Gerard Hutch’s defence team have told his Special Criminal Court murder trial that there is nothing in the Criminal Justice (Surveillance) Act 2009 to suggest it has scope beyond the borders of the State and that the Oireachtas would have legislated for this with "irresistible clearness" if this had been the case.
Senior counsel Brendan Grehan, for Gerard 'The Monk' Hutch, said on Tuesday that the State had "danced around" the jurisdiction issue concerning conversations between Regency Hotel murder accused Mr Hutch and former Sinn Féin councillor Jonathan Dowdall that were captured by a garda bugging device. Counsel said that the prosecution was asking the court to put "a strange" and "very wrong" interpretation on the Act.
The three-judge court will rule on Friday morning whether the contents of the recorded conversations are admissible in evidence having regard to the extraterritoriality issue.
Core of case
Sean Gillane SC, for the Director of Public Prosecutions, submitted on Monday that the conversations captured by the two men on the garda bugging device, which the State says is "part of the core" of their case, should be admissible in evidence and that any issue about where the device travelled to is "a cloud" which the defence has placed over the case.
Prosecution counsel has agreed with the presiding judge it was the State's case that, once a surveillance device is placed and retrieved lawfully on a car within this jurisdiction, "then it does not matter a damn where the vehicle was in the meantime".
The trial has heard that the vehicle crossed the border at the Carrickdale Hotel in Dundalk Co Louth at 3.12pm on March 7th, crossing back into the Republic at 10.50pm that night at Aughnacloy in Co Monaghan.
Last Friday, Mr Grehan set out his stall telling the non-jury court that "on its face" there had been an illegal operation of the Act 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". He stated that an audio surveillance device being deployed on a vehicle gathering intelligence whilst operating outside of the jurisdiction was in "contravention" of the terms of the Act.
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 5th, 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 argued that Dowdall's Toyota Land Cruiser 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.
'Inanimate object'
Replying to the State's submissions, Mr Grehan said the description of the bug as "an inanimate object" reminds him of a very famous book "The Knife Went In" by UK doctor Theodore Dalrymple. The doctor, he said, had interviewed people who had killed others with knives and none of them seemed capable of saying "they did anything at all; that the knife was in their hand and went in as if the knife was an inanimate object".
The barrister said that by Mr Gillane calling the bugging device "an inanimate object" it seemed to suggest that it was "almost like flying, buzzing around", that it was totally incapable of being controlled and that it might go anywhere. "If it happens to pick up loads of things out there then great," he added.
Mr Gillane argued on Monday that an audio surveillance device is "simply an inanimate movable item" which had been "applied, sought, deployed, initiated and retrieved within the State" and that the data was recovered within the State. He stated: "No question of extraterritoriality in truth arises''.
Mr Grehan said the prosecution had suggested that it must have been in the minds of the Oireachtas that the bug deployed under the Act would travel North. "If Mr Gillane is right we are not talking about the bug just travelling North, according to him it can travel anywhere," he continued.
Mr Grehan submitted that the Oireachtas may exercise extraterritorial jurisdiction or "past its borders" when enacting legislation but if this is the case then it must expressly state this in the Act.
'The poison tree'
In summary, Mr Grehan said the gathering of conversations between both men in the North was an unlawful operation of the Act in terms of the bug being operational in Northern Ireland and that the fruits of it being downloaded "were the fruits from the poison tree".
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 20th and March 7th, 2016, just weeks after Mr Byrne was murdered.
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 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 Friday before Ms Justice Tara Burns sitting with Judge Sarah Berkeley and Judge Grainne Malone.
