Permission to use a Garda bug to record murder accused Gerard “The Monk” Hutch and an ex-Sinn Fein councillor was sought under “a culture of secrecy”, a court heard yesterday.
Defence barrister Brendan Grehan added “on its face” there had been an illegal operation of the Criminal Justice Surveillance Act 2009. He further claimed 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 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. Hutch, 59, of The Paddocks, Clontarf, Dublin, denies the murder of Kinahan cartel member David Byrne, 33, during a boxing weigh-in at the Regency Hotel on February 5, 2016.
Read more: Gerry 'The Monk' Hutch makes stunning statement in prison
At the Special Criminal Court, his defence is objecting to the admissibility of almost eight hours of a 10-hour audio recording of Hutch and ex-councillor Jonathan Dowdall on March 7, 2016. Mr Grehan argues Dowdall’s Toyota Land Cruiser was in the North from 3.10pm to 10.50pm when Dowdall allegedly drove them to meet with republicans.
The State’s case is Hutch asked Dowdall to arrange a meeting to mediate or resolve the Hutch-Kinahan feud due to threats against the accused’s family and friends. Mr Grehan has previously said his “core argument” is gardai were aware Dowdall’s jeep was outside the jurisdiction and evidence harvested from that “illicit fruit” should be excluded.
Counsel added 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 added: “There is no point making rules unless those rules have to be applied and that is the very essence of the rule of law.”
Mr Grehan said a surveillance device being deployed on a vehicle gathering intelligence while operating outside of the jurisdiction was in “contravention” of the Act. He added a district court judge being asked to issue an authorisation for a bug needs to be able to rely on “complete information”.
He said the detective superintendent was obliged to bring to the judge’s attention 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 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 Det Supt William Johnston, who was previously head of the National Surveillance Unit, has testified that he applied for authorisation to the District Court on February 17, 2016, to employ the audio device.
In cross-examination, he told Mr Grehan there was no reason why he didn’t tell the judge 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 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 oversight. He also submitted 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 State.
Mr Grehan said: “Both matters may have provoked an inquiry.” He added the outer limits of what a District Court judge can authorise is surveillance in the State and they have no authority to permit surveillance outside.
Counsel further submitted NSU members demonstrated the extreme care gardai take in terms of their personal onus and they made “crystal clear” they don’t and can’t operate in the North. Mr Grehan added: “And yet the prosecution want to put before the court the fruits of precisely that.”
The court has viewed CCTV footage of what the State says is Hutch making two journeys to the North with Dowdall on February 20 and March 7, 2016, just weeks after Mr Byrne was murdered.
It showed the defendant getting into the front passenger seat of Dowdall’s Land Cruiser at 2.23pm on March 7 at Kealy’s pub in Cloghran, on the Swords Road. Further clips showed the jeep at the Maldron Hotel in Belfast at 5.35pm that evening.
Another showed the jeep returning to Kealy’s car park at 00.15 on March 8, where Hutch gets out of the vehicle and into a BMW.
Dowdall, 44 – a married father-of- four from Navan Road, Cabra, Dublin – had also been accused of Byrne’s murder but pleaded guilty before the trial to a lesser charge of facilitating a gang by making a hotel room available ahead of the murder. He was jailed for four years.
The former Dublin councillor is currently being assessed for the Witness Protection Programme after agreeing to testify against Hutch, who denies Byrne’s murder.
He was killed when five men, three disguised as armed gardai and carrying AK-47 assault rifles, stormed the Regency. The victim was shot by two of the assailants.
Hutch’s co-accused – Paul Murphy, 61, of Cherry Avenue, Swords, Co Dublin and 50-year-old Jason Bonney, of Drumnigh Wood, Portmarnock, Dublin – deny participating in or contributing by providing access to motor vehicles on February 5, 2016.
The trial before Ms Justice Tara Burns sitting with Judge Sarah Berkeley and Judge Grainne Malone continues on Monday.
Read next:
- Court hears that 'The Monk' Gerry Hutch told Dowdall 'cops are going around like headless chickens'
- Gerry Hutch trial hears using tracker on vehicle in north would be illegal
- Hutch trial hears he was observed meeting man later caught with AK-47s
- Kinahan cartel furious at 'launderer' for going against strict instructions
- Grandmother of David Byrne dies during Regency shooting trial
