A Garda Assistant Commissioner has said she would “absolutely not” have signed off on the destruction of records from a tracker device deployed on former Sinn Féin councillor Jonathan Dowdall’s SUV if she had the “slightest inkling” that the material was required and instead would have ordered its retention, the Special Criminal Court has heard.
Asst Comm Orla McPartlin told the non-jury court today that she has already started the process of “tightening up” the policy document which covers the destruction of records.
Earlier, the court heard that gardaí had recovered records from a tracker device deployed on former Sinn Féin councillor Jonathan Dowdall’s SUV that were believed to have been destroyed, the Regency Hotel murder trial has heard.
Sean Gillane SC, prosecuting, told the Special Criminal Court this morning the Garda National Cyber Crime Bureau had conducted a “fairly extensive” operation since last week, in which a securely stored desktop computer that had been listed for destruction had been examined.
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He added: “In the course of the examination of that device, it appears that a working copy of the material in question was located and is available for examination”.
In reply, Brendan Grehan SC, defending Gerard ‘The Monk’ Hutch, said it appeared that “what was lost is now found”.
Mr Grehan told the court last Tuesday that gardaí destroyed records from a tracking device that had been placed on Dowdall’s Toyota Land Cruiser SUV when he is alleged to have driven murder accused Gerard Hutch north for a meeting with republicans in the aftermath of the shooting.
Counsel said “disturbingly” the notes were destroyed by gardaí after his client was arrested and charged with the murder of Mr Byrne and that the destruction of the tracker records was authorised on February 7th this year. He said the destruction of these records was a “real problem” and he did not accept the State’s assertion that it was done in accordance with the Criminal Justice Surveillance Act 2009.
Last week, the former head of the National Surveillance Unit (NSU), who signed the authorisation for the destruction of the tracker records on February 7th this year, said he did not consult the senior investigating officer of the Regency Hotel murder investigation or the DPP when he destroyed records from a tracker device deployed on Dowdall’s Toyota Land Cruiser. ds.
Retired det insp Ciaran Hoey testified last Wednesday that he carried out a review of all the data information held by the NSU in early 2020 to ensure they were in compliance with the Surveillance Act of 2009. Data records older than three years that were not required for prosecution or appeal were destroyed to improve storage and the security of data, he said.
Mr Hoey, who was detective inspector with the NSU in 2016, said he did not believe the records would be used in the prosecution when he ordered their destruction just months before the Regency Hotel murder trial began last month.
Mr Hutch’s defence lawyer Mr Grehan said he could not understand how Mr Hoey, who is now retired, could “in good faith” have made a decision to have potentially relevant evidence to a criminal trial destroyed.
Mr Hoey said that the Assistant Commissioner of Crime and Security - Assistant Commissioner McPartlin - had “signed off” on the destruction order on March 23rd last. On that day a total of 87 orders were signed off on with information provided on a spreadsheet relating to relevant dates and details of Dowdall’s SUV being tracked.
Mr Hoey said he did not make Asst Comm McPartlin aware that the current trial was proceeding, nor that the vehicle was related to Jonathan Dowdall or Gerard Hutch. Asked by Mr Grehan if Asst Comm McPartlin should have been alerted to the fact that the records may be “pertinent” to the trial, Mr Hoey said she wasn’t as he did not think it was “pertinent”. He repeated that the NSU had the records for six years, they weren’t part of the book of evidence and no one had requested the documents.
Asst Comm McPartlin testified on Monday that she attended the office of Mr Hoey on March 23rd this year to authorise the destruction of the records in accordance with the Surveillance Act. She said Det Insp Hoey had presented her with a spreadsheet which showed the totality of items for 2016 and that he had shown her nothing that required to be retained.
Asked by Mr Gillane if she had any awareness that the data was concerned with this prosecution, Asst Comm McPartlin said she had no awareness that the vehicle or the data were connected to it.
In cross-examination, the Asst Comm said she “absolutely” would not have ordered the destruction of the records if she had the “slightest inkling” that material relating to this trial was required and would have ordered for it to be retained.
She said she thought the 87 files on the spreadsheet were marked for destruction and that she had randomly sampled three files.
Mr Grehan put it to the Asst Comm that with the benefit of hindsight the policy document which covers the destruction of records might need to be tightened up a bit, she agreed, telling him: “I’ve already started that process”. She also said that she had directly asked Det Insp Hoey if there was anything relevant that should be brought to her attention and that he had indicated to her that there wasn’t.
The court also heard today that tracker records confirm that Dowdall’s Land Cruiser was in Northern Ireland for almost eight hours on March 7, 2016 when audio relied on by prosecution was recorded. Last week, Mr Grehan submitted that the defence’s “core argument” would be that gardaí were aware that Dowdall’s Toyota Land Cruiser was outside the jurisdiction for eight of the ten hours of those recordings from March 7, 2016 and that the evidence harvested from that “illicit fruit” should be excluded from the trial. The non-jury court will rule on the extraterritoriality issue raised about the audio recordings once they have finished listening to the ten hours.
Mr Hutch (59), last of The Paddocks, Clontarf, Dublin 3, denies the murder of Kinahan Cartel member David Byrne (33) during a boxing weigh-in at the Regency Hotel on February 5th, 2016.
The prosecution case is that Mr Hutch had asked Jonathan Dowdall to arrange a meeting with provisional republicans to mediate or resolve the Hutch-Kinahan feud due to the threats against the accused’s family and friends.
Jonathan Dowdall (44) - with an address at Navan Road, Cabra, Dublin 7 – was due to stand trial for Mr Byrne’s murder alongside Gerard Hutch but pleaded guilty in advance of the trial to a lesser charge of facilitating the Hutch gang by making a hotel room available ahead of the murder.
Mr Byrne, from Crumlin, was shot dead at the hotel in Whitehall, Dublin 9, after five men stormed the building during the attack. Mr Hutch’s two co-accused – Paul Murphy (59), of Cherry Avenue, Swords, Co Dublin, and Jason Bonney (50), of Drumnigh Wood, Portmarnock, Dublin 13, have pleaded not guilty to participating in or contributing to the murder of David Byrne by providing access to motor vehicles on February 5th, 2016.
The trial continues before Ms Justice Tara Burns sitting with Judge Sarah Berkeley and Judge Grainne Malone.