The audio evidence was played at the non-jury court over three days last week and a hearing into its admissibility concluded today
The court’s three judges are to decide on the admissibility of the surveillance tapes made when Mr Hutch was being driven to Northern Ireland by ex-Sinn Fein councillor Jonathan Dowdall weeks after the gangland shooting.
Mr Hutch’s lawyer, who argues that bugging carried out across the border is illegal, today said that to allow the evidence would be to put a “strange and very wrong” interpretation on surveillance laws.
The audio evidence was played at the non-jury court over three days last week and a hearing into its admissibility concluded today. Depending on the ruling, all, part or none of the recordings might be allowed into evidence. It is anticipated that Dowdall will be called to testify for the prosecution at some point after this.
Mr Hutch is charged with murdering David Byrne who was shot dead at the Regency on February 5, 2016.
Two other men, Jason Bonney and Paul Murphy, are accused of helping the criminal organisation responsible by providing cars used to drive the assailants away after the shooting.
Mr Byrne (33), a Kinahan gang member, was killed when three assault rifle-wielding masked raiders, disguised as ERU gardai, stormed the Regency in north Dublin along with a gunman dressed as a woman in a blonde wig, and another armed man in a flat cap.
The attack on a boxing weigh-in event fuelled a bloody feud between the Kinahan and Hutch crime gangs.
Mr Hutch (59), of The Paddocks, Clontarf, Dublin, Mr Murphy (61) of Cherry Avenue, Swords and Mr Bonney (51) of Drumnigh Wood, Portmarnock, deny the charges against them.
Jonathan Dowdall had also been accused of murder, but before the trial started, he instead admitted facilitating Mr Byrne’s killing by booking a hotel room for the perpetrators.
The court has heard when he drove Mr Hutch north on March 7, 2016, tracking and audio devices had been deployed on Dowdall’s Toyota Land Cruiser jeep by the garda National Surveillance Unit.
The prosecution is seeking to use in evidence a 10-hour recording of conversations from that journey. Mr Hutch's barrister Brendan Grehan SC, was today replying to submissions made by prosecutor Sean Gillane SC.
Mr Grehan argues that the Criminal Justice (Surveillance) Act 2009 was clear that an authorisation for a surveillance device can only apply within the state.
Mr Gillane has said he is not making any extra territorial claim over garda surveillance but argues that the bug was an “inanimate object” and recordings it made “by happenstance” when it crossed the border are admissible in evidence here as long as the device was lawfully deployed, retrieved and downloaded in the Republic.
He has said the defence’s claim that the law did not permit this could not be correct as it would mean the Oireachtas was “blind, deaf and oblivious” to the existence of the northern border and it would make the Act useless in investigating serious crime such as terrorism or drug trafficking.
In his reply, Mr Grehan said if the Oireachtas wanted to legislate past its borders it could do so but this would have to have been done clearly and explicitly.
There was nothing in the Act to suggest that it had scope beyond the borders of this state, he said.
The deployment of the device and recovery of its data were done in this jurisdiction but this was "incidental to the main purpose of the Act which is surveillance” which was done outside the borders of the state, Mr Grehan said.
“If that is done it must be done with legal authority,” he said.
The prosecution had “danced about” the subject of whether the Act allowed them to carry out surveillance outside the state, he said.
Mr Grehan said the description of the bug as an inanimate object was a “rather benign phrase.” It reminded him of a book that referred to killers who had stabbed people describing their crime by saying “the knife went in,” as if the weapon had a mind of its own.
He said it suggested the bug was like a fly buzzing around; it was incapable of being controlled, might go anywhere and if it happened to “pick up” things then the gardai got to benefit from it. If Mr Gillane was right, it could travel not just north but anywhere - “France, Spain or Asia” - as long as it came back to this jurisdiction, he said.
This failed to recognise that surveillance - the very essence of the Act -was taking place outside the jurisdiction, Mr Grehan argued.
He said Mr Gillane did not “actually say the words that the Act provides for the object to travel outside the jurisdiction and conduct surveillance.” However, the prosecution was relying on it, arguing that if the data was recovered then the law “had this in mind," Mr Grehan said
What it came down to was whether in interpreting the Act the court should licence surveillance operations in this jurisdiction as being capable of “going international.”
Referring to the Act covering airplanes and ships, Mr Grehan said that must apply within the territorial waters and skies of this country.
In as far as any “expansion” in territorial limits under the Act went, it was clearly the other way and “within the state,” he said.
“It’s asking the court to put a strange and very wrong interpretation on the act to suggest otherwise,” he said.
“Capturing people’s voices in a secretive manner is the surveillance, everything else is ancillary,” he said. “The core of the matter is that these matters are captured."
He also argued harvesting the evidence did not adequately respect his client’s right to privacy under the Constitution and the European Convention on Human Rights.
He accepted that right can be interfered with but for good reason and it must be proportionate and in accordance with the law.
Otherwise the agents of the state could interfere with anybody’s rights in an unregulated way. To suggest that the right to privacy is gone if there was a discussion of a criminal nature was to “approach things from the other end” and say “look at what we got.”
Mr Gillane had argued Mr Hutch’s expectation of privacy was “attenuated” given he was in someone else’s vehicle discussing murder.
Mr Grehan said it was maintained by prosecution that we all have a right to privacy “except for Mr Hutch because there’s a couple of comments” which suggested that the right does not apply if a crime is being planned.
Mr Hutch was charged in relation to a crime alleged to have happened weeks earlier, he said.
“The overall position taken by Mr Gillane is that the end justifies the means," Mr Grehan said. "If it does, that is the end of the rule of law."
Ms Justice Tara Burns said she expected the court to deliver its ruling on the recordings on Friday.