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Gerry Hutch denies the murder of Kinahan Cartel member David Byrne. File photo (2008). Credit: RTÉ.
Special Criminal Court

Gerry Hutch trial: Conversations taped by gardaí in Northern Ireland were obtained illegally, but can be included, court rules

The defence argued that using the tapes should not have been allowed as part of the recording took place beyond the borders of the state.

JUDGES AT THE Special Criminal Court have ruled that ten hours of conversations between murder accused Gerard ‘The Monk’ Hutch and ex Sinn Fein Councillor Jonathan Dowdall that were captured by a garda bugging device are admissible in the trial, despite Dowdall’s bugged jeep having been outside of the State during the majority of the recordings.

The three judges were today delivering their ruling on a defence application to exclude either all or most of the conversations between Hutch and Dowdall that were captured by a garda bugging device outside the State, weeks after the shooting of Kinahan Cartel member David Byrne at the Regency Hotel.

The prosecution is seeking to use in evidence the 10 hour recording of conversations from that journey. The audio was played for three days to the non-jury court in “a voir dire” or trial within a trial before the court was to rule on the admissibility of the evidence.

Following lengthy legal arguments by counsel for both sides in the trial, presiding judge Ms Justice Tara Burns today delivered the judgement of the three-judge court. The judge said that whilst the court found that the National Surveillance officers “had no power” to gather evidence in Northern Ireland nonetheless the conversations ought to be admitted in the “interests of justice”. “The court will admit that portion of the conversations from Northern Ireland into evidence in the trial proper,” she added.

The judge rejected the defence’s challenge to the authorisation of the audio bugging device by the District Court judge but accepted their second argument that the operation of the surveillance device was illegal. The court ruled today that gardai had no power to investigate or gather evidence in another state and that the gardai cannot operate independently in another jurisdiction.

Ms Justice Burns said while the evidence was gathered unlawfully and the breach is of significance, the court was satisfied that the relevant officers of the NSU acted in good faith and did not know it was illegal at the time. She added that there was no breach to Hutch’s constitutional right to privacy.

The second part of the defence’s challenge centred on what they submitted was the “illegal use” of the audio device outside the jurisdiction. It was the defence’s contention that any material gathered by gardai from the bugging device in Dowdall’s jeep from when it crossed the border at 3.10pm at the Carrickdale Hotel in Dundalk Co Louth until 10.50pm that night when it re-entered the jurisdiction at Aughnacloy in Co Monaghan was outside the remit of the Criminal Justice (Surveillance) Act 2009.

The conversations between Hutch and Dowdall took place when they were allegedly travelling north to a meeting in Strabane in Co Tyrone on March 7, 2016 in Dowdall’s Toyota Land Cruiser jeep, that had been bugged by garda detectives.

The prosecution’s case is that 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.

The decision was revealed in a judgment today in the trial of Hutch (59), last of The Paddocks, Clontarf, Dublin 3, who denies the murder of Byrne (33) during a boxing weigh-in at the Regency Hotel on February 5, 2016.

The Special Criminal Court has viewed CCTV footage of what the State says is Hutch making two separate journeys to Northern Ireland with Jonathan Dowdall on February 20 and March 7, 2016, just weeks after Byrne was murdered.

CCTV footage has been shown to the court of Hutch getting into the front passenger seat of Dowdall’s Land Cruiser at 2.23pm on March 7 at Kealy’s pub of Cloghran on the Swords Road. Further CCTV footage showed the jeep at the Maldron Hotel in Belfast at 5.35pm that evening. Another clip showed the jeep returning to Kealy’s car park at 00.15 in the early hours of the morning on March 8, where Hutch gets out of the jeep and into a BMW.

Jonathan Dowdall (44) – a married father of four with an address at Navan Road, Cabra, Dublin 7 – was due to stand trial for Byrne’s murder alongside 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 Program after agreeing to testify against former co-accused Gerard Hutch, who is charged with Byrne’s murder.

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.

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.