A senior garda has denied that he "soft-pedalled evidence" on the "limited facts" that former Sinn Féin councillor Jonathan Dowdall pleaded guilty to at his sentence hearing for facilitating the Regency Hotel murder.
Detective Sergeant Patrick O'Toole also told the Special Criminal Court today that no discussion was held between Dowdall and gardaí "about getting the murder charge dropped".
The trial heard today that Dowdall told gardaí that he felt under threat from "the Hutchs and that organisation" and that he also felt in fear of "the Kinahans" as he was charged with the murder of cartel member David Byrne. Det Sgt O'Toole said that, in meetings with gardaí earlier this year, Dowdall expressed the belief that he and his father "had been used".
Defence lawyer Brendan Grehan SC is challenging the admissibility of evidence to be given by Dowdall, who was a former co-accused of Gerard 'The Monk' Hutch but has turned State's witness. Dowdall has already been sentenced by the non-jury court for the lesser offence of facilitating the murder.
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.
In his opening address, prosecution counsel Sean Gillane SC said the evidence will be that Mr Hutch told Dowdall that he was "one of the team" that murdered Mr Byrne at the Regency Hotel in 2016.
Mr Hutch, aged 59, last of The Paddocks, Clontarf, Dublin 3, denies the murder of Mr Byrne, aged 33, during a boxing weigh-in at the hotel on 5 February, 2016.
Under cross-examination today, retired setective superintendent Paul Scott formerly of Ballymun Garda Station and who was the senior investigating officer in the Regency investigation, told Mr Grehan that he received a phone call on 22 November, 2021 from solicitor Jenny McGeever. He said she indicated her client Jonathan Dowdall wished to speak to An Garda Síochána in relation to the Regency investigation.
Dowdall was charged on 27 April 2021 with the murder of Mr Byrne at the Regency Hotel.
Mr Scott said he met Ms McGeever in a consultation room in the Criminal Courts of Justice Building on 29 November 2021, where she read a pre-prepared document and indicated certain matters. He agreed that it was standard practice for a solicitor to give a document such as this to gardaí but that this had not occurred.
Mr Scott agreed with counsel that in effect there was "a set of conditions" upon which Dowdall was prepared to speak to gardaí and offer information.
Mr Scott said he reported the matters to his own superiors and appraised the officers in the DPP. The witness said he subsequently wrote to Ms McGeever on 16 December 2021 outlining to her what his opinion of these preconditions were as it was a "very unusual set of circumstances" and that he subsequently received a reply.
Mr Scott agreed with Mr Grehan it was clear in the conditions set down on 16 December that Dowdall was in possession of information in relation to the Regency attack and it was clear in the first instance that he would not be making any cautioned statement that could be used in any way against him.
Dowdall also wanted agreement that the statement could not be used in evidence against him or in any related proceedings and that the DPP would not disclose any statement made to any third party unless he was giving evidence as a prosecution witness, he said.
Ms McGeever told Mr Scott in an email on 22 January 2022 that Dowdall had concerns for himself and his family and that it was not feasible for gardaí to take a statement from him within the confines of the prison as it was not safe.
Mr Scott agreed with counsel that Dowdall was prepared to provide information to gardaí but on the conditions he set out. He also agreed that Dowdall perceived there was "a danger to him in so doing" and that the statement should be taken as soon as practical.
Mr Scott said in early May he appointed Detective Sergeant Patrick O'Toole, who had sufficient knowledge of the investigation, to meet with Dowdall. The witness said he wrote to Ms McGeever on 10 February 2022 and told her that gardaí were not in a position to agree to conditions.
"I said we would meet up with him to see what he had to say," he added.
Asked what happened with the lack of contact between gardaí and Dowdall's solicitor between the months of February and May, Mr Scott said it wasn't something that was driven by him and it had to be driven by Dowdall.
Mr Grehan suggested that this had been an incredibly important development in the investigation and it appeared to be treated with a total lack of urgency by gardaí. The witness said he would not agree.
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Asked about his role in Dowdall achieving bail, Mr Scott said he had a role in not objecting to the bail application as there were no grounds to object; Dowdall had no history of any warrants or any breach of his bail conditions.
Mr Grehan said it was "extraordinary" that he had not objected to bail, especially with what was perceived to be "a gangland murder in a feud that was still creating a body count".
Mr Scott said once Dowdall provided to abide by his bail conditions then he had no objections.
By 20 July, Mr Scott said Dowdall and his wife had met three times with Det Sgt O'Toole and provided information but at no stage had he said he was looking for anything in particular.
Asked if it struck him that Dowdall was looking for something, Mr Scott said that would certainly have been in the back of his mind but Dowdall had never stated it. Mr Scott retired on 31 July this year and did not have any dealings with the investigation after this.
The next witness, Det Sgt O'Toole, told Mr Gillane that he had a number of roles in relation to the overall investigation. He said that he was "closely connected" to events in the incident room and had been delegated the task of dealing with Dowdall in this context.
Under cross-examination by Mr Grehan, Det Sgt O'Toole said he had no notes from his dealings with Dowdall but that his colleague had prepared "accurate" notes in his presence.
Det Sgt O'Toole said he became involved in dealing with developments in December 2021, when Det Supt Scott informed him that Dowdall wished to speak to gardaí, which was done through his solicitor.
Asked if he realised that Dowdall had set down through his solicitor a number of pre-conditions, Det Sgt O'Toole said he surmised that it must have been to do with the Regency investigation.
The witness said that Det Supt Scott had informed him that Dowdall's solicitor had made contact and he was asked to contact Dowdall.
Det Sgt O'Toole said Dowdall got bail in April 2022 but that he had no understanding of what the extent of their first meeting would be. He said this made his task of meeting Dowdall easier once he had got bail.
The witness said his task was to meet with Dowdall and see what he had to say. Det Sgt O'Toole said he made contact with Dowdall's wife Patricia on the evening of 17 May, 2020 and that she informed him on the phone that she and her husband wanted to speak about the shooting of Mr Byrne at the Regency Hotel, that she was in fear for the safety of her family and that Jonathan would be shot dead over this.
Asked how he decided where to meet Dowdall and his wife, Det Sgt O'Toole said he had discussed this with Patricia and that he had picked Dublin Airport Garda Station as he had a meeting there the next day.
He said he chose this location as it was secure and that he was aware that the sergeant working there that night was "very trustworthy".
He said Patricia Dowdall sounded extremely scared and upset at what they were facing on the phone.
Det Sgt O'Toole said the interview with Dowdall took place in the custody suite and that it had a back door which led out to a darkened area so it was suitable for going in and out.
Asked if he had made a conscious decision not to record the meeting, the witness said he was trying to provide comfortable surroundings as it was "very important for the taking of a statement".
The interview room did not have recording facilities, he said.
Det Sgt O'Toole said he was not aware of any pre-conditions made by Dowdall at this stage saying: "I was tasked with speaking with him to see what he had to say".
He said he did not caution the couple as they were not suspects at the time.
"This was not an interrogation but a conversation of what Jonathan Dowdall knew and what information he might impart," he added.
He said if incriminating evidence against Dowdall had come up, he would have cautioned him.
Mr Grehan put it to the detective that Dowdall was charged with the murder of Mr Byrne at that stage. Det Sgt O'Toole said Dowdall was entitled to the presumption of innocence until proven guilty.
He said he was not aware of any pre-conditions at the time so had not cautioned Dowdall.
The detective said Patricia Dowdall had taken the role of "support for her husband" at the meeting on 18 May.
Asked by counsel if she had contributed apart from that, Det Sgt O'Toole said "not at that meeting" and that Dowdall "did all the talking".
"They were both extremely nervous and in fear; initially there was a difficulty trying to calm them," he said, adding that the meeting lasted three hours.
Mr Grehan asked the witness if anything was said by Dowdall of what would happen to him or his family.
"He just raised concerns for himself and his family and that he was under threat from the Hutchs and that organisation and in fear from the Kinahans as he was charged with murder."
Mr Grehan said to the witness "let's be careful" and Det Sgt O'Toole then said that Dowdall told him that "he felt under threat from the Hutchs and Kinahans".
Asked if Dowdall had mentioned the "Provos", the witness replied "not at that stage".
"So he was under threat from everyone?" asked Mr Grehan. The witness agreed.
He said Dowdall and his wife left by the back door after the meeting.
Det Supt O'Toole said he suggested to Dowdall that a "good course of action" was to "go away and write down everything" he was aware of in relation to the Regency attack and the murder of Mr Byrne.
The witness said his understanding was that Dowdall would contact him when they were ready and they would meet again to discuss what he had written down. He told him to take his time.
Mr Grehan put it to the witness that it seemed he did not make contact with Dowdall until his solicitor started writing "irate letters" to him.
"I didn't know what amount of time that would take," he replied.
The barrister put it to Det Sgt O'Toole that "a very curious approach" was taken by gardaí having seen the "magnitude of such information".
"These were sensitive matters, I did not want to be seen to push in any direction. This was of his own free will he came to us and his own free will to come back to us," said the detective.
This afternoon, Det Sgt O’Toole said Dowdall had wanted to "tell the truth" and it was Dowdall’s belief that he and his father had been used.
Mr Grehan asked if Dowdall had not been concerned that he might be convicted of the murder charge he was going to face.
"Yes and he said he was going to use it in his defence as well," Det Sgt O’Toole replied.
"How about getting the murder charge dropped?" Mr Grehan asked.
"I did not discuss that with Mr Dowdall at all," Det Sgt O’Toole replied. It never came up."
He told Mr Grehan that Dowdall had also indicated that he was willing to give evidence.
Det Sgt O’Toole was he was not a party to any discussion about the murder charge being dropped and did not know about it at that point.
After the gardaí asked him to put down everything he knew, Det Sgt O’Toole said at the next meeting on 4 July, Dowdall came up with a 50-page typed document. The court heard his wife had an eight-page document at the following meeting on 12 July.
Referring to the meeting on 4 July which lasted over three hours, Det Sgt O'Toole said Dowdall returned with his document and gardaí asked for that to be read out.
"He didn't read it, the wife did and he listened," said the detective. The court heard Dowdall had not signed the document but initialised each page individually to show that it was his document.
Mr Grehan said in his mind this was "a tease" saying: "You asked him to read it out, he didn't, his wife did. You asked him to sign it, he didn't and he put a JD at the bottom".
Det Sgt O'Toole said Dowdall indicated he was willing to give evidence in relation to the event at this meeting but that he and his family would have no option but to leave the country due to fears for their safety.
Referring to the third meeting on 12 July, the witness said he made contact with Patricia Dowdall on 11 July and made arrangements to meet her and her husband at Dublin Airport Garda Station the following day to clarify some matters and discuss their ongoing personal concerns. Mrs Dowdall read out an eight-page document at this meeting.
The detective said it was clear from this meeting that Dowdall was willing to make a statement and that all information from this meeting was provided to the investigation team and the DPP.
The witness said a statement was not taken from him on this date as he wanted to wait and see what the attitude of the DPP was as he was "a man before the courts".
Mr Grehan asked the witness: "In case it tainted what you were doing?". The witness agreed with this statement.
Mr Grehan asked the witness if he was aware that the DPP had written to Dowdall's solicitor on 16 September, 2021 to confirm that a plea to facilitation was acceptable.
Det Sgt O'Toole said his knowledge was that a section 72 charge was being preferred and that a nolle prosequi was going to be entered but that he had not discussed it with Dowdall as it was not his position.
The detective said he had a conversation with Dowdall on 22September to see if he wished to make a statement and told him when he makes a statement that he may or may not be used as a State witness and that a statement does not mean he will be automatically protected.
An arrangement was made to take a voluntary statement from Dowdall on 23 September 2022 and he "fully signed" it. The witness said Dowdall knew when he made the statement that it did not guarantee anything and that nothing was being offered to him.
Dowdall was charged with facilitating the murder of Mr Byrne on 28 September this year.
Mr Grehan put it to the witness that he had given "very soft evidence" at Dowdall's sentence hearing in October in terms of his involvement in the Regency.
"Would you agree or not agree you soft-pedalled evidence at Dowdall's sentencing hearing on the limited facts he pleaded guilty to?" asked Mr Grehan. The witness disagreed and said the Special Criminal Court had sentenced Dowdall in accordance with the facts.
When asked what Dowdall's involvement was in the Regency, the detective said Dowdall was involved in booking a room at the hotel prior to the murder. He went on to say that he did not believe that Dowdall had knowledge that the room was to be used as part of the murder plan at the time of booking it.
Mr Grehan put it to the witness that Dowdall was "an innocent used by others" and then asked if this was the case then what he was pleading guilty to. "That he booked the room, he was pleading guilty to what he actually did," replied the witness.
"He had his wife book the room and brought his father to collect his passport and drove to the Regency, where his father went in and used the bathroom and then they on their way over to Patsy Hutch to give over the key and were told 'no' to turn back and go back to Richmond Road to hand over the key and met there with Gerard Hutch and his father handed over the key in his presence," he said.
Mr Grehan asked the witness if Dowdall's father Patrick Dowdall had lied when he booked the room in the Regency.
"He gave a slightly incorrect mobile number. It was supposed to be for Patsy Hutch who was staying there with a female," he replied.
"You are saying it is because Patsy Hutch might be having a liaison with a woman that Patrick Dowdall might lie about his number and address?" asked the barrister. "I'm just surmising that," he replied.
Mr Grehan said if "Patsy Hutch was doing all that" then there was no reason for him to involve four other people.
The witness agreed with Mr Grehan that he had also agreed at the sentence hearing with "a bald proposition" that Dowdall was not a member of a criminal organisation.
Asked if this was his view, having listened to the audio recording of Dowdall and Mr Hutch driving to Northern Ireland on 7 March 2016, the detective said it was.
Last Friday, Brendan Grehan SC, for Mr Hutch, said he wished to raise an issue on the admissibility of evidence to be given by Dowdall on foot of the Supreme Court decision in DPP v Gilligan.
In the Gilligan case, the Supreme Court found that while the evidence of a witness in a protection programme is admissible, it should be excluded if the circumstances in which it came about fall below the fundamental standard of fairness.
Jonathan Dowdall, aged 44 - a married father of four with an address at Navan Road, Cabra, Dublin 7 - was due to stand trial for Mr Byrne's murder alongside Mr 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.
Dowdall has been jailed by the Special Criminal Court for four years for facilitating the Hutch gang in the notorious murder of Mr Byrne.
The former Dublin councillor is currently being assessed for the Witness Protection Program after agreeing to testify against former co-accused Gerard Hutch, who is charged with Mr Byrne's murder. Dowdall is expected to give evidence against his former co-accused Mr Hutch in the coming days.
Mr Byrne, from Crumlin, was shot dead at the hotel in Whitehall, Dublin 9 after five men, three disguised as armed gardaí in tactical clothing and carrying AK-47 assault rifles, stormed the building during the attack, which was hosting a boxing weigh-in at the time. The victim was shot by two of the tactical assailants and further rounds were delivered to his head and body.
Mr Byrne died after suffering catastrophic injuries from six gunshots fired from a high-velocity weapon to the head, face, stomach, hand and legs.
Mr Hutch's two co-accused - Paul Murphy, aged 61, of Cherry Avenue, Swords, Co Dublin and Jason Bonney, aged 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 5 February 2016.
The trial continues tomorrow before Ms Justice Burns sitting with Judge Sarah Berkeley and Judge Grainne Malone.