The permission to deploy a Garda bugging device that recorded conversations between Regency Hotel murder accused Gerard Hutch and ex-Sinn Féin 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 on Friday to the three-judge court on why the secret audio recording, which the State says is “part of the core” of its 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 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 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 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 jeep 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.
Det Supt Eugene Lynch has given evidence of some of the records of the tracking device that had been on Dowdall’s jeep on March 7th, 2016, the date of the audio recording. He said the jeep crossed the Border at the Carrickdale Hotel at 3.12pm on March 7th, crossing back into the Republic at 10.50pm that night at Aughnacloy in Co Monaghan.
At the outset of his submissions on Friday, 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 effect 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 while 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 Det Supt 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 17th, 2016, to employ the audio device on Dowdall’s jeep with a view to “monitoring” the conversations of Dowdall and his associates.
Mr Grehan argued on Friday 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.
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”.
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 Mr 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 Mr Byrne.
The trial continues on Monday before Ms Justice Tara Burns sitting with Judge Sarah Berkeley and Judge Grainne Malone.