Conversations between Regency Hotel murder accused Gerard 'The Monk' Hutch and ex-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" which the defence has placed over the case, 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, prosecuting, 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''.
Last Friday, Brendan Grehan, defending Mr Hutch, told 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".
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 17, 2016 to employ the audio device on Dowdall's jeep with a view to "monitoring" the conversations of Dowdall and his associates.
However, Mr Gillane submitted today that "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 authorization 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 sea-going or not" in the interpretation section of the Act. "Can I ask, what is a purely rhetorical question, where do airplanes go, where do sea-going 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 continued. 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 jeep 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 didn't 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 applied when one is discussing murder in a jeep 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 trial continues on Tuesday.