Judges at the Special Criminal Court trial of Gerard 'The Monk' Hutch, who is accused of the murder of Kinahan Cartel member David Byrne at the Regency Hotel, have ruled that the evidence to be given by former co-accused and now State's witness Jonathan Dowdall is admissible in the trial, despite defence objections.
In a separate matter, Ms Justice Tara Burns also said on Thursday she was "astonished" that the prosecution had still not been informed as to whether Dowdall, who was expected to enter the witness box either today or tomorrow, has been accepted into the Witness Protection Programme. Mr Hutch's defence have asked that this issue be resolved before Dowdall gives his evidence.
The three judges were delivering their ruling on a defence application challenging the admissibility of evidence to be given by ex-Sinn Féin councillor Dowdall, who was a former co-accused of Mr Hutch.
Dowdall intends to give evidence in the coming days implicating Mr Hutch in the murder at the Regency Hotel. Dowdall has already been sentenced to four years by the non-jury court for the lesser offence of facilitating the murder and is being assessed for the Witness Protection Programme when he gets out of prison.
Defence objection
The defence had objected to the evidence of the former Dublin city councillor on two grounds; firstly that the dropping of the murder charge against Dowdall was an "incredibly powerful incentive" for him to give a statement against the defendant, leaving it impossible for Mr Hutch to obtain a fair trial if Dowdall was permitted to give evidence.
The second complaint of defence counsel Brendan Grehan SC, for Mr Hutch, was that no electronic recording took place of the meetings between gardaí and the father-of-four, which put the defence at a disadvantage in terms of cross-examining the evolution of his accounts.
Replying to the defence's submissions, Sean Gillane SC, prosecuting, said the court had the right "to hear every man's evidence" and one of the fundamental bedrock to the right of all parties is legal professional privilege. Mr Gillane said everything done in relation to Dowdall had been above board and above the waterline.
Mr Grehan had relied on the Supreme Court decision in DPP v Gilligan, which found that while the evidence of a witness in a protection programme is admissible, it should be excluded if the circumstances in which it came about fall below the fundamental standard of fairness.
Murder charge
Ruling on the evidence on Thursday, however, Ms Justice Tara Burns, presiding at the three-judge court, said Dowdall's decision to make a statement to gardaí was not given by him in return for the murder charge being dropped and that it is a matter for the DPP as to whether a plea authorised on a certain set of facts to a lesser charge is acceptable.
The judge went on to say that the DPP would not enter a nolle prosequi on Dowdall's murder charge when there was no other "offer on the table" and that the situation only changed when Dowdall's solicitor communicated with the DPP offering to plead guilty to a lesser charge. A statement had not been provided by Dowdall at that stage and therefore no fundamental unfairness arises from the sequence of events, she said.
Dealing with the defence's second complaint concerning the lack of electronic recording of the encounters that took place between Dowdall and gardaí, Ms Justice Burns said the court disagreed with this assertion as a lot of documentation had been generated from the meetings, notes were taken and there were emails thereafter. "While this issue is not without difficulty, it is not of a magnitude that results in unfairness such that the witness should not be called," she added.
The non-jury court, she said, will proceed to hear the evidence from Dowdall.
On Wednesday, Mr Grehan submitted that the issue as to whether or not Dowdall would be accepted into the Witness Protection Programme (WPP) should be resolved before he gave evidence, so that he was not "under an apprehension or misapprehension that it's based on performance".
Mr Gillane said the prosecution had corresponded with the defence to indicate that Dowdall's assessment regarding his suitability for the programme had commenced. "No determination of finding has been made yet," he said.
Ms Justice Burns on Wednesday directed Mr Gillane to find out if Dowdall had been accepted into the WPP and he could tell the court on Thursday.
Today, Mr Gillane handed a letter into the court and said further steps had to be taken and he was limited in what he could indicate to the court. He asked the court to list the matter for on Friday so he could inform Mr Grehan "what he can or can't say" in relation to the matter. Mr Gillane asked the court to budget for hearing Dowdall's evidence on Monday.
Trial ongoing
After reading the letter, Ms Justice Burns addressed Mr Gillane saying: "There is a trial ongoing, we have worked extremely hard to ensure we are in a position to finish the trial in a timely manner. I'm surprised you find yourself in the position you find yourself but I'm more surprised that no date has been indicated when matters can be progressed".
She added: "It is not often the court gets to give out to external agencies, they need to understand we are holding a trial at the moment and I'm not one bit happy that the prosecution finds itself in this position, it's not good enough".
The judge said she thought Dowdall would get into the witness box on Monday and in fact they were ready to take him at 2pm today.
She repeated she was "astonished" that the prosecution find themselves in the position that they find themselves in.
The judge told Mr Gillane that she was sure he would have an answer by Friday and that perhaps the court might have some evidence from the appropriate person on Friday "as it was not good enough" that the court's time was not being used appropriately.
The trial has been adjourned until Friday for further information on Dowdall's witness protection status.
Regency attack
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.
Mr Hutch (59), last of The Paddocks, Clontarf, Dublin 3, denies the murder of Mr Byrne (33) during a boxing weigh-in at the hotel on February 5th, 2016.
Mr Grehan has outlined that there are two pillars of Dowdall's proposed evidence, namely the handing over of the hotel key cards for the room used by Kevin Murray 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, outlined the barrister.
The defence had argued that effectively Dowdall had the prosecution "over a barrel" and that the former electrician 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.
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 notorious 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.
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 5th, 2016.
