The permission to deploy a garda bugging device that recorded conversations between Regency Hotel murder accused Gerard 'The Monk' Hutch and ex Sinn Fein councillor Jonathan Dowdall was sought under "a culture of secrecy" and with "an unintentional lack of candour", defence lawyers have told the Special Criminal Court.
Defence barrister Brendan Grehan SC also submitted to the non-jury court that "on its face" there had been an illegal operation of the Criminal Justice Surveillance Act 2009 in this case and that the prosecution was seeking to "wheel the evidence in" which "extended beyond the territorial boundaries" and say "none of that matters".
Mr Grehan completed his submissions today to the three-judge court on why the secret audio recording, which the State says is "part of the core" of their case, is inadmissible.
Sean Gillane SC, prosecuting, will respond to Mr Grehan's arguments on Monday before the three judges rule on the admissibility of its contents having regard to the extraterritoriality issue.
Mr Hutch, 59, last of The Paddocks, Clontarf, Dublin 3, denies the murder of Kinahan Cartel member David Byrn, 33, during a boxing weigh-in at the Regency Hotel on February 5, 2016.
The defence is objecting to the admissibility of almost eight hours of the contents of a ten hour audio recording of conversations between Mr Hutch and Dowdall captured by a garda bugging device on March 7 2016. Mr Grehan argues that Dowdall's Toyota Land Cruiser jeep was outside the State in Northern Ireland from 3.10pm to 10.50pm that day, when Dowdall allegedly drove the two men to the North to meet with republicans.
The prosecution's case is that Mr Hutch had asked Dowdall to arrange a meeting with his provisional republican contacts to mediate or resolve the Hutch-Kinahan feud due to the threats against the accused's family and friends.
Mr Grehan has previously said his "core argument" is that gardai were aware that Dowdall's jeep was outside the jurisdiction for eight of the ten hours of these recordings and that the evidence harvested from that "illicit fruit" should be excluded from the trial.
Detective Superintendent Eugene Lynch has given evidence of some of the records of the tracking device that had been on Dowdall’s jeep on March 7, 2016, the date of the audio recording. He said the jeep crossed the border at the Carrickdale Hotel at 3.12pm on March 7, crossing back into the Republic at 10.50pm that night at Aughnacloy in Co Monaghan.
The non-jury court finished listening to the ten hours of audio recordings today which began at 2.20pm on Monday, March 7 2016 leading into the early hours of Tuesday, March 8.
At the outset of his submissions today, Mr Grehan said that a clear "purview" of the Criminal Justice Surveillance Act 2009, with the checks and balances built into it, shows it was confined to within the State. He argued that a District Court judge cannot grant authorisation for a surveillance device that could have affect outside the jurisdiction saying: "There is no point making rules unless those rules have to be applied and that is the very essence of the rule of law".
Counsel stated that a surveillance device being deployed on a vehicle gathering intelligence whilst operating outside of the jurisdiction was in "contravention" of the terms of the Act.
The barrister submitted that a District Court judge, who is being asked to issue an authorisation for a bugging device, needs to be able to rely on "complete information" put before the court. He said in this case the detective superintendent was obliged to bring to the judge's attention that he had already approved the deployment of a tracker and logging device on Dowdall's vehicle 36 hours earlier before asking him to deploy a third device on it. Counsel submitted that there had been a "very great failure to disclose information" in this case, which had created a "huge imbalance of information" between the applicant and the judge.
Retired Detective Superintendent William Johnston, who was previously head of the National Surveillance Unit (NSU), has testified that he applied for authorisation to the District Court on February 17, 2016 to employ the audio device on Dowdall's jeep with a view to "monitoring" the conversations of Dowdall and his associates. In cross-examination, Mr Johnston told Mr Grehan that there was no reason why he didn't tell the judge that he had already approved the deployment of a tracker and logging device before looking for the judge to authorise the deployment of the bug.
Mr Grehan argued today that there had been "a certain culture of secrecy" which may be "a throwback" to the fact that the Crime and Security unit was operating surveillance long before the Act without any form of oversight. He also submitted that there had been "an unintentional lack of candour" as Mr Johnston had not alerted the judge about the tracker or that the vehicle may have been travelling outside the jurisdiction. "Both matters may have provoked an inquiry from the judge as to whether or not he would see how the tracker worked first," he said.
He outlined that a duty of candour involves "not just what is not said but what is said that misleads".
Regarding the admissibility of the audio recording, the lawyer submitted that there seemed to be a suggestion from NSU members that they "can set something and it can go wherever and if it comes home we can have a good look at it, harvest whatever is got and present whatever to the court". Mr Grehan emphasised that the Act did not permit this and that it was not "some kind of game".
The outer limits of what a District Court judge can authorise under this Act is surveillance in the State and they have no authority to permit surveillance outside the State, he said.
Counsel further submitted that the evidence from the NSU members demonstrated the extreme care that gardai take in terms of their personal onus and they had made "crystal clear" to the court that they don't and can't operate in Northern Ireland. "And yet the prosecution want to put before the court the fruits of precisely that," he said, telling the court that the audio recording should not be admitted into evidence.
The Special Criminal Court has viewed CCTV footage of what the State says is Mr Hutch making two separate journeys to Northern Ireland with Dowdall on February 20 and March 7, 2016, just weeks after Mr Byrne was murdered.
CCTV footage has been shown to the court of Mr Hutch getting into the front passenger seat of Dowdall's Land Cruiser at 2.23pm on March 7 at Kealy's pub of Cloghran on the Swords Road. Further CCTV footage showed the jeep at the Maldron Hotel in Belfast at 5.35pm that evening. Another clip showed the jeep returning to Kealy's car park at 00.15 in the early hours of the morning on March 8, where Mr Hutch gets out of the jeep and into a BMW.
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, 61, of Cherry Avenue, Swords, Co Dublin and Jason Bonney, 50, of Drumnigh Wood, Portmarnock, Dublin 13 have pleaded 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 on Monday before Ms Justice Tara Burns sitting with Judge Sarah Berkeley and Judge Grainne Malone.
READ NEXT:
- Gardai arrest two men after crime spree involving attempted hijacking, assaults and robbery
- Smyths manager reveals most popular toys for Christmas 2022 that are already flying off shelves
- Irish pub price update as Heineken 'adding insult to injury' with new offer
- Met Eireann forecast unseasonably warm weekend as temperatures crawl back up to mid teens
- Paralysed Irish mob boss Owen Maguire using vehicle recovery business as a 'front for drug deals'
Get breaking news to your inbox by signing up to our newsletter
