State witness Jonathan Dowdall now might not get to take the stand before Christmas - due to questions about the status of his witness protection application.
The revelation came on what is the 28th day of the Special Criminal Court trial of Gerry ‘The Monk’ Hutch on Wednesday - after it was thought that Dowdall could give evidence this week. Ms Justice Tara Burns presiding expressed concern that “we may not have Mr Dowdall before Christmas” due to a question mark over the status of his witness protection application.
The judge had said that time was going to be set aside on Thursday afternoon to potentially have Dowdall take the stand - but that’s now a “non runner.” Following lengthy submissions from Defence Counsel Brendan Grehan SC throughout the day - in objecting to Dowdall’s evidence, Ms Justice Burns asked the prosecution what the status of Mr Dowdall’s witness protection application was.
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Before he was sentenced to four years in prison for his role in facilitating the murder of David Byrne, the court had heard he was being considered for the witness protection programme due to the ongoing threat to his life. However Prosecuting Counsel Sean Gillane told the court that he had made efforts to find out what the status of Dowdall’s application was, but he did not yet have an answer.
As a result the judge expressed concern that an issue could arise where further documentation pertaining to any witness protection arrangement might have to be presented in court - thereby further delaying Dowdall taking the stand. However the three judges still have to return with a ruling on Thursday over whether Dowdall can take the witness stand - after lengthy objections from Mr Grehan SC.
In his arguments before the court Mr Grehan stated that Dowdall had effectively gotten what he wanted - in having the murder charge dropped before he was willing to make statements against Mr Hutch to gardai. Mr Grehan also claimed the former Sinn Fein councilor had the “power in the relationship” in terms of him imparting information to gardai.
“Mr Dowdall is I would suggest not irreversibly committed to any decision until he is sure through his lawyers that the murder charge was dropped and only in those circumstances he would make a statement,” Mr Grehan said. He said Dowdall’s evidence “has been procured by that strategy.
“He has got what he wants,” he said. “He then has to follow through with what he has promised to deliver.”
Mr Grehan said his submission was that this was an indication of the beginning of a “quid pro quo arrangement.” He also said his submission was that Dowdall had “played a very powerful hand” in ensuring that the murder charge was dropped against him in return for him giving evidence in the trial against Gerry Hutch.
He also said that Dowdall effectively had the Director of Public Prosecutions “over a barrel.”
“That incredibly powerful incentive for Dowdall to give a statement against his co-accused Mr Hutch had tainted the process and as a result it is not possible for Mr Hutch to obtain a trial in due course of law if Dowdall is permitted to give evidence in this case,” he added.
Mr Grehan said there wasn’t any kind of clarity as to why the DPP, which had rejected Dowdall’s request for the murder charge to be dropped - then reversed two weeks later. He said that given the “absence of transparency” the court is “being kept in the dark”in relation to how that came about.
He said it was therefore “impossible to come to any other conclusion” other than the dropping of the charge, and Dowdall’s willingness to make statements and become State witness being connected, having occurred around the same time. However, gardai had already told the court that this was not the case, and that there was no collusion with Mr Dowdall on this.
Mr Grehan outlined how in his meeting with gardai Jonathan Dowdall was not cautioned, and that officers who met with him did not record the meet. He said he simply doesn’t accept the contention that the meeting could not be recorded just because it was confidential.
Now he said because of a lack of a record of that meeting, there is little of it to refer to in cross examining Dowdall about it. Dowdall, he said, “doesn’t have to take any ownership of the notes that were kept” by gardai from the meeting.
“He can simply say ‘I didn’t say that, or Garda Connolly took that down wrong or he mistyped it,” he said. Mr Grehan also took issue with how an account by Jonathan Dowdall to gardai about meeting Gerry Hutch ‘evolved’ over the course of the conversation.
At first Dowdall said he met with Gerry Hutch at his brother Patsys house and exchanged the Regency hotel room keys with him there. Then he said he gave it to the ‘Hutches’ at Richmond Road, before then saying it was Gerry Hutch that he met at Richmond Road.
Mr Grehan said a recording of this conversation would have made sense and as a result of there not being one we are left in a situation where “all we have is effectively notes” that were not read over, and which are admitted to not being complete in various parts.
Critically, he said, at all stages, these notes were never taken ownership of by Mr Dowdall - and this “renders them virtually useless” in terms of cross examining him.
Following this meeting with Dowdall months passed by before any contact was made between him and gardai again, Mr Grehan said.
That was in spite of a three hour conversation with him in which he made several serious allegations about numerous individuals - and had been told to go off and make a more comprehensive timeline of his claims.
Mr Grehan said Dowdall’s solicitor ended up writing “increasingly irate letters” to Detective Superintendent Paul Scott asking why gardai were not coming back to him.
Leaving all that to one side Mr Grehan said it suggests that there seemed to be a “lack of urgency” with gardai in getting back to Dowdall for reasons which suggest they had a “disinterest” in what he had to say.
Eventually when a meeting was arranged on July 4, Dowdall showed up with a typed 42 page document - which he was asked to read aloud and then sign.
However Mr Grehan said the document “isn’t headed in any way” and it is “not stated to be anybody’s statement” and “is not signed by anyone.”
Each page however did have the initials ‘JD’ written on it by Mr Dowdall, who instead asked his wife Patricia to read the document out to gardai - which she did.
Mr Grehan said Dowdall was being “cagey” and despite normal practice where a person who makes a statement takes ownership of it by reading it out to gardai - that didn’t happen.
Then in a later eight page document Mr Dowdall effectively “explains away” everything that was said in the 10 hour taped conversation between him and Gerry Hutch in the Land Cruiser. Dowdall had told gardai that he was “talking rubbish” because of “all the tablets” he was on at the time.
He said Hutch “would never tell me anything” and he “always changed the subject,” and that the only time he told him anything was the day he met him in the park - where he allegedly confessed to his role in the murder. Dowdall had said he was “disgusted” and “ashamed” of himself and how he was acting and what he was saying on the tapes.
“He was effectively explaining away all the comments he had made,” Mr Grehan said. The Defence counsel said the significance of this is the eight page document is the only document gardai had to produce to the DPP “in terms of the original basis for bringing a murder charge against Mr Dowdall.
Dowdall’s claims about the tapes meant that he was telling a “load of lies” and he had claimed Gerry Hutch was lying on the audio as well. Mr Grehan said the document is very significant in itself because Dowdall is providing gardai with a separate account in relation to the audio of the trip - from his statement.
“It is clearly my submission that Mr Dowdall was manipulating the situation yet again,” Mr Grehan said - by providing information in such a way as both these matters can in fact be separated. In a further meeting with Dowdall on July 4, gardai again did not record it, Mr Grehan said - and again on July 12 they didn’t.
He said that whatever excuse there was for not recording the meeting the first time, none could be made about the second or third. And he said in particular what transpired in the third meeting was a “variety of accounts,” or “half accounts.”
He said it was his submission that the fact that these matters were not recorded puts the defence at a “gross disadvantage” in terms of Gerry Hutch receiving a fair trial. However, Prosecuting Counsel Gillane objected to Mr Grehan’s claims, and said that Mr Hutch was receiving a fair trial that was entirely above board.
He said the trial was not in “darkness,” and that all relevant documentation and notes had been provided to the defence about every meet with Dowdall. He also submitted that much of Mr Grehan’s arguments could be made directly to Mr Dowdall in cross examination - rather than now before the court.
The judges will deliver a ruling on the matter tomorrow afternoon.
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