The Special Criminal Court is to hear a 10-hour recording of bugged conversations between murder accused Gerard Hutch and former Sinn Féin councilor Jonathan Dowdall as they allegedly drove to Northern Ireland a month after the Regency Hotel shooting.
Undercover gardaí had planted covert audio and tracking devices on Dowdall’s jeep and the recording is at the “core” of the prosecution’s case, the court was told.
Mr Hutch’s lawyer is objecting to the admissibility of the audio evidence, arguing that a judge who authorized the surveillance was mistaken. His defense also maintains that for eight hours of the recording, the jeep was in Northern Ireland and the gardaí were operating outside the law.
Judge Tara Burns, presiding, said the non-jury court would hear all the evidence before legal submissions are made.
Mr Hutch is on trial charged with murdering David Byrne who was shot dead in a gangland attack at the Regency in Dublin on February 5, 2016.
Two co-accused men, Jason Bonney and Paul Murphy, are accused of helping the criminal organization responsible by providing cars used to drive the assailants away after the shooting.
Mr Byrne (33), a Kinahan gang member, was killed when three assault rifle-wielding masked gunmen, disguised as ERU gardai, stormed the Regency in north Dublin along with an armed man dressed as a woman in a blonde wig, and another in a flat cap.
The attack on a boxing weigh-in event happened as a bloody feud raged between the Kinahan and Hutch gangs.
Mr Hutch (59), of The Paddocks, Clontarf, Dublin, Mr Murphy (61) of Cherry Avenue, Swords and Mr Bonney (51) of Drumnigh Wood, Portmarnock, deny the charges against them.
Before the trial started, Jonathan Dowdall and his father Patrick were jailed for facilitating the murder by booking a room at the Regency for use by the attackers.
The court heard in the weeks after the raid, gardaí believed Jonathan Dowdall and Mr Hutch had been meeting “to organize criminal activity.”
Undercover detectives planted a tracker on Dowdall’s jeep before he allegedly drove Mr Hutch through Northern Ireland to Donegal for a meeting with IRA member Shane Rowan on February 20, 2016.
The court heard Dowdall’s jeep had an audio surveillance device on it when he allegedly drove Mr Hutch to Northern Ireland for a meeting with republicans on March 7, 2016.
The prosecution is seeking to use in evidence a recording of a purported conversation between the pair that day.
The recording is being objected to by Mr Hutch’s defense in a voir dire, or trial within the trial to determine the admissibility of the evidence.
Prosecutor Sean Gillane SC said audio recordings from four dates had been disclosed but he was only seeking to put forward evidence of one – March 7, 2016 into the early hours of the following day.
The prosecution wanted to put forward all the evidence to the court, to include the recording itself and a transcript as an aid to following it.
This would provide a context for the judges when legal submissions are made, he said.
The court heard the audio device that was deployed was authorized by a district court judge on February 17, 2016.
Brendan Grehan SC, for Mr Hutch, said he had made a discrete submission challenging the legality of the authorization based on an argument that there was a “lack of candor” in what was put before the district court judge. If successful in this he would be making a submission that the “entire fruits” of that authorization – the recording – should be excluded in evidence.
If that did not succeed, he would be making a second argument. The recording was around 10 hours long, from 2.20pm to after 12am on March 7, 2016. The first part of the audio was up to 3.10pm, when Dowdall’s Land Cruiser with a passenger identified as Gerard Hutch crossed the border into Northern Ireland. the Carrickdale Hotel on the M1 in Co Louth.
“From that point on, for the next approximately eight hours, the jeep is in Northern Ireland, it’s outside this jurisdiction and any material garnered at that stage is clearly outside the remit of the (Surveillance) Act,” Mr Grehan said.
The only evidence to date of the time the jeep came back into this jurisdiction was from a National Surveillance Unit member who spotted it in Ardee, Co Louth at 11.36pm that night.
This was the importance of Mr Hutch’s defence’s concern about the tracker device in recent days of the trial as it could tell where the vehicle was at all times.
His “core argument” would be that at all relevant times when the jeep was outside the jurisdiction, for eight of the 10 hours that Mr Gillane wished the court to hear, that gardaí were aware it was outside the jurisdiction and they were operating outside the legal authorization granted by the district court judge, and the Act.
“The evidence harvested from that illicit fruit should be excluded,” he said.
The court would have to listen to approximately 10 hours of recording, it would take about three days and the only question was whether it should do that at the beginning or the end, Mr Grehan said.
Mr Gillane said the evidence was perhaps “the core” of the prosecution’s case.
Ms Justice Burns said the court would proceed as the prosecution proposed as it was preferable to hear all the evidence in all the issues that arise “in one go rather than break it up.”
The first witness in the issue, Garda AQ of the NSU said on a date after February 17, 2016, he ensured the deployment of a surveillance device in Jonathan Dowdall’s jeep.
This was “to capture conversations exclusively within the vehicle” and he ensured it was retrieved on or before May 14 that year.
As part of his observations during an operation on February 19, 2016 the court heard he saw Dowdall’s father, Patrick walking on Baggot Road, Dublin 7 towards the Hole in the Wall pub on Blackhorse Avenue.
A few moments later, Patrick Dowdall walked back carrying a white plastic bag and in the company of Shane Rowan, who the court previously heard was an IRA member.
Gda AQ lost sight of them and when he saw Patrick Dowdall again, he no longer had the bag and returned home.
In cross-examination, Gda AQ said it was “unlikely” that audio devices could capture conversations from someone standing outside a vehicle, with the doors open.
Audio devices could not be listened to live, he said, but at certain stages the material could be downloaded. The devices did not capture locations and a separate tracker was needed for that.
Asked if he was aware there was a tracker on the jeep when he placed the audio device inside, he replied that he had also put the tracker on. The tracker contained a logging device.
Mr Grehan asked him if a tracker enabled “boots on the ground” officers to be told where to be when a vehicle was under surveillance.
Gda AQ said the tracker could not tell where a vehicle was going to be. Mr Grehan said if something was moving south it did not take a “huge Sherlock Holmes level of deduction” to surmise that it might be heading back towards Dublin.
Gda AQ said that was a reasonable assumption but a tracker was only a “minor aid” to a surveillance team.
The recordings could not be edited as they were specifically for court use.
Mr Grehan said former head of the NSU William Johnson had said if anyone deemed to be innocent was in a vehicle, monitoring would be “discontinued” to protect privacy rights.
Gda AQ said a device could be turned off remotely but he did not know if this happened.
The trial continues before Ms Justice Burns, Judge Sarah Berkeley and Judge Grainne Malone.