Garda H said he would have been aware that Rowan went to a ‘Top’ Garage when he crossed back into the Republic at Emyvale - and that he stopped there himself on the drive back.
Asked by Mr Grehan if he knew that Rowan was there at the time, the officer said he did, but he didn’t witness him there, and said he was not following him.
Mr Grehan said did the garda want the court to believe it was coincidental that he stopped in the same place Rowan did.
Garda H said Rowan had done the same route from Donegal a couple of days beforehand and so the chances were he would do so again.
The officer said he had “closed surveillance” when Rowan went into Northern Ireland and it then continued to a certain extent when he came back into the Republic.
“I would have followed as such. Once he was back in the south,” he said in response to questions from the Defence.
Mr Grehan asked did the term “closed up” mean the Garda accepted that they were conducting surveillance from Emyvale to the N32 area - to which the Garda said that would not have occurred in Northern Ireland.
Mr Grehan again challenged that the Garda was driving through Northern Ireland.
“Yes but I wasn't conducting surveillance,” Garda H said.
Mr Grehan said that surely Garda H knew of Rowan’s movements when he was in the North.
The Garda said he had “no sightings of him” and doubted anyone else did while Rowan was in Northern Ireland.
The officer said that when he himself travelled into the North after Rowan did “it wasn’t surveillance. It was getting from A to B.”
He maintained that “no physical surveillance was carried out in the North.”
Mr Grehan responded: “Is it not called surveillance when you’re up North.”
Following Garda H was another surveillance officer named ‘CX’ who has since retired from the NSU, the court heard.
CX was also on duty on March 9, 2016, and gave evidence about observing the Toyota Corolla driven by Shane Rowan at 9:40 am that morning.
Rowan, he said, drove the car into a car park, getting out onto the main street of Ballybofey, to a post office - dressed in a blue quilted jacket and jeans at 9:56am.
He said he observed him going back to the car where he moved to a Lidl car park, went into the shop and emerged later with a bakery-type bag.
He got back into his car and drove off, before the Garda said he saw him again - this time driving a grey colored Vauxhall Insignia at 11:36am - driving towards Ballybofey.
At 12:55pm he said he saw Rowan driving the Insignia across the border at Clady.
He saw the car again at 1:55pm at the Top garage between Monaghan and Castleblayney - parked in the car park.
Garda CX said he saw Rowan on his own at the garage - and a 2:25pm he said he came back out and drove towards Emyvale - and on towards Dublin.
He next sighted Rowan at Slane village, he said, at approximately 2:45pm.
Later that day Garda CX was in Dublin, and said he observed Patsy Hutch driving a 04 CE registered Toyota Yaris - going past a Texaco garage and in behind the Newtown house pub.
Travelling immediately behind Patsy was, he said, Shane Rowan in the Vauxhall Insignia.
Both men turned left down Newtown Road he said, and at 5:11pm he said he observed the Yaris turn into the Applegreen Garage on the Malahide Road.
Both turned left at Newtown road. Then at 5.11pm observed the Toyota Yaris 01ce turn into the Applegreen garage Malahide road.
At 5:13pm he said he saw Patsy get out of the car and walk into the garage - with him coming back out and getting into the Yaris carrying some items in his hand at 5:17pm.
Cross-examined by Brendan Grehan defending Hutch, Garda CX was asked if he went down to Dublin on the same route that Shane Rowan took when he crossed the border.
Garda CX said he took the main route down through Omagh, which he assumed to be the most direct route.
Mr Grehan asked if that was the same route Rowan took, to which the Garda said “I did not observe Shane Rowan in the North so I don’t know what route he took.”
Mr Grehan asked the garda was he not certain that he was closed in on Rowan while he was in the North, to which the Garda said he had “no observation” of him or the Vauxhall when travelling through the North.
Mr Grehan asked the Garda did he think he was in front of or behind Rowan.
Garda CX said he would have crossed the border shortly after Rowan did.
But he said he did not “observe” Rowan or the vehicle he was in while he was in the North.
Mr Grehan then asked if there was a tracker device on the Insignia.
Garda CX said he will claim privilege in relation to that question.
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