Mr Hutch’s defence lawyer said he could not understand how retired garda Ciaran Hoey could “in good faith” have had potentially relevant evidence destroyed
Ciaran Hoey, formerly of the National Surveillance Unit said he did not believe the records would be used in the prosecution when he ordered their destruction months before the start of the trial.
Mr Hutch’s defence lawyer said he could not understand how Mr Hoey could “in good faith” have had potentially relevant evidence destroyed.
Mr Hutch is on trial charged with murdering David Byrne who was shot dead in a gangland attack at the Regency on February 5, 2016.
Two co-accused 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 gunmen, disguised as ERU gardai, stormed the Regency in north Dublin along with an armed man dressed as a woman in a blonde wig, and another in a flat cap.
The attack on a boxing weigh-in event happened as a bloody feud raged between the Kinahan and Hutch 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.
Before the trial started, former Sinn Fein councillor Jonathan Dowdall and his father Patrick were jailed for facilitating the murder by booking a room at the Regency for use by the perpetrators.
The court has heard in the weeks after the attack, gardai believed Dowdall and Mr Hutch had been meeting “to organise criminal activity.”
Undercover detectives planted covert tracker, logging and audio devices on Dowdall’s jeep before he allegedly drove Mr Hutch north for a meeting with republicans on February 20, 2016.
Yesterday, the court heard the tracker and logger’s records had been destroyed by the National Surveillance Unit after Mr Hutch was arrested and charged.
Today, Ciaran Hoey, a detective inspector with the NSU in 2016, gave evidence of applying for the use of a tracking device on Dowdall’s jeep.
Mr Hoey, who is now retired, said on February 16 that year he applied to his superior, Det Supt William Johnson for the use of a tracking device on the jeep.
This was on the basis of a suspicion where he had reasonable grounds to believe from intelligence that Jonathan Dowdall was a person of interest in the murder of David Byrne and was using his transport to transport him and his associates.
He believed surveillance was necessary as gardai were involved in an operation and surveillance could provide information in relation to that arrestable offence, he said.
It could also be necessary to prevent an offence.
He was satisfied this was one of the least intrusive methods available at the time to gather information and was proportionate and for a reasonable duration, of two months.
Dert Supt Johnson granted the application.
In cross-examination, Mr Hoey told Brendan Grehan SC, for Mr Hutch, that surveillance devices would have been used by the gardai before regulatory legislation was introduced in 2009.
He said the devices assisted in observation and surveillance.
They could track the movements of a vehicle in real time or as close to real time as possible, although there could be slight delays, he said.
This depended on circumstances he could not disclose.
Mr Grehan asked if he was the person who decided to destroy the records of the tracking and logging devices in the case.
“I am one of the persons who signed the authorisation for the destruction of the documents,” he said.
The other was the Assistant Commissioner of garda Crime and Security who signed off on it.
This was done where documents are no longer required for a prosecution.
Mr Grehan said the only document that had been disclosed was Mr Hoey’s authorisation.
Mr Hoey said he took over as head of the NSU in 2019 and the following year there was a High Court review which he sat in on.
This triggered a full review of all data held by the NSU under the Surveillance Act.
This was with a view to improving storage and security of data and to ensure they were in compliance with the Act.
Data older than three years that was not required for prosecution or appeal was not to be retained, he said.
“We are mandated by the Act - the data at some stage has to be destroyed,” he said.
The documentation was stored in a fireproof safe and he ordered the destruction of the original approval documents and the data that emanated from the tracking device.
He asked NSU administrative staff to destroy the documentation.
Mr Grehan said his order in relation to the approval documents could not have been complied with because copies were kept and were before the court.
Mr Hoey said the original documents that were held in the NSU were destroyed and he did not know if copies had been held elsewhere.
The data from the devices themselves was only held in the NSU.
He did not know the provenance of the copies before the court.
Explaining the review of data, he said the NSU considered how long it had been stored and whether it was ever used in a prosecution or likely to be.
In his authorisation to destroy the jeep’s tracker data, he stated that he saw no lawful reason to retain it as its use had passed and it was not required for any prosecution or appeal.
This was on February 7 this year. The form he had filled out allowed for data to be retained or destroyed and he “decided which to do.”
An appointment was made for the Assistant Commissioner to come in and sign off on it and that was on March 23 this year.
Mr Grehan asked who was going to take responsibility for the destruction of the records.
“Me,” he replied.
Mr Hoey said as far as he was aware, data from a tracking device had never been used in evidence to prove the location of a vehicle, person or thing at a particular time.
In this case, the data had been on file for six years without being used.
In relation to the movements of the vehicle while Mr Hutch was allegedly on board, Mr Hoey said he deemed it unnecessary to retain that data as there were witnesses from the NSU who could give evidence on oath of its movements.
To try to prove the information from the tracker would, “you would have to divulge a level of tradecraft and methodology that would render that unusable,” Mr Hoey said.
The best evidence was sightings by members and CCTV, and this was what was to be used in the case.
Mr Grehan asked if he was fully aware when he ordered the destruction of the data that Mr Hutch and Dowdall were facing trial.
“Yes, judges,” he said, adding that he was not involved in the investigation but he was aware that the data was not included in the proposed evidence.
Mr Grehan asked who he consulted before he decided if the material was relevant to the prosecution.
He said he consulted administrative staff of the NSU who were under him.
He did not consult a senior investigating officer or anybody in the DPP’s office.
“I was of the firm belief that it wouldn’t be used in the prosecution and wouldn’t be required,” he said, repeating that there would be evidence from NSU members who had the jeep under surveillance.
They would not be able to give evidence of the movements of the jeep outside the jurisdiction, Mr Grehan said.
Mr Hoey could not say if the tracker data would have been able to indicate that.
Mr Grehan asked Mr Hoey how he could have taken it on himself to order the destruction of the data.
He replied that the information was never sought. It was not part of the book of evidence that he was aware of and nobody requested it.
He did not know if the DPP was aware of the existence of the records.
Mr Grehan said the witness took it upon himself with junior administrative staff to destroy evidence in a trial that was due to proceed.
Mr Hoey said again that the documents were over three years old and not required for prosecution in the six years that it was held by the NSU.
Mr Grehan put it to him that Det Supt William Johnson had said if records were to be destroyed, he would consult with senior investigating officers.
Mr Hoey said that was not done in this case, again saying he felt it was in compliance with the act and the records were not required for a prosecution.
He said if an investigator came to the NSU looking for assistance, “we would check back with them.”
Asked if he had known the original investigation team was aware of the existence of the tracker, he said he “may have assumed it.”
Mr Grehan put it to him that he still went ahead and signed the destruction order without consulting them, knowing a trial date had been set
“I cannot understand how in good faith you made a decision to destroy documents that could be relevant,” Mr Grehan said.
The non-jury trial continues before Ms Justice Tara Burns, Judge Sarah Berkeley and Judge Grainne Malone.