The Special Criminal Court has ruled a secret recording of murder accused Gerry ‘The Monk’ Hutch's conversations can be used in evidence against him.
The career criminal is standing trial for the murder of David Byrne at the Regency Hotel, Dublin, in 2016.
The evidence includes a portion of taped conversations recorded in in Northern Ireland, which were obtained illegally – but will be permitted in the trial.
The court today found that garda surveillance tapes, made while he was driven north by ex-Sinn Féin councillor Jonathan Dowdall weeks after the shooting, are admissible in Mr Hutch’s trial.
Ms Justice Tara Burns said in a judgment today that eight of the audio's 10 hours were from unlawful garda surveillance over the border in Northern Ireland.
However, she ruled that the entire 10 hours could be admitted under law and at the court's discretion "in the interest of justice".
She said the garda surveillance unit had acted in good faith when using the bug and did not know it was illegal at the time.
The tapes, which were played last week, were described as being at the “core” of the prosecution’s case against Mr Hutch.
His defence had objected to their admissibility, arguing that their authorisation was invalid and eight of the audio's 10 hours were from "illegal" garda surveillance over the border in Northern Ireland
Mr Hutch is charged with murdering Mr Byrne, who was shot dead at the Regency on February 5, 2016.
Two other men, Jason Bonney and Paul Murphy, are accused of helping the criminal organisation responsible by providing cars used to drive the assailants away after the shooting.
Mr Byrne (33), a Kinahan gang member, was killed when three assault rifle-wielding masked raiders, disguised as Emergency Response Unit gardaí, stormed the Regency in north Dublin along with a gunman dressed as a woman in a blonde wig, and another armed man wearing a flat cap.
The attack, which happened during a weigh-in for a boxing event, fuelled a bloody feud between the Kinahan and Hutch crime gangs.
Mr Hutch (59), of The Paddocks, Clontarf, Dublin, Mr Murphy (61) of Cherry Avenue, Swords and Mr Bonney (51) of Drumnigh Wood, Portmarnock, deny the charges against them.
Dowdall had also been accused of murder, but before the trial started he instead admitted facilitating Mr Byrne’s killing by booking a hotel room for the perpetrators.
The court heard that when he drove Mr Hutch north on March 7, 2016, tracking and audio devices had been deployed on Dowdall’s Toyota Land Cruiser by the Garda National Surveillance Unit (NSU).
Brendan Grehan SC, for Mr Hutch, and prosecutor Sean Gillane SC set out their arguments earlier this week.
Mr Grehan argued that the authorisation for the audio device by a District Court judge was “unlawfully issued” due to a “lack of candour” in the information he was provided by the NSU.
He said the judge should have been told a location tracker had already been authorised for the vehicle, and that there was a possibility it was going to enter Northern Ireland.
He also said there was no proper record kept of the District Court application.
On the issue of covert recordings in the North, Mr Grehan said the Criminal Justice (Surveillance) Act 2009 was clear that an authorisation for a surveillance device can only apply within the state.
He also argued it did not adequately respect his client’s right to privacy under the Constitution and the European Convention on Human Rights.
Mr Gillane countered that the NSU had been fully candid with the district judge in putting the grounds for the application “in black and white” before him.
This included suspicions that Dowdall travelled north previously to meet the Continuity IRA, and it was always in the state’s case that his Toyota Land Cruiser “goes north”, he said.
The NSU’s application document was the record of what the judge was told, he said.
The audio device was to record conversations when there was no other way of doing so and the tracker was separate, he said.
Mr Gillane said he was not making any extra-territorial claim in relation to garda surveillance. Instead, he argued that the bug was an “inanimate object” and recordings it made “by happenstance” when it crossed the border into Northern Ireland were admissible in evidence here as long as the device was lawfully deployed, retrieved and downloaded in the Republic.
He said the defence’s claim that the law did not permit the use of such devices across borders could not be correct as it would mean the Oireachtas was “blind, deaf and oblivious” to the existence of the northern border and it would make the Act useless in investigating serious crime such as terrorism or drug trafficking.
Mr Hutch’s expectation of privacy was “attenuated” given that he was in someone else’s vehicle discussing murder, he said.
In reply, Mr Grehan said the prosecution was treating the bug as if it had a mind of its own and if the prosecution was right, it could go anywhere in the world and the gardaí could use in evidence what it happened to record.
The deployment of the device and recovery of its data were done in this jurisdiction but this was "incidental to the main purpose of the Act which is surveillance”, which was done outside the borders of the state, Mr Grehan said.
“Capturing people’s voices in a secretive manner is the surveillance, everything else is ancillary,” he said.
On his client’s privacy rights, he argued the prosecution could not take an approach that the end justified the means and seek to retrospectively justify an intrusion on those rights.
Today, Ms Justice Burns said Mr Grehan’s challenge was twofold. First, it was argued that the authorisation for the device that was granted by a District Court judge following an application by then-Detective Superintendent William Johnson of the NSU was invalid.
The second part of the challenge was in relation to the legality of the portion of the conversation that was recorded in Northern Ireland.
On the issue of swearing the application before the District Court judge, she said this was in the correct format and reflected the appropriate oath. The lack of a record was of no consequence to this, she said.
The court found there had been no breach of the "candour" obligation either. Ms Justice Burns said Det Supt Johnson had provided the district judge with detailed information based on the facts at the time and anything else would have been “speculation”.
Ms Justice Burns said the officer had not been obliged to inform the district judge that a tracker device had been authorised for the Land Cruiser 36 hours earlier, saying they were “completely separate devices with completely different functions”.
Disclosing this would have had no effect on the District Court judge’s decision, she said. Det Supt Johnson had no intelligence at the time that the vehicle would travel to Northern Ireland.
The court was satisfied that in light of the “detailed information” Det Supt Johnson provided, the district judge was capable of concluding he had reasonable grounds.
The authorisation he issued was justified and valid, she said.
On the extra-territorial argument, Ms Justice Burns said the court did not accept the prosecution’s assertion that the scope of surveillance devices could extend to seagoing vessels and airplanes leaving the jurisdiction.
The court was of the view that if the legislature intended the law to be extra-territorial, it would have explicitly said this and this could not be "read into the Act". The authority of the District Court in this matter was only effective in this state, so only the portions of the audio that were recorded in this jurisdiction had authorisation lawfully granted.
Mr Grehan had argued that a later portion of the audio, when the Land Cruiser crossed back over the border into the Republic, was also “tainted”.
The judge said the court did not agree with this, as the District Court authorisation had permitted this.
She then turned to the question of whether the “illegally obtained evidence” could still be admitted.
The judge referred to laws where failures to comply did not render evidence automatically inadmissible. There was a discretion depending on factors including the interest of justice, the court heard.
In this case, she said, the gathering of evidence was carried out under a legislative framework which did not permit it, so the breach was “significant”.
However, she said there was no male fides, or bad faith on the part of the gardaí who had proceeded on the basis that it was lawful.
The finding of unlawfulness was only on foot of this ruling and was a new determination in law, she said.
On whether the accused’s constitutional right to privacy was breached, she said this right did not extend to planning crime.
With respect to the conversations, she said, the two were “clearly discussing criminal behaviour” and loosely planning a "combative strategy" in relation to the Hutch family and the breach of the right to privacy “does not arise.”
The judge said she wanted to be clear that the court “has not determined that any of the conversation reflects the charge that Mr Hutch faces” and had not considered its relevance to that charge, but added that “in a general way, criminality is being discussed”.
The probative value of the conversation was yet to be established, she said, and the court would determine that in due course.
She said the three judges had regard to the fact that evidence of the conversation can be given by “the other party to the conversation” who was due to give evidence.
The court was of the view that the breach of the act was “of significance” but was “nonetheless satisfied that the relevant officers of the NSU acted in good faith and that the illegality was unknown”.
“The court is satisfied that the conversation ought to be admitted in the interest of justice,” she said.
Later, Lewis Mooney BL, representing Mediahuis, applied to the court to release transcripts of the audio recording, saying there had been difficulties in keeping a full record of the words that were shown on the screen in court, he said.
Both Mr Gillane and Mr Grehan objected. Mr Gillane said there were concerns before the audio evidence that the media would be able to report accurately. The material was displayed in open court on screens and "our position is that was the solution", he said.
There had been no complaints since about the audio being misreported. The transcripts were not an exhibit but a "work product" of the gardaí and an aid to following the audio, he said.
Mr Grehan said he had suggested the displaying of the transcript at the outset of the evidence, as the defence had an interest in the matter being accurately reported.
He understood that had worked "perfectly well" and there had been no complaints about any media reports.
"As far as we are concerned, that ship has sailed," he said. "We don't perceive what is being sought is necessary."
Mr Grehan said parts of the tape may have to be put to Dowdall when he gives evidence and it was still very much a live trial.
He said public or commercial interests should take "second place".
Mr Mooney said his application was not a complaint about how the court dealt with the audio evidence, but his clients wished to be able to report accurately. The documents would be of "great assistance" in reporting of further references to the audio in the trial.
The audio had already been heard in public and there could not be any prejudice to anyone, he said.
Ms Justice Burns said the court would make a determination on this on Monday.