Mr Hutch’s defence barrister, Brendan Grehan SC, said the destruction of the records was a “real problem”
Mr Hutch’s defence barrister said “disturbingly,” the notes were destroyed after he was arrested and charged over the shooting of David Byrne at the Regency Hotel.
The tracker had been put on a Toyota Landcruiser driven by former Sinn Fein councillor Jonathan Dowdall as he allegedly took Mr Hutch north for a meeting with republicans in the aftermath of the gangland attack.
Barrister Brendan Grehan SC said the destruction of the records was a “real problem” and he did not accept a prosecution assertion that it was done in accordance with the law.
Gerard ‘The Monk’ Hutch is on trial charged with murdering David Byrne who was shot dead 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, Jonathan Dowdall and his father Patrick were jailed for facilitating the murder by booking a room at the Regency for use by the perpetrators.
Today, Mr Grehan was challenging a claim of privilege by members of the garda National Surveillance Unit in not disclosing the date a tracking device was deployed on Dowdall's jeep before his alleged journey north with Mr Hutch on February 20, 2016.
Prosecutor Fiona Murphy SC said the defence had already been furnished with evidence of the fact of the tracker being authorised, that there was physical surveillance of the jeep by the PSNI while it was in Northern Ireland and the only thing that was not stated was the date the tracker was deployed.
Mr Grehan said it was only last Friday that the prosecution had disclosed that surveillance had been carried out by the PSNI.
The defence was told there “isn’t a shred of paper” on that interaction with the gardaí.
Whether there was a tracker on the jeep had been a live issue before the trial started and the defence had put it on the record as a relevant issue while members of the NSU gave evidence.
Members who were asked if there was a tracker on the jeep had claimed privilege in not answering.
It was only last Friday that the defence was told in a letter from the prosecution and statement by the NSU superintendent involved that there was a tracker on the Land Cruiser, Mr Grehan said.
The court heard the prosecution disclosed that the tracker was authorised on February 16, 2016 and deployed some time between February and May that year. Privilege was still claimed over the exact date of deployment.
This was on the grounds that it would be a risk to the lives of members involved in surveillance and a serious threat to the security of the state to reveal the NSU’s methodology and tradecraft.
Mr Grehan said he had no interest in how the tracker was deployed, only when.
He said another issue had arisen when the defence was told yesterday for the first time that “all records for the tracker have been destroyed.”
“And more disturbing still, we were told they were destroyed during the currency of this prosecution,” he said.
This was not during the trial, he said, but since Mr Hutch had been brought before the court.
A third issue was in relation to records of any “cross border interaction” as the defence was only told on Friday that the PSNI had any involvement beyond providing CCTV evidence.
They were told there were no notes or records and Mr Grehan said this was “extraordinary.”
Ms Murphy said the destruction of records was done in accordance with legislation.
Head of the NSU, Det Supt Eugene Lynch said in evidence privilege was claimed over the surveillance devices to protect the methodology and tradecraft behind the devices.
He said Det Supt William Johnson had authorised a tracker on the Land Cruiser on February 16, 2016, only to provide information on the location of a vehicle, person or thing.
There was no recorded data around these movements.
On February 20, 2016, Det Supt Lynch received secret, sensitive intelligence that Dowdall was to travel to Northern Ireland.
He was aware the PSNI had a surveillance operation in place around this possible travel.
There was physical surveillance of the jeep in the north and there was interaction with the gardai in relation to it going in and out of Northern Ireland.
This was oral communication and there were no notes.
Det Supt Lynch agreed with Mr Grehan that the date a tracker was fitted was significant.
When an audio device goes “live” it is self-evident, but the only record of a tracker going live was kept by the gardai, Mr Grehan said.
“If that is destroyed, there is no way of establishing it,” he said.
“That’s correct,” Det Supt Lynch said.
Mr Grehan asked if there was a policy around keeping and destroying records.
Det Supt Lynch said it was covered in the Surveillance Act.
He said he did not know which device was used on the Land Cruiser.
The court then heard the tracker was on the jeep when it travelled north on February 20, 2016.
Det Supt Lynch said the gardaí knew the jeep travelled into the north because of the observation of members on the ground.
Trackers were an aid to physical surveillance, he said.
He said Det Supt William Johnson had informed him of the PSNI surveillance operation.
The two forces informed each other when the jeep entered and left each jurisdiction.
Mr Grehan confirmed to the court that having established that the tracker was in place on February 20 after being authorised on February 16, he had no interest in the intervening period.
“I think there is a real problem with the notes being destroyed, and I don’t accept that it was done in accordance with the Act,” he said.
The court has already heard there was also an audio surveillance device on Dowdall's jeep during the same journey.
The trial continues before Ms Justice Tara Burns, Judge Sarah Berkeley and Judge Grainne Malone.