The dropping of the murder charge against Jonathan Dowdall was an “incredibly powerful incentive” for the ex-Sinn Fein councillor to give a statement against his former co-accused Gerard Hutch, leaving it impossible for Mr Hutch to obtain a fair trial if Dowdall is permitted to give evidence, defence lawyers have told the Regency Hotel trial.
Brendan Grehan SC, for Mr Hutch, submitted on Wednesday that Dowdall had the Director of Public Prosecutions “over a barrel”.
Counsel also submitted that the issue as to whether or not Dowdall will be accepted into the Witness Protection Programme should be resolved before he gives evidence, so that he is not “under an apprehension or misapprehension that it’s based on performance”.
The defence counsel said it was “clear” there there was a “quid pro quo” in Dowdall’s murder charge being dropped by the State and Dowdall providing a witness statement in the form that could be used in court and his giving of evidence at the trial.
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Mr Grehan argued that there was a “total absence” in the case of “any kind of clarity” or explanation as to how the DPP’s “change of heart” came about in relation to dropping Dowdall’s murder charge.
Counsel said Dowdall had the DPP “over a barrel” in terms of the intelligence and information provided by him.
The court has heard that there was “a set of conditions” upon which Dowdall was prepared to speak to gardaí and this included that he would not be making any cautioned statement that could be used in any way against him.
The defence are challenging the admissibility of evidence to be given by Dowdall, who was a former co-accused of Mr Hutch but who has now turned State’s witness.
The evidence is being heard as part of a voir dire - or ‘trial within a trial’ - to help the court’s three judges determine its admissibility.
Johnathan Dowdall - with an address at Navan Road, Cabra, Dublin 7 -intends to give evidence in the coming days implicating Mr Hutch in the murder at the Regency Hotel. Dowdall has already been sentenced by the non-jury court for the lesser offence of facilitating the murder.
Mr Hutch (59), last of The Paddocks, Clontarf, Dublin 3, denies the murder of Mr Byrne (33) during a boxing weigh-in at the hotel on February 5th, 2016.
Mr Hutch’s two co-accused - Paul Murphy (61), 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.
Under cross-examination on Tuesday, Mr Grehan suggested to Detective Superintendent Joseph McLoughlin of Ballymun Garda Station, who took over the Regency investigation from August 1st this year, that it was “irrational, illogical and inconceivable” that a decision not to prosecute Dowdall for the Regency Hotel murder wasn’t entered as a “quid pro quo” for the former Sinn Féin Councillor giving a statement to gardaí.
However, the detective told Mr Grehan that the decision to accept a plea from Dowdall to the lesser offence of facilitating the murder was made by the DPP in isolation to any potential statement that Dowdall might have made.
At the opening of the trial, Sean Gillane SC said the State’s case was that Mr Hutch had contacted Dowdall and arranged to meet him days after the shooting. Mr Gillane said the evidence would be that Mr Hutch told Dowdall that he was “one of the team” that murdered Mr Byrne at the Regency Hotel in 2016.
At the outset of his submissions today, Mr Grehan said it is an inescapable conclusion that the decision not to prosecute Dowdall on the murder charge “effectively” went “hand in glove” with him giving a statement to gardaí and that it could not be dismissed as a pure coincidence.
Counsel said the court had heard there are two pillars of Dowdall’s proposed evidence, namely the handing over of the hotel key cards for the room used by Kevin Murray in the Regency Hotel and “an alleged conversation” with Mr Hutch that took place in a park a number of days after the shooting. It was in this conversation that Dowdall says the accused confessed his direct involvement in the murder to him, he said.
Counsel said Detective Sergeant Patrick O’Toole had confirmed under cross-examination “in terms of both pillars” that there wasn’t a scintilla of evidence to corroborate this.
Mr Grehan said his second complaint concerns the lack of video recording of the encounters that took place between garda and Dowdall, which he said put the defence at a disadvantage in terms of cross-examining the evolution of the accounts.
He said it was incumbent on gardaí to have electronically recorded their meetings with Dowdall as opposed to mere note keeping and from the “get-go” in this case there was a possibility of where it was all going. Counsel said it was a deliberate decision by An Garda Síochána not to make any proper electronic recordings of encounters.
In summary, 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.
Ms Justice Tara Burns directed Mr Gillane to find out if Dowdall had been accepted into the Witness Protection Programme 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 everything done in relation to Dowdall had been above board.
The three-judge court will deliver a ruling at 2pm tomorrow.