Gerard Hutch’s defence team have told his Special Criminal Court murder trial that it is “of great significance” whether gardaí deployed a tracker device on a jeep belonging to former Sinn Féin councillor Jonathan Dowdall and illegally used it while the vehicle was in Northern Ireland.
Gerard 'The Monk' 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 5th, 2016.
The Special Criminal Court has already viewed CCTV footage of what the State says is Mr Hutch making two separate journeys to Northern Ireland with Jonathan Dowdall on February 20th and March 7th, 2016.
In his opening address, Sean Gillane SC, prosecuting, said it was the State's case that Mr Hutch had asked 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 Mr Hutch to meet the republicans on February 20th, 2016, he said.
The State also said in their opening speech that Dowdall drove Mr Hutch north to a second meeting in Strabane, Co Tyrone on March 7th, 2016 and the vehicle was the subject of surveillance.
On Wednesday, PSNI Detective Constable Laura McClelland told Maddie Grant BL, prosecuting, that she was tasked with obtaining CCTV from Maldron Hotel Belfast International Airport from March 7th, 2016 between 5.15pm and 6.16pm and she received the requested footage on April 1st, 2016.
CCTV footage was previously shown to the court from the afternoon of March 7th, in which a garda witness said Dowdall's jeep is seen at the Maldron Hotel in Adergrove, Belfast at 5.35pm that evening and Mr Hutch gets out of the vehicle.
The garda witness said, in the footage, Mr Hutch goes to the counter, speaks to the receptionist and receives a wallet at 5.42pm. He pays for the parking ticket and goes out to the Land Cruiser. The jeep then drives off.
Under cross-examination on Wednesday, defence counsel Brendan Grehan SC, for Mr Hutch, put it to the witness that her statement did not tell him how she was inspired to conduct the CCTV enquiries. The witness said she was tasked on March 30th by her Detective Sergeant.
Tracking
"Do I understand you were tasked at looking at various specific locations for very specific items for where a particular vehicle might be spotted?" Mr Grehan asked. The witness said she had.
Mr Grehan asked the detective if she could tell him who had requested the original CCTV footage. "I wouldn't be privy to that, the only person who tasked me was Detective Sergeant Maxwell," she said.
"So you don't know why you were asked to do this, who had asked, or why?" Mr Grehan pressed. "This was my tasking," she replied.
"The only fruit, so to speak, was what you got from the Maldron Hotel?" he asked, to which the detective agreed.
"You are not privy as to how Det Sgt Maxwell came to ask you to do this?" Mr Grehan asked. The witness said she was not.
When the witness stood down, Mr Grehan asked if he might be permitted to say a few words to the court.
Beginning his address to the three judges, the barrister said the court would have noted that the defence had been asking questions from various witnesses "some to a greater or lesser extent" trying to establish whether Dowdall's Toyota Land Cruiser was followed across the Border into Northern Ireland.
Mr Grehan has been asking Garda National Surveillance Unit (NSU) witnesses if they knew whether there were tracking devices on certain cars. Some said they did not know, while others claimed privilege in not answering.
He also asked how they knew cars were to be in certain locations.
Jurisdiction
On Tuesday, one NSU witness, Member CZ, gave evidence that he observed a Land Cruiser driven by Dowdall approaching Ardee from a northerly direction at 11.36pm on March 7th and that Mr Hutch was a passenger in the vehicle.
In cross-examination, Mr Grehan asked the witness if there was a tracker on the Land Cruiser and Member CZ said he was claiming privilege on the question.
"Were some of your colleagues following the Land Cruiser as it travelled through Northern Ireland?" Mr Grehan asked. The witness said he could not answer, adding he was not aware of any surveillance carried out in Northern Ireland.
In his submission on Wednesday, Mr Grehan said the defence had got "no headway" on whether a tracker had been used on the Land Cruiser belonging to Dowdall.
"We say it is of great significance whether a tracker was deployed by gardaí to be used outside the State. That is illegal and in breach of the law," he said.
He said the prosecution had been relying on CCTV footage, in particular from a BP service station and The Quays Shopping Centre, both in Newry, on February 20th, 2016.
"We have a very great interest in how a specific inquiry came to be made within a very short time of what happened with this particular vehicle in those particular locations. We have had very little success with witnesses to date. We don't get the person, we get the person behind the person," he continued.
He said the person being tasked by someone to collect the CCTV is being called by the State, but not "the person tasking them".
Mr Grehan said Mr Hutch's solicitor had been writing to the State since last June looking for this information "in terms of emails and notes" to reflect how it was that these enquiries came to be made. "We haven't got a lot," he added.
It may be the case, he said, there "isn't anything more" or that someone for their own reasons are not providing the information because they are maintaining a claim of privilege over whether a tracker was used or whether garda personnel followed the Toyota Land Cruiser into the North.
In summary, the barrister said he was going to keep asking the questions to witnesses, even if that means that the trial would not be "very truncated".
Listening device
Mr Grehan said it would be very important in relation to the tracker device deployed in Northern Ireland, but of even greater importance would be whether a listening bug was deployed outside the State, which would raise itself in due course in the trial.
"If it does mean that we are going to have this back and forth finding out information on the hoof, we will do it that way. It would be an awful lot simpler if we knew where we stood and if this issue was addressed square on instead of a subterfuge, where we get a tiny bit of the picture," he stressed.
Setting out a stall
Mr Grehan agreed with Ms Justice Tara Burns, presiding, that he was not making an application but merely setting out his stall or doing what he said the late Mr Justice Paul Carney referred to as "a whinge". "There is a method to our madness," he said.
The judge said these witnesses were in the book of evidence as they had collected the CCTV footage and that the defence were entitled to all the relevant information. She said Mr Hutch's solicitor had sought this information and that an enquiry had been made as far back as June.
In reply, Mr Gillane, prosecuting, said issues are now being skilfully conflated and at a point convenient to Mr Grehan. He said he was told when he played the CCTV footage that he was on proof and it would never have occurred to him "in a million years" to "call the guy behind the guy".
Mr Justice Burns said the reality is that an issue had ultimately arisen of what Mr Grehan has been canvassing in the last two days.
"We have had a lightning bolt from Mr Grehan today in relation to what might be at play. Ultimately there will be an argument in relation to this," she said.
Three NSU members gave evidence to the non-jury court before lunchtime on Wednesday. Members of the public have been excluded from the non-jury court during the NSU officers' testimony.
The officers must not be identified by order of the court and are testifying under previously assigned initials. Their names have been handed in writing into the court and are being withheld from the defence and the media.
Member CX told Mr Grehan that he had been observing Shane Rowan on March 9th but had not observed him in the North so he did not know what route he took. "I observed Rowan crossing the Border, but I didn't see him from that time on," he said.
"Was there a tracker on the Vauxhall Insignia?" Mr Grehan asked. "I claim privilege on the question," the witness replied.
AK-47s
The court heard Rowan, last of Forest Park, Killygordan, in Co Donegal, was driving a grey Vauxhall Insignia car when he was stopped outside Slane, Co Meath on March 9th, 2016.
The vehicle was searched and three assault rifles modelled on original AK-47's and ammunition were found in the boot of the car. Evidence has been given that bullet cases found at the Regency Hotel murder scene were fired by the three AK-47 assault rifles.
In July 2016, Rowan was jailed for seven and a half years for possession of assault rifles and ammunition. He was also sentenced to a concurrent sentence of four years in prison for IRA membership, backdated to March 9th, 2016.
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 Mr Hutch.
In the opening speech, Mr Gillane said the court would hear that Dowdall said Mr Hutch had said that he [Gerry Hutch] had been one of the team that shot Mr Byrne at the Regency Hotel.
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 (59), 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 Mr Byrne by providing access to motor vehicles on February 5th, 2016.
The trial continues on Thursday before Ms Justice Burns sitting with Judge Sarah Berkeley and Judge Grainne Malone.
