LAST UPDATE | 8 Dec 2022
THE SPECIAL CRIMINAL Court has ruled that evidence from former Sinn Féin councillor Jonathan Dowdall can be heard at the trial of Gerard Hutch.
In a separate matter, Ms Justice Tara Burns also said today 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.
Hutch’s defence have asked that this issue be resolved before Dowdall gives his evidence.
The ruling was made by the three judge panel this afternoon which means that Dowdall will now be called by the State.
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 5 February 2016.
Hutch’s counsel Brendan Grehan SC had objected to Dowdall giving evidence on grounds that Dowdall was prompted to give evidence against his former co-accused because they offered him “an incredibly powerful incentive” that the murder charge would be dropped.
Sean Gillane for the State in his arguments to the court said that there was no link between the two events.
Ms Justice Tara Burns said that the judges had determined that Dowdall’s giving a statement of evidence to investigating gardaí was not given by him in return for the dropping of the murder charge.
The three judges were today delivering their ruling on a defence application challenging the admissibility of the Dowdall evidence.
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.
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 Hutch to obtain a fair trial if Dowdall was permitted to give evidence.
The second complaint of defence counsel Brendan Grehan SC, for Hutch, was that no electronic recording took place of the meetings between gardai 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.
Witness protection programme
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.
Ruling on the evidence today, however, Ms Justice Tara Burns, presiding at the three-judge court, said Dowdall’s decision to make a statement to gardai 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 gardai, 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.
On Wednesday, Grehan submitted that the issue as to whether or not Dowdall would be accepted into the Witness Protection Programme should be resolved before he gave evidence, so that he was not “under an apprehension or misapprehension that it’s based on performance”.
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 yesterday directed Gillane to find out if Dowdall had been accepted into the WPP and he could tell the court today.
Today, 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 tomorrow so he could inform Grehan “what he can or can’t say” in relation to the matter. Gillane asked the court to budget for hearing Dowdall’s evidence on Monday.
Criticism
After reading the letter, Ms Justice Burns addressed 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 repeated that she was “astonished” that the prosecution find themselves in the position that they find themselves in.
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.
Ms Justice Burns told Gillane: “The court has a job to be done, so if all that can be conveyed back to the appropriate authorities and they might find themselves in a position to give you back that answer more quickly”.
“Everyone is talking about Jonathan Dowdall getting into the witness box and I’m astonished you find yourself in the position that you find yourself in,” she continued.
The judge told Gillane that she was sure he would have an answer by tomorrow 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.
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 David Byrne at the Regency Hotel in 2016.
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 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.
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.
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 (61), of Cherry Avenue, Swords, Co Dublin and Jason Bonney (50), of Drumnigh Wood, Portmarnock, Dublin 13 have pleaded not (NOT) guilty to participating in or contributing to the murder of David Byrne by providing access to motor vehicles on February 5, 2016.
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