The dropping of the murder charge against Jonathan Dowdall was an "incredibly powerful incentive" for the ex-Sinn Féin councillor to give a statement against his former co-accused Gerard Hutch, leaving it impossible for Mr Hutch to obtain a fair trial if Dowdall is permitted to give evidence, defence lawyers have told the Regency Hotel trial.
Brendan Grehan SC, for Mr Hutch, submitted today that Dowdall had the Director of Public Prosecutions "over a barrel".
His client's former co-accused, he said, had also engaged in a "very careful choreography" to ensure that only after his murder charge was dropped did he commit to making a statement in writing.
The lawyer added: "That incredibly powerful incentive for Dowdall to give a statement against his co-accused Mr Hutch had tainted the process and as a result it is not possible for Mr Hutch to obtain a trial in due course of law if Dowdall is permitted to give evidence in this case".
'Quid pro quo'
The defence counsel said it was "clear" that there was a "quid pro quo" in Dowdall's murder charge being dropped by the State and Dowdall providing a witness statement in the form that could be used in court and his giving of evidence at the trial.
Mr Grehan argued that there was a "total absence" in the case of "any kind of clarity" as to how the DPP's "change of heart" came about in relation to dropping Dowdall's murder charge. He said the DPP wouldn't consider a nolle prosequi on September 2 but within two weeks "all had changed" and that the office accepted a plea from Dowdall to facilitating the murder. The court had no insight into the circumstances as to how this came about, he submitted.
The barrister said justice should be transparent and needs to be administered in public and for this "change of heart" to come about there had to be "some window into what happened". "Otherwise one is left in a position of surmising that the quacking waddling duck is a duck; that it is a quid pro quo," he said.
In summary, counsel said that Dowdall had the DPP "over a barrel" in terms of the intelligence and information provided by him.
Admissibility of evidence
The defence are challenging the admissibility of evidence to be given by Dowdall, who was a former co-accused of Mr Hutch but who has now turned State's witness.
Dowdall intends to give evidence in the coming days implicating Mr Hutch in the murder at the Regency Hotel. Dowdall has already been sentenced by the non-jury court for the lesser offence of facilitating the murder.
The evidence is being heard as part of a voir dire - or ‘trial within a trial’ - to help the court's three judges determine its admissibility.
Mr Grehan said on Tuesday he would be making submissions that Dowdall agreed to give a statement in circumstances where he had the "most powerful possible incentive" to implicate Mr Hutch if he was going to succeed in getting the murder charge dropped.
The lawyer's second complaint is the lack of video recording of the encounters that took place between garda and Dowdall, which put the defence at a disadvantage in terms of cross-examining the evolution of the accounts.
Under cross-examination on Tuesday, Mr Grehan suggested to Detective Superintendent Joseph McLoughlin of Ballymun Garda Station, who took over the Regency investigation from August 1st this year, that it was "irrational, illogical and inconceivable" that a decision not to prosecute Dowdall for the Regency Hotel murder wasn't entered as a "quid pro quo" for the former Sinn Féin Councillor giving a statement to gardai.
However, the detective told Mr Grehan that the decision to accept a plea from Dowdall to the lesser offence of facilitating the murder was made by the DPP in isolation to any potential statement that Dowdall might have made.
At the opening of the trial, Sean Gillane SC 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.
Mr Hutch (59), last of The Paddocks, Clontarf, Dublin 3, denies the murder of David Byrne (33) during a boxing weigh-in at the hotel on February 5th, 2016.
At the outset of his submissions today, Mr Grehan said it is an inescapable conclusion that the decision not to prosecute Dowdall on the murder charge "effectively" went "hand in glove" with him giving a statement to gardai and that it could not be dismissed as a pure coincidence. "I say that despite the stubborn insistence by Det Supt McLoughlin yesterday that the two events were unconnected in any way," he added.
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.
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. Dowdall is expected to give evidence against his former co-accused Mr Hutch in the coming days.
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.
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.
The trial continues on Wednesday before Ms Justice Tara Burns sitting with Judge Sarah Berkeley and Judge Grainne Malone.