The permission to deploy a garda bugging device that recorded conversations between Regency Hotel murder accused Gerard 'The Monk' Hutch and former Sinn Féin councillor Jonathan Dowdall was sought under "a culture of secrecy" and with "an unintentional lack of candour", defence lawyers have told the Special Criminal Court.
Defence barrister Brendan Grehan SC also submitted to 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".
Mr Grehan completed his submissions on Friday to the three-judge court on why the secret audio recording, which the State says is "part of the core" of their case, is inadmissible.
Sean Gillane SC, prosecuting, will respond to Mr Grehan's arguments on Monday before the three judges rule on the admissibility of its contents having regard to the extraterritoriality issue.
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 defence is objecting to the admissibility of almost eight hours of the contents of a 10-hour audio recording of conversations between Mr Hutch and Dowdall captured by a garda bugging device on March 7th, 2016. Mr Grehan argues that Dowdall's Toyota Land Cruiser jeep was outside the State in Northern Ireland from 3.10pm to 10.50pm that day, when Dowdall allegedly drove the two men to the North to meet with republicans.
The prosecution's case is that Mr Hutch had asked Dowdall to arrange a meeting with his provisional republican contacts to mediate or resolve the Hutch-Kinahan feud due to the threats against the accused's family and friends.
Mr Grehan has previously said his "core argument" is that gardai were aware that Dowdall's SUV was outside the jurisdiction for eight of the 10 hours of these recordings and that the evidence harvested from that "illicit fruit" should be excluded from the trial.
Detective Superintendent Eugene Lynch has given evidence of some of the records of the tracking device that had been on Dowdall’s SUV on March 7th, 2016, the date of the audio recording.
He said the vehicle crossed the border at the Carrickdale Hotel at 3.12pm on March 7th, crossing back into the Republic at 10.50pm that night at Aughnacloy in Co Monaghan.
The non-jury court finished listening to the 10 hours of audio recordings on Thursday which began at 2.20pm on Monday, March 7th 2016 leading into the early hours of Tuesday, March 8th.
Checks and balances
At the outset of his submissions on Friday, Mr Grehan said that a clear "purview" of the Criminal Justice Surveillance Act 2009, with the checks and balances built into it, shows it was confined to within the State. He argued that a District Court judge cannot grant authorisation for a surveillance device that could have affect outside the jurisdiction saying: "There is no point making rules unless those rules have to be applied and that is the very essence of the rule of law".
Counsel stated that a surveillance device being deployed on a vehicle gathering intelligence whilst operating outside of the jurisdiction was in "contravention" of the terms of the Act.
The barrister submitted that a District Court judge, who is being asked to issue an authorisation for a bugging device, needs to be able to rely on "complete information" put before the court.
He said in this case the detective superintendent was obliged to bring to the judge's attention 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. Counsel submitted that there had been a "very great failure to disclose information" in this case, which had created a "huge imbalance of information" between the applicant and the judge.
Retired Detective Superintendent William Johnston, who was previously head of the National Surveillance Unit (NSU), has testified that he applied for authorisation to the District Court on February 17th, 2016 to employ the audio device on Dowdall's vehicle with a view to "monitoring" the conversations of Dowdall and his associates.
In cross-examination, Mr 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.
Mr Grehan argued on Friday that there had been "a certain culture of secrecy" which may be "a throwback" to the fact that the Crime and Security unit was operating surveillance long before the Act without any form of oversight.
He also submitted that there had been "an unintentional lack of candour" as Mr Johnston had not alerted the judge about the tracker or that the vehicle may have been travelling outside the jurisdiction. "Both matters may have provoked an inquiry from the judge as to whether or not he would see how the tracker worked first," he said.
He outlined that a duty of candour involves "not just what is not said but what is said that misleads".
The Special Criminal Court has viewed CCTV footage of what the State says is Mr Hutch making two separate journeys to Northern Ireland with Dowdall on February 20 and March 7, 2016, just weeks after Mr Byrne was murdered.
CCTV footage has been shown to the court of Mr Hutch getting into the front passenger seat of Dowdall's Land Cruiser at 2.23pm on March 7 at Kealy's pub of Cloghran on the Swords Road.
Further CCTV footage showed the SUV at the Maldron Hotel in Belfast at 5.35pm that evening. Another clip showed the SUV returning to Kealy's car park at 00.15 in the early hours of the morning on March 8th, where Mr Hutch gets out of the jeep and into a BMW.
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 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 Programme after agreeing to testify against former co-accused Gerard Hutch, who is charged with Mr Byrne's murder.
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 (NOT) guilty to participating in or contributing to the murder of David Byrne by providing access to motor vehicles on February 5, 2016.
The trial continues on Monday before Ms Justice Tara Burns sitting with Judge Sarah Berkeley and Judge Grainne Malone.