JUDGES AT THE Special Criminal Court have ruled that they will listen to 10 hours of conversations between murder accused Gerard ‘The Monk’ Hutch and ex-Sinn Féin Councillor Jonathan Dowdall that were captured by gardaí, despite Dowdall’s bugged jeep having been outside of the State during the majority of the recordings.

Hutch’s defence lawyer Brendan Grehan SC submitted today that their “core argument” would be that gardaí were aware that Dowdall’s Toyota Land Cruiser was outside the jurisdiction for eight of the 10 hours of those recordings from 7 March 2016 and that the evidence harvested from that “illicit fruit” should be excluded from the trial.

The non-jury court will rule on the extraterritoriality issue raised about the audio recordings once they have finished listening to the 10 hours.

Prosecuting counsel Sean Gillane SC described the recordings as “part of the core” of the State’s case.

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 5 February 2016.

The prosecution case is that Hutch had asked Jonathan Dowdall to arrange a meeting with provisional republicans to mediate or resolve the Hutch-Kinahan feud due to the threats against the accused’s family and friends. Dowdall had driven Gerard Hutch to meet the republicans on 20 February 2016, Gillane told the court. Evidence has been given that a tracking device was on Dowdall’s jeep when it travelled north on 20 February.

The State also said in their opening speech that Dowdall drove Gerard Hutch north to a second meeting in Strabane in Co Tyrone on 7 March 2016 and that the vehicle was the subject of audio surveillance. Gillane said Dowdall and Hutch’s conversation was recorded and “many topics were traversed” including events at the Regency, the existence of the feud with the Kinahan Organised Crime Group, the personnel and “efforts to make peace or agree a ceasefire”.

The Special Criminal Court has already viewed CCTV footage of what the State says is Gerard Hutch making two separate journeys to Northern Ireland with Jonathan Dowdall on 20 February and 7 March 2016.

Audio recordings

Addressing the non-jury court today, Gillane said it was appropriate that the court dealt with the issue of audio evidence as the trial was in a “voir dire” [legal argument] in relation to its admissibility.

Gillane said audio recordings from four separate dates had been disclosed to the defence and that the prosecution was seeking to place an audio recording from 7 March 2016 leading into the early hours of 8 March before the court.

“That is the evidence which objection is being taken from Mr Grehan,” he added.

Gillane said because the court is in “voir dire” he wanted to put before it the audio recording and a transcript as an aid.

“I’m asking the court as part of the voir dire to allow me to do that so all appropriate submissions can be made in an appropriate context,” he submitted.

Counsel said that Grehan wanted to make a “narrow submission” concerning some class of rights based argument, which he did not think could be advanced in a vacuum.

In reply, Grehan said the most he was suggesting was that evidence be heard which is date specific and that it went up to 17 February 2016, when an authorisation for the audio was granted by a District Court judge.

Retired Detective Superintendent William Johnston, who was previously head of the National Surveillance Unit (NSU), testified this week that he applied for authorisation to the District Court on 17 February 2016 to employ the audio device on Dowdall’s grey Toyota Land Cruiser with a view to “monitoring” the conversations of Dowdall and his associates.

Grehan went on to say today that he wanted to challenge the lawfulness of the authorisation based on “the lack of candour” that was put before the District Court judge causing him to issue the authorisation for the bugging device. If he was successful, the barrister said, he would be making a submission that the “entire fruits of the authorisation” which was garnered by the audio in Dowdall’s jeep should be excluded.

Cross-examination

Under cross-examination on Tuesday, Grehan asked Johnston if there was any reason why he would not have told the District Court judge 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.

“There is no reason why I didn’t do that,” he replied.

Grehan went on to say that the audio from 7 March was approximately 10 hours long, covering a timespan from approximately 2.20pm in the afternoon to approximately the same time after midnight.

He said it would be the defence’s contention that the first part of the audio covers the time period up to 3.10pm on 7 March when Hutch is the front seat passenger in Dowdall’s Land Cruiser, which crosses the border on the M1 at the Carrickdale Hotel in Dundalk Co Louth.

“From that point on, for approximately the next eight hours, the jeep is in Northern Ireland, outside this jurisdiction and any material garnered at that stage is outside the remit of the Criminal Justice Surveillance Act 2009 and the remit of gardaí and the NSU,” he outlined.

He added: “There is a subsidiary argument, the only evidence we have to date is from an NSU officer who spotted the vehicle at 11.36pm that night when the jeep came back into the jurisdiction. Hence our concern of the importance of the tracker in the case”.

Counsel said the tracker would have relayed in real time or as close to real time where the vehicle was at all times to those who were monitoring it.

The defence’s “core argument”, he said, would be that at all relevant times when the jeep was outside the jurisdiction for eight out of the 10 hours on 7 March, that gardaí were aware it was outside the jurisdiction and operating outside the legal jurisdiction granted by the District Court judge and that therefore the evidence harvested from that “illicit fruit” should be excluded.

Grehan said the only question was whether the court felt it should hear the legal argument at the beginning or end of the audio recording. The barrister said what he was submitting was really only “a concern for the court’s time” and that it would take three days for the court to listen to the ten hours of recordings.

In reply, Gillane said everything that Grehan had submitted had “fortified” him in respect of his intended approach. He said the audio recording was “part of the core” of the State’s case and that it would take two and a half days to hear.

After rising for a few minutes, presiding judge Ms Justice Tara Burns said in light of the fact that Grehan was not “fully objecting” to the matter it was preferable to hear the audio recording “in one go rather than breaking it up”. She ruled that the court would deal with it “as a block” rather than separating matters”.

NSU member

The court also heard from Garda National Surveillance Unit Member AQ, who cannot be identified by order and confirmed to Gillane that he deployed a surveillance device on Dowdall’s Land Cruiser on a date after 17 February 2016, which was “to capture conversations exclusively” within the vehicle. The device was retrieved before 14 May that year, he said.

The witness said he met with his colleague Garda Janice Byrne on 14 March 2016 and supplied her with the audio recording from 7 March.

Under cross-examination, Member AQ agreed with Grehan that he had deployed the audio device by placing it into the car. Asked if the monitoring or listening of the device was a “different thing”, the officer said he would have listened to “bits” of the audio but that there was a specific number of people who had listened to it.

The officer said the device had no capability of being listened to “live”. Once the device was deployed, at certain stages it was downloaded and then uploaded onto the system in his office.

He said the audio device did not work as a tracker and did not capture locations.

Member AQ told Grehan that he had also put the tracker device on the Land Cruiser. He said a tracking device was deployed outside the vehicle, which tracked the movements of the jeep in live time, and inside was the audio device.

Member AQ said the audio device cannot be interfered with as it is password protected and once it is uploaded only the name of the file can be changed.

Jonathan Dowdall (44) – a married father of four with an address at Navan Road, Cabra, Dublin 7 – was due to stand trial for 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 Byrne’s murder.

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.

Byrne died after suffering catastrophic injuries from six gunshots fired from a high-velocity weapon to the head, face, stomach, hand and legs.

Hutch’s two co-accused – Paul Murphy (59), of Cherry Avenue, Swords, Co Dublin and Jason Bonney (50), of Drumnigh Wood, Portmarnock, Dublin 13 have pleaded not (NOT) guilty to participating in or contributing to the murder of David Byrne by providing access to motor vehicles on 5 February 2016.

The trial continues on Monday before Ms Justice Burns sitting with Judge Sarah Berkeley and Judge Grainne Malone.

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