Ex-SF cllr Dowdall had played a ‘very powerful hand’ in ensuring that the murder charge would be dropped against him in return for his evidence, Hutch’s defence team claimed
Brendan Grehan SC said Dowdall had put the DPP “over a barrel” in a “very careful strategy” to ensure that he only made a statement after being told his own murder charge was being dropped.
This “powerful incentive” tainted the statement and evidence Dowdall is to give for the prosecution, he told the Special Criminal Court.
Dowdall had originally also been charged with murdering David Byrne at the Regency Hotel but before the trial started, he instead pleaded guilty to a lesser offence and turned state’s witness against Mr Hutch.
Prosecutor Sean Gillane SC countered that everything done in relation to Dowdall was "above board" and the court had a right "to hear every man's evidence."
The three-judge, non-jury court was hearing arguments on the admissibility of evidence due to be given by Dowdall and will make a ruling tomorrow afternoon.
Mr Hutch (59), of The Paddocks, Clontarf denies murdering David Byrne (33), a Kinahan gang member who was shot dead at the Regency Hotel, Dublin on February 5, 2016.
Mr Byrne was killed after five armed raiders, three wielding assault rifles and disguised as ERU gardai, stormed the hotel during a boxing weigh-in event, in an attack that fuelled the bloody Kinahan-Hutch feud.
Also on trial are Paul Murphy (61) of Cherry Avenue, Swords and Jason Bonney (51) of Drumnigh Wood, Portmarnock, Dublin who deny helping the perpetrators by providing cars.
Jonathan Dowdall is serving a four-year sentence for facilitating the murder by helping his father Patrick Dowdall to book a room at the Regency for a criminal organisation the night before the attack.
Last Friday, the court’s three judges ruled admissible tapes of conversations between Mr Hutch and Dowdall as they drove north a month after the Regency shooting.
Ms Justice Tara Burns said although some eight hours of the evidence was illegally recorded by gardai in Northern Ireland, it could all be used in evidence in the interest of justice.
Mr Grehan is objecting to the evidence of Dowdall, who claimed to gardai that Mr Hutch confessed his “direct involvement in the murder” to him when the pair allegedly met in a park days after the Regency attack.
The second main allegation Dowdall has made is that after his father Patrick Dowdall booked a room at the Regency the night before the murder, it was Gerard Hutch he handed the keys over to.
Mr Grehan cross-examined gardai for two days on how Dowdall came to make his statement on September 23 this year after coming forward with new information about the Regency.
“It’s clear there was a quid pro quo in relation to the murder charge being dropped by the prosecution in this case and Mr Dowdall providing a witness statement in a form that it could be used in court, and giving evidence,” Mr Grehan said.
There was an “inescapable conclusion” from the chronology the court had heard about that the two events went “hand in glove” and it could not be dismissed as “pure coincidence.”
This, he said, was despite the “stubborn insistence” of Detective Superintendent Joseph McLoughlin that the two events were “in fact unconnected in any way.”
Det Sgt Patrick O’Toole had said he knew nothing about the dropping of the charge when he took Dowdall’s statement as he did not want to “taint” what he said was a separate process.
Mr Grehan argued the DPP’s decision was based on Dowdall being used as a witness.
Dowdall had played a “very powerful hand” in ensuring that the murder charge would be dropped against him in return for his evidence, the barrister continued.
“Very careful choreography was in engaged in by him to ensure that it was only after the murder charge was dropped that he committed to a statement in writing and on video that could be used in this case,” he said.
“That incredibly powerful incentive for him to give a statement against his co-accused Mr Hutch tainted the process and as a result it’s not possible for him to obtain a trial in due course of law if Mr Dowdall is permitted to give evidence,” Mr Grehan said.
There was a right to fair procedures, he said.
The DPP had initially indicated that the murder charge would not be dropped and there was a “total lack of clarity” as to how the “change of heart” came about, two weeks later, he said.
Mr Grehan accepted that there was privilege over communications but said the fact that privilege existed did not mean it could not be waived.
Justice had to be administered in public and there needed to be “transparency”, he said.
Dowdall had put the DPP in a position that should give rise to “very great concern and very great scrutiny” before the witness would be permitted to give evidence, he said.
He said the new allegations against Mr Hutch were “non-investigated”, and checking was negative in terms of looking to see if there was CCTV.
It transpired that there “wasn’t a scintilla” of corroborating evidence.
“Mr Dowdall had the DPP over a barrel in terms of the intelligence and information that was provided by him,” he said.
Dowdall had been engaged in a “very careful strategy” since he first approached gardai through his solicitor in November last year where promises of information were “dangled” in front of the gardai.
This was heavily hedged in pre-conditions, particularly that he would not initially be cautioned so nothing he told them could be used against him.
The gardai did not agree to pre-conditions, but Dowdall was not cautioned at initial meetings.
“Effectively, Mr Dowdall is seeking immunity in respect of what he’s providing,” Mr Grehan said.
He argued that Dowdall’s initial meetings with gardai before he made his statement should have been recorded.
He said instead, notes were taken by a garda and Dowdall had provided a typed document that his wife had read out and he only initialled.
He argued Dowdall had not taken ownership of this information and without a recording, this rendered it “virtually useless” for cross-examination.
Inconsistency of account was a “critical matter” to put to a witness and “that is lost” when a decision was made not to make a recording, he said.
Mr Grehan said Dowdall's "coming forward" was not a sincere and honest effort but a "hard-nosed bargaining position" adopted by him with the assistance of professional lawyers.
He said Dowdall had offered to give evidence that would incriminate Mr Hutch and that he offered to have it by way of evidence in the trial but only if his murder charge was dropped. It was impossible to come to any other conclusion other than the two matters were interrelated, conditional on one another and connected, he said.
Referring to whether Dowdall had been accepted into the Witness Protection Programme (WPP), the lawyer said the last the defence heard was that he was in the process of being assessed. As it is a non-statutory scheme which was never put on a statutory footing this meant the defence did not have any visibility as to what the witness
was getting or promised, he continued.
Mr Gillane said the prosecution had corresponded with the defence to indicate that Dowdall's assessment regarding his suitability for the programme had commenced. "No determination of finding has been made yet," he said.
Mr Grehan said this was an issue and that it should be resolved in advance of the witness giving evidence so that he was not under an apprehension or misapprehension that "it's based on performance so to speak".
Ms Justice Tara Burns directed Mr Gillane to find out if Dowdall had been accepted into the WPP and he could tell the court tomorrow. She
said there did seem to be a possibility that if this "remains in the air" then Dowall's evidence would not be heard before Christmas.
In reply to the defence's submissions, Mr Gillane said the court has the right "to hear every man's evidence" and one of the fundamental bedrocks to the right of all parties is legal professional privilege.
He said everything done in relation to Dowdall had been above board and above the waterline.
The trial continues before Ms Justice Tara Burns, Judge Sarah Berkeley and Judge Grainne Malone.