Secret recordings from listening devices placed on cars by gardaí investigating the Kinahan cartel should be excluded from a conspiracy to murder trial because there’s a “missing link” in the evidence, a barrister has told a court.
Defence Counsel made the submission on Thursday in the trial of Liam Brannigan (37), from Bride Street, Dublin 8, who is charged with conspiring to murder Gary Hanley at a location within the State between September 15th and November 6th, 2017.
The accused has pleaded not guilty.
The court has already heard evidence from the head of the National Surveillance Unit, Detective Superintendent William Johnson, about the deployment of listening devices on several cars in August, September and October 2017, as part of an ongoing Garda investigation into members of the Kinahan Organised Crime Gang and their associates.
Det Supt Johnson previously told the court how he gave approval for a Seat car to be bugged on the night of August 31st, 2017, for 12 hours, and a white Volkswagen caddy van on the night of September 13th, 2017, for just under 14 hours.
He said he gave these approvals under Section 7 of the Criminal Justice (Surveillance) Act 2009, after he received phone calls from two different officers on the two respective evenings.
However, Giollaíosa Ó Lideadha SC, for Mr Brannigan, told the court on Thursday that it has heard no notes were taken of these phone calls by either Det Ins Johnson or the officers who phoned him.
He also said the court has not heard any direct evidence or hearsay evidence about the state of mind of the officers making the request for the cars to be bugged.
He said legislation requires that “a garda making the application must form a bona fide belief that is fully recognised in jurisprudence in this jurisdiction as being a necessary requirement in order for a constitutional invasion of privacy to take place”.
However, he said: “What we have in this is a missing link. We have no evidence from the relevant witnesses on that point.”
Bugged cars
Det Ins Johnson also gave evidence about going to the District Court on September 1st, 2017, and September 14th, 2017, respectively, and obtaining permission for the cars to be bugged for another few weeks.
The court heard that the devices placed on the cars on August 31st, 2017 and September 13th, 2017, were never replaced and instead remained in place.
However, Mr Ó Lideadha told the court on Thursday that even though Det Ins Johnson went to the court and sought fresh authorisation for secret listening devices to be placed on the cars, under Section 4 of the Criminal Justice (Surveillance) Act 2009, the devices were never changed.
Mr Ó Lideadha argued that Det Ins Johnson should have made an application for continued use of the devices under a different section of the legislation.
He argued: “The court is being asked to ignore the legislation just like the gardaí did and it is wrong.”
Mr Ó Lideadha also told the court that when Det Ins Johnson gave evidence he was asked if he considered the legislation when he carried out his duties and he answered “yes”.
“So they must have known what they were doing,” Mr Ó Lideadha said.
The barrister also told the court that certain documents are required for a Section 4 authorisation including a summary of the surveillance carried out to date and a written record of the approval.
However, he said there has been no evidence that such documents were included.
He added: “This cannot be dismissed. This is not a technicality, we’re dealing with a huge power of a garda.”
Approval
Mr Ó Lideadha noted that Sean Gillane SC, for the State, reminded the court Det Ins Johnson told the District Court that there was proper Section 7 approval for the devices to be placed on the car when he made his Section 4 application.
However, Mr Ó Lideadha argued: “There is a failure, almost a shyness, to look at the words of the legislation and the problem with the words in the legislation is that they are explicit.”
Last week, a member of the National Surveillance Unit, referred to as BL, gave evidence of giving USB keys containing audio files from the vehicles bugged by gardaí to a member of the Garda National Drugs and Organised Crime Bureau.
BL told Mr Justice Paul Coffey, presiding with Judge Sinead Ní Chulacháin and Judge James Faughnan, that he took a “true copy” of the audio recording files from the Garda system, on which they were placed, onto the USB keys before giving them to Det Garda Gary Dunne.
The court heard BL did not personally download the raw data from the bugging devices onto the Garda system’s hard drive.
Under cross-examination, BL also told the court that when he said particular recordings related to particular vehicles, this was an assertion made by him on the basis of material on the hard drive [Garda system], and other documents and paperwork put together by other gardaí.
Mr Ó Lideadha told the court on Thursday that it’s “clear” from BL’s evidence that he could not independently state which audio recording matched which recording device and which vehicle.
“That’s what’s crucial,” he argued.
The court has already heard that gardaí collected 3,500 hours of CCTV footage from businesses across Dublin.
Mr Gillane opened the trial two weeks ago saying that the prosecution will use CCTV and audio recordings to prove Mr Brannigan was “fully knowing of the plot” to kill Mr Hanley.
Mr Justice Coffey said the court will endeavour to give a ruling on the application for the CCTV footage and audio recordings to be excluded on Tuesday at 11am.