Wednesday 22 November 2017

Former Sinn Fein Councillor Dowdall granted special hearing to settle 'disputed evidence'

Jonathan Dowdall (top) and Alex Hurley (below)
Jonathan Dowdall (top) and Alex Hurley (below)

Andrew Phelan

A FORMER Sinn Fein councillor who tortured a man in his garage but denies the victim was threatened that he was in the IRA has been granted a new hearing to settle the disputed evidence.

Jonathan Dowdall (40) admitted falsely imprisoning and threatening to kill the man but is now contesting some of the evidence against him - including allegations of a threat that he was in the IRA.

Jonathan Dowdall
Jonathan Dowdall

The Special Criminal Court today allowed a fresh hearing of additional evidence in “extraordinarily rare” legal proceedings which are due to begin tomorrow morning.

Ms Justice Isobel Kennedy said the court’s decision was made “in the interests of justice.”

Both Dowdall and his father Patrick (60) are awaiting sentence after Alexander Hurley, a convicted fraudster, was tied up and waterboarded in their garage.

The prosecution has alleged that Mr Hurley had arranged to buy a motorcycle from Jonathan Dowdall, who then suspected he was being scammed.

Alex Hurley was held captive by Jonathan Dowdall
Alex Hurley was held captive by Jonathan Dowdall

It was alleged Jonathan Dowdall invited Mr Hurley to dinner at his house before tying him up in the garage.

The father and son, both of Navan Road, Dublin 7 pleaded guilty to falsely imprisoning and threatening to kill Mr Hurley at their home on January 15, 2015.

The court heard Mr Hurley pleaded for his life as Jonathan Dowdall covered his face with a cloth and doused his head with water, while Patrick Dowdall threatened to cut his fingers off with pliers.

They were due to be sentenced after a full hearing earlier this month when their lawyers made last-minute objections to several aspects of the evidence against them.

Today, Judge Kennedy outlined five issues raised by the defence that are considered relevant by the three-judge court.

The first is that the defence's assertion that the victim was not invited to dinner, but the contact was “the other way around”, that this was corroborated by telephone records and the victim arrived with a receipt for the transfer of money.

The second is the defence’s assertion that the ordeal did not last three hours. The third is that the accused never stated that he was head of the IRA or UDA. The fourth is that the accused did not threaten the victim’s family and the fifth is that Mr Hurley took a copy of Mr Dowdall's insurance policy details.

Matters considered not relevant by the court were whether Gerry Adams or Mary Lou McDonald were mentioned during the victim’s imprisonment. Judge Kennedy said the court could not see how “this assertion constitutes a threat.”

Also considered not relevant were media reports and a LinkedIn profile of the victim, which the court was not aware of until it was raised by the defence.

The victim and accused could be called to give evidence in the “newton” hearing. The defence had applied for the hearing to be held before sentencing proceeds.

Michael O’Higgins SC, for Patrick Dowdall argued the accused was entitled to the hearing if the evidence now at issue is going to be considered as an aggravating factor in sentencing.

Vincent Heneghan SC, for the prosecution said there was “nothing” new to the defendants in the evidence that was presented.

Submissions by both the prosecution and the defence were made to the court this morning.

Mr O’Higgins said, on May 19, “certain matters” were highlighted to the court in which there was a conflict between the prosecution and the defence.

Other matters came to the fore post the sentence hearing and the injured party’s credibility was “a matter of some concern”, he said.

“In the written submissions and all the oral submissions my client has been at great pains to emphasise that none of the issues that he has highlighted are matters that seek to go behind that plea, either legallly or in any other way” Mr O’Higgins said.

Nevertheless, he said, where there were matters that were “potentially germaine”, the accused did not wish to receive any additional penalty in respect of a matter which “he says did not occur, or did not occur in the manner alleged.”

He said the court had to answer the question of what the accused’s rights were in the circumstances.

He said there was a comprehensive plea made and as in most cases “you expect a bit of rough with the smooth.”

What made this case out of the ordinary were the facts, which were “quite graphic” and the court had seen a video recording.

Mr O’Higgins confirmed to Judge Kennedy that the accused had had an opportunity to view the video as well as read the book of evidence.

It was only in the most exceptional circumstances that the court would pass sentence on an accused and as part of that sentence, would cite as an aggravating factor matters that, before sentence, the accused said he wanted to take issue with, with the court saying he was not allowed to do that, Mr O’Higgins argued.

Michael Bowman SC, for Patrick Dowdall, supported Mr O’Higgins’ submissions.

Mr Heneghan said the book of evidence had long since been served on the accused and they were aware of the content.

Nothing in Detective Inspector William Hanrahan’s sworn evidence was new to the defence and he was not cross examined in relation to any of the matters now at issue, Mr Heneghan said.

“The issues should have been raised before pleas of guilty were entered,” he said.

Mr Heneghan argued that the facts that were “complained” about were extraneous to the a certain degree and the core of what happened to Mr Hurley was not greatly affected.

It was never part of the prosecution’s case that either of the accused were members of the IRA. Judge Kennedy said she understood that what was at issue was whether this threat was made.

“That is a relevant, salient issue,” Mr Heneghan said.

He said if a newton hearing were to take place there would be “consequences” as the prosecution’s case was closed.

Judge Kennedy said said if the prosecution needed to call evidence it could do so. Mr Heneghan said the court could direct the accused to give evidence.

Mr O’Higgins said it was ultimately up to the court to decide, and what it came down to was if there were real conflicts that were relevant to how the sentence is to be calculated.

After considering the submissions, Judge Kennedy said the court was of the view that the defence should be permitted a “newton” hearing.

Such hearings, she said, were “extraordinarily rare.

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