The former head of the National Surveillance Unit (NSU) did not consult the senior investigating officer on the Regency Hotel murder investigation or the Director of Public Prosecutions (DPP) when he destroyed records from a tracker device deployed on ex-Sinn Féin councillor Jonathan Dowdall's jeep, the Special Criminal Court has heard.
Former Det Insp Ciaran Hoey said he did not believe the records would be used in the prosecution when he ordered their destruction months before the Regency Hotel murder trial began last month. He also said that tracker evidence had never been previously used in the history of the Surveillance Act.
Mr Hutch’s defence lawyer Brendan Grehan SC said he could not understand how Mr Hoey could “in good faith” have made a decision to have potentially relevant evidence to a criminal trial destroyed.
Mr Grehan told the court on Tuesday that gardaí destroyed records from a tracking device that had been placed on Dowdall's Toyota Land Cruiser jeep when he is alleged to have driven murder accused Gerard Hutch north for a meeting with republicans in the aftermath of the shooting.
Counsel said "disturbingly", the notes were destroyed by gardaí after his client was arrested and charged with the murder of Mr Byrne and that the destruction of the tracker records was authorised on February 7th this year. He said the destruction of these records was a "real problem" and he did not accept the State's assertion that it was done in accordance with the Criminal Justice Surveillance Act 2009.
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.
Retired Det Supt William Johnston, the former head of the garda National Surveillance Unit (NSU), gave evidence on Tuesday of how authorisation was given to deploy a tracker and logging device on Dowdall’s Toyota Land Cruiser before he allegedly drove Mr Hutch north on February 20th, 2016.
Mr Johnston said he received an application for approval to deploy a tracking and logging device on the jeep from Det Supt Ciaran Hoey on February 16th, 2016, for a two-month period until April 19th, 2016, which he then approved.
Surveillance
Det Supt Eugene Lynch, the current head of the Garda NSU, has given evidence that a tracking device was on Dowdall's jeep when it travelled north on February 20th. He said the PSNI were conducting surveillance on the vehicle in the North and that gardaí were doing the same south of the Border.
Under cross-examination on Wednesday, Mr Hoey, who was a Detective Inspector with the NSU in 2016 but subsequently succeeded Det Supt Johnston as head, agreed with defence counsel Mr Grehan that a tracking and logging device provides information as to where a certain vehicle is at a particular time and that the information can be used by gardaí to know where to make their observations from.
Mr Hoey said the intention of the tracker was to be as near real-time as possible and that they were only concerned with tracking within the jurisdiction. He agreed that the device does not know where the jurisdiction of a country ends and another begins.
Asked by counsel if he was the person who decided to destroy the records of the tracking and logging devices, Mr Hoey said he was the person who signed the authorisation for the destruction of the documents. Under the policy, he said, if one believes the documents are no longer required then it has to be authorised and "signed off" by the Assistant Commissioner of Crime and Security. Mr Hoey said he did not have access to any of these documents anymore.
When Mr Grehan asked the witness how it came about that the records were destroyed, Mr Hoey said he had taken over as head of the NSU in November 2019 and the following year there was a High Court review which he sat in on. This resulted in a full review of all data held by the NSU under the Surveillance Act with a view to improving storage and security of data. Data older than three years that was not required for prosecution or appeal was destroyed.
When asked by Mr Grehan if this was a type of "cleaning house", Mr Hoey replied that in the current digital age "data at some stage has to be destroyed" and that the act makes the circumstances clear when this is to happen.
Fireproof safe
Mr Hoey said the documentation had been stored in a fireproof safe and he ordered the destruction of the original approval documents for the tracker and the data that emanated from the tracking device. Asked what the purpose for their destruction was, the witness said it was in order to comply with the Criminal Justice Surveillance Act 2009.
Counsel put it to Mr Hoey that whatever destruction order he gave to administrative staff in the NSU had not been complied with because copies of this application were in front of him and before the court. Mr Hoey said the original documents that were held in the NSU were destroyed and that he did not know the provenance of the copies before the court.
Asked to read out the "pro-forma document" in front of him, which was signed by himself on February 7th, Mr Hoey said it confirmed that there was "no lawful or legitimate reason" to retain the records of the tracking device on the Toyota Land Cruiser as three years had passed and the records were not required for any relevant prosecution or appeal.
He agreed there was separately a policy document for the retention and destruction of documents and that it must firstly be authorised by the Assistant Commissioner as per section 9 of the Surveillance Act. He said the Assistant Commission had gone through the documentation on March 23rd this year and that he had seen her sign off on it.
"So who am I going to get who takes responsibility for the destruction of the records in this case?" Mr Grehan asked, to which Mr Hoey replied: "Me."
Mr Hoey said as far as he was aware, data from a tracking device had never been used in evidence to prove the location of a vehicle, person or thing at a particular time. He said the data recorded from the tracker had been in the NSU for over six years and was not used. "In relation to the movements of the vehicle when Gerard Hutch was on board, we had witnesses from the NSU who were able to give evidence on oath as to the movements of the vehicle," he said. He went on to say that the best evidence was the NSU members' sightings coupled with the CCTV footage and that was what was to be used in this trial.
Mr Grehan put it to the witness that if the evidence was not going to be used by the prosecution then it could be destroyed. "Yes, if it is beyond a three-year period and not required by the prosecution," he replied.
"Does that mean that you knew full well on February 7th this year when you ordered the destruction of these records, you were fully aware that Gerard Hutch, Jonathan Dowdall and Patrick Dowdall were all facing a trial before this court, which had been fixed six months previously?" asked Mr Grehan. "Yes, I wasn't involved in the investigation per se but I was aware that it wasn't included in the evidence proposed for this case," he replied.
Consultation
Asked who he had consulted before ordering the destruction of the records, Mr Hoey said the administration staff who were under him in the NSU.
"How about a senior investigating officer, did you consult him?" asked Mr Grehan. Mr Hoey said he had not.
"Did you consult anyone in the DPP's office?" pressed Mr Grehan. Again the witness said he had not.
Mr Grehan said he was at a "total loss" and couldn't understand this. "I had the firm belief that they [the records] couldn't be used in the prosecution and we had evidence from NSU witnesses to prove the movements of the vehicle, under surveillance on the dates in question when Mr Hutch was on board and they were in a position to give that evidence," said Mr Hoey.
Mr Grehan put it to the witness that these NSU members appeared not to be in a position to give evidence about the movements of the vehicle when it crossed out of the Irish jurisdiction but that a tracker would have been able to do that. "It may be," said Mr Hoey.
Counsel insisted that the tracker would have been able to do this and that it would be relying on real time "back to the NSU". Mr Hoey said he did not know.
"Well nobody will know now because you ordered the destruction of records in the currency of a trial," Mr Grehan said, raising his voice. The witness repeated that the tracker records did not form part of any evidence in this trial.
Mr Hoey said he had not informed the Assistant Commissioner of Crime and Security that the current trial was proceeding. He repeated that the NSU had the records for six years, they weren't part of the book of evidence and no one had requested the documents.
The lawyer put it to the witness that he could not understand "how in good faith" he had made a decision to destroy documentation that could be relevant to a criminal trial. He said he had done his best to explain.
Mr Grehan put it to Mr Hoey that a court decides if privilege exists and asked him if the Special Criminal Court could now decide anything in relation to these records. "No because they are destroyed," he replied.
'Better evidence'
Asked if it had occurred to him that anyone other than the prosecution and the investigating team might have had an interest in the tracker records, he said it had but there was "better evidence" available. He also said that before this privilege had been claimed on the "mere existence of a tracker" and that this was the first time that this had changed.
Mr Hoey agreed with Mr Grehan that it was not brought to the attention of the Assistant Commissioner that "when referring to the vehicle it referred to" Jonathan Dowdall, Patrick Dowdall and Gerard Hutch.
"So the Assistant Commissioner might not have been alerted at all to the fact that this was pertinent to a trial before this court?" asked counsel. Mr Hoey said she wasn't as he did not think it was "pertinent", "if I thought it was going to be vital for the prosecution then we wouldn't be here".
Mr Grehan asked: "This vehicle was going to feature all over the place, where 27 members of the NSU were giving evidence and where the prosecution intended to lead the audio of the vehicle; you didn't think that the Assistant Commissioner might have a different view?" Mr Hoey said he did not.
Mr Grehan put it to the witness that not only could he have kept the data, any reasonable person could conclude that he should have kept the data. "I don't accept that, I was obliged under the Act to destroy the data beyond three years. It was six-and-a-half years and no one had come looking for it and that is why I made the decision," he said.
In summary, Mr Grehan suggested to the witness that the only way prosecution counsel can "discharge" their duty was if records were kept and that it had not been in this case because of him. "I've given my reasons," he concluded.
Mr Grehan will cross-examine the Assistant Commissioner for Crime and Security on Monday.
Jonathan Dowdall
The prosecution case is that Mr Hutch had asked Jonathan 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 Gerard Hutch to meet the republicans on February 20th, 2016, prosecution counsel told the court.
The Special Criminal Court has already viewed CCTV footage of what the State says is Gerard Hutch making two separate journeys to Northern Ireland with Jonathan Dowdall on February 20th and March 7th, 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 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 (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 David Byrne by providing access to motor vehicles on February 5th, 2016.
The trial continues on Thursday before Ms Justice Tara Burns sitting with Judge Sarah Berkeley and Judge Grainne Malone.
