Jonathan Dowdall, a former co-accused of Gerard 'The Monk' Hutch who has turned State's witness, will "finally" give evidence in the Regency Hotel murder trial on Monday, despite the status of his Witness Protection Programme application remaining unknown, the Special Criminal Court has heard.
After the non-jury court was told on Friday a decision on Dowdall's status within the Witness Protection Programme (WPP) would not be made until the middle of January next year, Mr Hutch's barrister Brendan Grehan SC said his client was "anxious" that his trial proceed, as he was not at all convinced about the timetable suggested or that it would necessarily "yield any fruit".
Before Dowdall takes the stand on Monday, a detective superintendent will give evidence the former Sinn Féin councillor's admittance into the WPP is "separate and distinct and not tied in any way to his performance in the witness box".
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.
On Thursday, judges at the non-jury court trial of Mr Hutch ruled the evidence to be given by the former Dublin City councillor was admissible in the trial, despite defence objections.
Dowdall intends to give evidence implicating Mr Hutch in the murder at the Regency Hotel. The former electrician has already been sentenced to four years by the three-judge court for the lesser offence of facilitating the murder of Mr Byrne and is being assessed for the WPP when he gets out of prison.
Defence counsel Mr Grehan has outlined there are two pillars of Dowdall's proposed evidence against his client, namely the handing over of the hotel key cards for a room in the Regency Hotel and "an alleged conversation" with Mr Hutch that took place in a park a number of days after the shooting. It was in this conversation that Dowdall says the accused confessed his direct involvement in the murder to him, the barrister said.
On Wednesday of this week, Mr Grehan submitted the issue as to whether or not Dowdall would be accepted into the WPP should be resolved before he gave evidence, so he was not "under an apprehension or misapprehension that it's based on performance".
Presiding judge Ms Justice Tara Burns then directed Mr Gillane to find out if Dowdall had been accepted into the WPP.
On Thursday, Ms Justice Burns said she was "astonished" the prosecution had still not been informed as to whether Dowdall, who was expected to enter the witness box this week, had been accepted into the WPP.
At a hearing on Friday, counsel for the DPP Sean Gillane Sc told the three judges Dowdall's assessment for the suitability of the WPP was ongoing and he could confirm the current situation and uncertainty does not arise from "any difficulty" with Dowdall. Nor does it arise with anything internally in the programme, he added.
The lawyer said Dowdall's assessment was "progressing at pace" and the assessment had been brought to a particular point. However, Mr Gillane said the point the assessment had reached required reports from external agencies with "people in disciplines which the court will be familiar with in terms of other trials".
The time, he said, in which these people could report was not within the control of the administrators of the programme. "I can confirm that all the relevant material that those people need to report has been transferred to them," he said.
In those circumstances, Mr Gillane said there was a "very solid expectation" that the reports would be submitted before the end of the month. He went on to say that they had to be submitted before the next step, which is when the review group makes a decision in terms of Dowdall's "admission or rejection or neither".
There was, the barrister said, a reasonable expectation a decision would be made by the middle of January but he was not going to offer the court a date because that would be "misleading" it.
Mr Gillane said Dowdall was a sentenced person in a prison in the State and it was not a difficulty created by him that "we are where we are".
Ms Justice Burns asked the prosecution counsel what his proposal was in terms of what the court did next.
Mr Gillane said he proposed the court heard Dowdall's evidence next week and he had indicated this to Mr Grehan. "I know there is a view that this decision should be made before the evidence is heard and I submit that this is not necessary and there have been situations where this has occurred," he continued.
Ms Justice Burns asked Mr Gillane: "Perhaps the court was under the misguided position that there would have been a decision in relation to this matter?".
Mr Gillane said he always thought it would be part of a "calculated decision" and he never thought Dowdall would be admitted to the programme within a week or two.
Mr Justice Burns told counsel the court is "here some time" since Dowdall made a statement on September 23, which in her view was "not two weeks".
She pointed out that Mr Grehan had said on Wednesday that he had no information as to what the package was in relation to Dowdall.
Mr Grehan said the defence simply had no information as to whether Dowdall was being accepted onto the WPP. "We have nothing. We don't have the first bit which is whether Dowdall was accepted into the programme and everything else is subsidiary to that," he said.
Mr Gillane submitted the average time it takes to be admitted into the WPP is about six months.
Ms Justice Burns said she did not accept this and she had done a case with a protected witness and it was done "far more quickly". "The proposal is that we receive Mr Dowdall without a decision being made," she said.
Mr Gillane said the prosecution had corresponded with the defence on October 13 and told them Dowdall had not not been admitted into the WPP and no financial or material benefits had been afforded to him.
The judge said the "court knows nothing" and the proposal was to proceed with Dowdall's evidence without any decision being made.
Mr Grehan said Mr Hutch wanted his trial to proceed from the start, even when they heard of Dowdall's "circumstances" at the beginning of October.
"Since then the spectre of Dowdall giving evidence has hung over the trial in various ways," he said.
The defence lawyer said Dowdall's testimony had been backloaded in the trial and they had never anticipated it would happen before December. "We did anticipate a decision would be made and there would have been some transparency but that doesn't appear to be the case," he stated.
Mr Grehan suggested the court rise until midday as he wanted to get "a very clear instruction" from his client on Mr Gillane's proposal about proceeding with Dowdall on Monday "notwithstanding the lack of information".
Counsel said he was not comfortable with the timetable proposed — that the reports would be available by the end of December — or with a reasonable expectation that a decision on Dowdall's status within the WPP would be made by the middle of January.
Having taken instructions from his client, Mr Grehan informed the three judges that Mr Hutch's position is that he is anxious his trial should proceed as he was not at all convinced about the timetable suggested or that it would necessarily "yield any fruit".
He said the defence had explained why it was that they would have liked to have known the information beforehand as "one of the things" was that Dowdall's admittance into the WPP is "separate and distinct and not tied in any way" to the evidence he gives in the trial.
Mr Grehan suggested that the matter could be dealt with if Dowdall "finally" gives evidence on Monday by the court simply advising him at the beginning of his testimony that it understands he is being assessed for the WPP but that his admittance into it is "separate and distinct to his performance" in the witness box. "I understand that to be the core condition of the WPP and that being the case we are happy to proceed on Monday," he said.
Mr Gillane said his view was that the two things were "utterly unconnected".
Mr Grehan suggested it would be "useful" that this come from the court rather than from Mr Gillane.
After the three judges rose for a few minutes to discuss them "taking a role" in the process, Ms Justice Burns said the court was "not anxious" to get involved in directing Dowdall into "what may or may not be the consequences of him giving evidence". "We don't want to involve ourselves in advising him of matters we have no evidence of," she said.
The judge said rather than the court giving a direction to Dowdall she proposed a "more preferable way" would be that evidence be called in Dowdall's presence on Monday from the appropriate person in the WPP.
"That also means Mr Grehan that if you have any questions you would also be in a position to cross-examine him. I presume the person is the chief superintendent over the programme," she said.
Mr Gillane said a chief superintendent was available to give evidence by video-link on Monday or a detective superintendent could come into court to give direct evidence.
Mr Grehan said he would prefer a "live witness".
Ms Justice Burns said the court would "prefer as high a level as possible" within the programme but that they would be happy to receive evidence from the detective superintendent.
The trial was adjourned until Monday, when Dowdall will take the stand.
At the opening of the trial, Mr Gillane said the State's case was that Mr Hutch had contacted Dowdall and arranged to meet him days after the shooting. Mr Gillane said the evidence would be that Mr Hutch told Dowdall that he was "one of the team" that murdered Mr Byrne at the Regency Hotel in 2016.
Jonathan 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 murder of Mr Byrne.
His father Patrick was jailed for two years before the Regency trial started after he also admitted his part in booking a room for the raiders.
Mr 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.
Mr Byrne died after suffering catastrophic injuries from six gunshots fired from a high-velocity weapon to the head, face, stomach, hand and legs.
Mr Hutch's two co-accused — Paul Murphy, 61, of Cherry Avenue, Swords, Co Dublin, and Jason Bonney, 50, of Drumnigh Wood, Portmarnock, Dublin 13, have pleaded not guilty to participating in or contributing to the murder of David Byrne by providing access to motor vehicles on February 5, 2016.