Conversations between Regency Hotel murder accused Gerard Hutch and former Sinn Féin councillor Jonathan Dowdall that were captured by a Garda bugging device are admissible in evidence and any issue about where the device travelled to is “a cloud” placed over the case by the defence, a prosecution barrister has told the Special Criminal Court.
Prosecution counsel agreed with the presiding judge it was the State’s case that once a surveillance device is placed and retrieved lawfully on a car within this jurisdiction, “then it does not matter a damn where the vehicle was in the meantime”.
Sean Gillane SC, for the Director of Public Prosecutions, submitted that an audio surveillance device is “simply an inanimate movable item” which had been “applied, sought, deployed, initiated and retrieved within the State” and that the data was recovered within the State. He added: “No question of extraterritoriality in truth arises’'.
He said: “Can I ask the court whether it is to be imputed to the Oireachtas that they are blind, deaf and oblivious to the existence of the border between here and Northern Ireland and in the context of the Criminal Justice Surveillance Act 2009, which has as one of its core functions the investigation of terrorist offences on one of the most porous borders in western Europe?”
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Mr Gillane submitted that the defence’s contention was that as soon as one reaches the border of the Carrickdale Hotel that “all bets are off and the bug doesn’t work”. The trial has heard that the vehicle crossed the Border at the Carrickdale Hotel in Dundalk Co Louth at 3.12pm on March 7th, crossing back into the Republic at 10.50pm that night at Aughnacloy in Co Monaghan.
Last Friday, defence barrister Brendan Grehan SC, for Mr Hutch, told the non-jury court that “on its face” there had been an illegal operation of the Criminal Justice Surveillance Act 2009 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 also submitted that the permission to deploy a bugging device that recorded conversations between his client and Dowdall were sought under “a culture of secrecy” and with “an unintentional lack of candour”. He stated that a surveillance device being deployed on a vehicle gathering intelligence while operating outside of the jurisdiction was in “contravention” of the terms of the Act.
Mr Gillane completed his submissions on Monday to the three-judge court on why the secret audio recording, which the State says is “part of the core” of its case, is admissible.
Mr Grehan will respond in full on Tuesday to Mr Gillane’s submissions before the three judges rule on the admissibility of the contents of the recorded conversations.
Mr Hutch (59), last of The Paddocks, Clontarf, Dublin 3, denies the murder of Mr Byrne (33) during a boxing weigh-in at the Regency Hotel on February 5th, 2016. The defence is objecting to the admissibility of almost eight hours of the contents of a 10 hour audio recording of conversations between Mr Hutch and Dowdall captured by a garda bugging device on March 7th, 2016. Mr Grehan argued that Dowdall’s Toyota Land Cruiser 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 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 gardaí were aware that Dowdall’s car was outside the jurisdiction for eight of the 10 hours of these recordings and that the evidence harvested from that “illicit fruit” should be excluded from the trial. Replying to the defence barrister’s submissions today, Mr Gillane said it was clear that the “admissibility challenge” has two separate strands to it.
On the one hand, the lawyer said, there was a challenge to the bug’s authorisation and complaints made in respect of the candour of retired Detective Superintendent William Johnston. Det Supt Johnston applied for authorisation to the District Court on February 17th, 2016 to employ the audio device on Dowdall’s Toyota with a view to “monitoring” the conversations of Dowdall and his associates.
Mr Gillane said on Monday “the heartbeat of the complaint” made by the defence was the “extraterritorial aspect” and the unlawful operation of the bugging device according to the Act, which he said was a question of statute interpretation.
Mr Gillane said the defence’s submission had started and ended with authorisation of a surveillance device in section 5(9) of the Criminal Justice Surveillance Act 2009 which stated “subject to any conditions imposed by the judge under subsection (5), an authorisation shall have effect both within the District Court district to which the judge is assigned and in any other part of the State”.
Counsel told the court that Mr Grehan had submitted that the laws promulgated by the Oireachtas were territorially limited and that the evidence garnered from a device which crosses the border must be excluded from the trial court because of the words “in any other part of the State”.
The barrister submitted that the Oireachtas was not introducing words of limitation but that these words “expanded the writ” of the District Court judge beyond his own district.
He also mentioned the meaning of the words “aircraft” and “a vessel, whether seagoing or not” in the interpretation section of the Act. “Can I ask, what is a purely rhetorical question, where do aeroplanes go, where do seagoing craft go, where the Oireachtas submits that these are places where audio surveillance devices can be put,” he said.
Mr Gillane suggested the interpretation that Mr Grehan was seeking the court to place on the Act was to give the Oireachtas an intention to pass a law which has “zero functionality”, akin to a “chocolate teapot’'.
The lawyer also referred to Det Supt Johnston’s “duty of candour” and submitted that the witness had “more than discharged” it by putting the intelligence he had “on the table” and setting it out in black and white. “He was not a cagey witness but a careful witness having regard to the role he had carried out in this difficult and dangerous work,” he said.
Counsel said it was clear from legal authorities that there is no obligation “to drown” a District Court judge in a “superfluidity of information” and that there is always something that a District Court judge is not told about.
Mr Grehan submitted last Friday that there had been “an unintentional lack of candour” as Det Supt Johnston had not alerted the judge about a tracker that was placed on the Toyota or that the vehicle may have been travelling outside the jurisdiction. In cross-examination, Det Supt Johnston told Mr Grehan that there was no reason why he did not 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.
Counsel further submitted that it has always been the prosecution case that the jeep “was north”, that intelligence received had led gardaí to believe that Dowdall had travelled north to meet members of the Continuity IRA and that his vehicle was being used to transport people of an organised crime group.
He said it was not borne out by the evidence that the District Court judge had been misled. “It’s the opposite of a lack of candour, it’s a fairly complete picture of the intelligence available at the time,” he added.
Referring to Mr Hutch’s right to privacy which had been submitted by his defence team, Mr Gillane said it was “considerably attenuated” and asked the court rhetorically if a privacy right existed when one is discussing murder in a car belonging to someone else.
In summary, Mr Gillane agreed with presiding judge Ms Justice Tara Burns that he was not urging on the court that the Criminal Surveillance Act 2009 allows for extraterritorial effect but that he was saying that it empowers the District Court judge to “deploy, initiate, retrieve and authorise” an audio surveillance device in this jurisdiction. “If it is deployed here, retrieved here and downloaded here that evidence is admissible and the extraterritorial issue is a cloud which Mr Grehan has placed over the case,” he said.
Ms Justice Burns asked the lawyer if a bug was placed on a car in this jurisdiction and it travels on a ferry to France where the fruits are transported, was he saying that once the surveillance device is placed and retrieved lawfully on the car within this jurisdiction, then it does not matter a damn where the vehicle was in the meantime as long as the bug had been placed in the jurisdiction pursuant to valid authorisation of the District Court. Mr Gillane said he was.
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 20th and March 7th, 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 7th at Kealy’s pub of Cloghran on the Swords Road. Further CCTV footage showed the car at the Maldron Hotel in Belfast at 5.35pm that evening.
Another clip showed the car returning to Kealy’s car park at 12.15am on March 8th, where Mr Hutch gets out 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 Programme 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 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 5th, 2016.
The trial continues tomorrow before Ms Justice Burns sitting with Judge Sarah Berkeley and Judge Grainne Malone.