Gardai have recovered records from a tracker device deployed on former Sinn Fein councillor Jonathan Dowdall's jeep which were believed to have been destroyed, the Regency Hotel murder trial has heard.
Sean Gillane SC, prosecuting, told the Special Criminal Court this morning (MONDAY) that the Garda National Cyber Crime Bureau had conducted a "fairly extensive" operation since last week, in which a securely stored desktop computer that had been listed for destruction had been examined.
He added: "In the course of the examination of that device, it appears that a working copy of the material in question was located and is available for examination". The lawyer said this was confirmed to him yesterday evening and that he hoped to be able to provide the defence with additional information later this morning.
In reply, Brendan Grehan SC, defending Gerard 'The Monk' Hutch, said it appeared that "what was lost is now found" and asked the three-judge court for some time to decide on how to proceed.
The Garda Assistant Commissioner of Crime and Security was expected to give evidence this morning. However, Mr Gillane said he was not in a position to call Asst Comm Orla McPartlin yet and the trial has been adjourned until 2pm.
Mr Grehan told the court last Tuesday that gardai destroyed records from a tracking device that had been placed on Dowdall's Toyota Land Cruiser jeep when he is alleged to have driven murder accused Gerard Hutch north for a meeting with republicans in the aftermath of the shooting.
Counsel said "disturbingly", the notes were destroyed by gardai after his client was arrested and charged with the murder of Mr Byrne and that the destruction of the tracker records was authorised on February 7 this year. He said the destruction of these records was a "real problem" and he did not accept the State's assertion that it was done in accordance with the Criminal Justice Surveillance Act 2009.
Last week, the former head of the National Surveillance Unit (NSU), who signed the authorisation for the destruction of the tracker records on February 7 this year, said he did not consult the senior investigating officer of the Regency Hotel murder investigation or the DPP when he destroyed records from a tracker device deployed on Dowdall's Toyota Land Cruiser. The data, it was said, was “gone forevermore” with no possibility of recreating the destroyed records.
Retired Detective Inspector Ciaran Hoey testified last Wednesday that he carried out a review of all the data information held by the NSU in early 2020 to ensure they were in compliance with the Surveillance Act of 2009. Data records older than three years that were not required for prosecution or appeal were destroyed in order to improve storage and the security of data, he said.
Mr Hoey, who was Detective Inspector with the NSU in 2016, said he did not believe the records would be used in the prosecution when he ordered their destruction just months before the Regency Hotel murder trial began last month. He also said that data from a tracking device to prove the location of a vehicle, person or thing at a particular time had never been used as evidence in the history of the Surveillance Act. Furthermore, he said the best evidence was the NSU members' sightings coupled with the CCTV footage and that was what was to be used in this trial.
Mr Hutch’s defence lawyer Mr Grehan said he could not understand how Mr Hoey, who is now retired, could “in good faith” have made a decision to have potentially relevant evidence to a criminal trial destroyed.
During the cross-examination by Mr Grehan it emerged that the policy document for the retention and destruction of documents must firstly be authorised by the Assistant Commissioner of Crime and Security as per section 9 of the Surveillance Act. Mr Hoey said that Asst Comm McPartlin had "signed off" on the destruction order on March 23 last. On that day a total of 87 orders were signed off on with information provided on a spreadsheet relating to relevant dates and details of Dowdall's jeep being tracked.
Mr Hoey said he didn’t make Asst Comm McPartlin aware that the current trial was proceeding, nor that the vehicle was related to Jonathan Dowdall or Gerard Hutch. Asked by Mr Grehan if Ass Comm McPartlin should have been alerted to the fact that the records may be "pertinent" to the trial, Mr Hoey said she wasn't as he did not think it was "pertinent". He repeated that the NSU had the records for six years, they weren't part of the book of evidence and no one had requested the documents.
Mr Grehan asked: "This vehicle was going to feature all over the place, where 27 members of the NSU were giving evidence and where the prosecution intended to lead the audio of the vehicle; you didn't think that the Asst Comm might have a different view?" Mr Hoey said he did not.
Mr Hutch (59), last of The Paddocks, Clontarf, Dublin 3, denies the murder of Kinahan Cartel member David Byrne (33) during a boxing weigh-in at the Regency Hotel on February 5, 2016.
The non-jury court heard intelligence suggested that Dowdall travelled to Derry exactly a month before the murder to meet with a Real IRA member, and that on January 18 he again travelled to Derry, this time in the company of Mr Hutch.
The prosecution case is that Mr Hutch had asked Jonathan Dowdall to arrange a meeting with provisional republicans to mediate or resolve the Hutch-Kinahan feud due to the threats against the accused's family and friends. Dowdall had driven Gerard Hutch to meet the republicans on February 20, 2016, Mr Gillane told the court.
The Special Criminal Court has already viewed CCTV footage of what the State says is Gerard Hutch making two separate journeys to Northern Ireland with Jonathan Dowdall on February 20 and March 7, 2016.
Jonathan Dowdall (44) - a married father of four with an address at Navan Road, Cabra, Dublin 7 - was due to stand trial for Mr Byrne's murder alongside Gerard Hutch but pleaded guilty in advance of the trial to a lesser charge of facilitating the Hutch gang by making a hotel room available ahead of the murder.
Dowdall has been jailed by the Special Criminal Court for four years for facilitating the Hutch gang in the notorious murder of Kinahan Cartel member David Byrne.
The former Dublin councillor is currently being assessed for the Witness Protection Program after agreeing to testify against former co-accused Gerard Hutch, who is charged with Mr Byrne's murder.
Mr Byrne, from Crumlin, was shot dead at the hotel in Whitehall, Dublin 9 after five men, three disguised as armed gardaí in tactical clothing and carrying AK-47 assault rifles, stormed the building during the attack, which was hosting a boxing weigh-in at the time. The victim was shot by two of the tactical assailants and further rounds were delivered to his head and body.
Mr Byrne died after suffering catastrophic injuries from six gunshots fired from a high-velocity weapon to the head, face, stomach, hand and legs.
Mr Hutch's two co-accused - Paul Murphy (59), of Cherry Avenue, Swords, Co Dublin and Jason Bonney (50), of Drumnigh Wood, Portmarnock, Dublin 13 have pleaded not (NOT) guilty to participating in or contributing to the murder of David Byrne by providing access to motor vehicles on February 5, 2016.
The trial continues this afternoon before Ms Justice Tara Burns sitting with Judge Sarah Berkeley and Judge Grainne Malone.
