Judges rule to listen to 10 hours of Hutch and Dowdall conversation captured by gardaí

Hutch's defence lawyers argue that gardaí were aware that Dowdall's car was outside the jurisdiction for eight of the 10 hours of those recordings and that the evidence harvested from that 'illicit fruit' should be excluded from the trial

Members of the Garda Armed Support Unit on duty at the Special Criminal Court. 

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.

Mr Hutch’s defence lawyer Brendan Grehan SC submitted on Thursday 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 March 7, 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.

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 5, 2016.

The prosecution case is that Mr 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 February 20, 2016, Mr Gillane told the court. Evidence has been given that a tracking device was on Dowdall's jeep when it travelled north on February 20.

Audio surveillance

The State also said in its opening speech that Dowdall drove Gerard Hutch north to a second meeting in Strabane in Co Tyrone on March 7, 2016, and that the vehicle was the subject of audio surveillance. 

Mr Gillane said Dowdall and Mr 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 February 20 and March 7, 2016.

Addressing the non-jury court on Thursday, Mr 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.

Mr 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 March 7, 2016, leading into the early hours of March 8 before the court.

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

Mr 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 Mr 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, Mr Grehan said the most he was suggesting was that evidence be heard that is date-specific and that it went up to February 17, 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 February 17, 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.

'Lack of candour'

Mr Grehan said on Thursday 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.

Mr Grehan said the audio from March 7 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 March 7 when Mr 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".

Relayed in real time

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.

Mr 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 10 hours of recordings.

In reply, Mr Gillane said everything that Mr 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 Mr 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".

The trial continues on Monday.