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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Connors v. D.P.P. & Ors [2006] IEHC 77 (28 February 2006)
URL: http://www.bailii.org/ie/cases/IEHC/2006/H77.html
Cite as: [2006] IEHC 77
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Neutral Citation Number: [2006 IEHC 77
[2005 No. 804 J.R]
BETWEEN
APPLICANT
RESPONDENT
RESPONDENT
EX TEMPORE judgment of O'Neill J. delivered on the 28th day of February, 2006
The applicant in this case was given leave by order of Hanna J. made on the 25th day of July, 2005, to seek an order of prohibition in relation to a charge against him of assault contrary to s. 3 of the Non Fatal Offences Against the Person Act, 1997, against one Ian Butler.
The facts of this matter may be summarised as follows: On 6th June, 2004, the applicant was invited by Ian Butler, his near neighbour, to go for a drink. The applicant apparently was short of money and wasn't keen to do so but was assured by Mr. Butler that all would be well, so off they set, on what I suppose may be described as a pub crawl. Their first visit was to the Bridge Bar and there apparently Mr. Butler had some difficulties over his welcome but in any event he managed to consume one pint and the applicant two pints. Thereafter they moved to the Porterhouse and they had one pint each and then on from there to the Yacht Bar and they had one pint each. Then they next went to the Ferryman but they were not let in and thereafter they went to the scene of the events which are the subject matter of these proceedings, Mooney's bar, where they had two to three pints. It appeared that while they were in Mooney's bar they became argumentative and they were asked by the barman, Mr. Cawley, to leave. First of all the applicant was put out and he left with a pint glass in his hand which Mr. Cawley was unable to get off him and then Mr. Butler left and they went down a lane where the incident which is the subject matter of the assault charge took place and it would appear that as a result of that incident Mr. Butler suffered a severe injury to his face. Arising out of this incident Mr. Butler makes the complaint that he was struck in the face, on the left side of his face with a pint glass, by the applicant and it is that complaint which is now the subject matter of the charge under s. 3 of the Non Fatal Offences Against the Person Act, 1997.
After the incident Garda Heaneu came to investigate and he ascertained that there was some video footage of the bar area and also the door area in Mooney's pub. He viewed the footage and he describes what he saw in his affidavit, which I will deal with later. Garda Heaneu did not take possession of the tape and it now appears that the recording seen by Garda Heaneu has been deleted and therefore lost.
In these proceedings the applicants main ground of complaint is that the material on the video footage would have supported or corroborated his evidence to the effect that he was assaulted first by Mr. Butler in the pub and the material on the video would have supported his defence of self defence and he makes the case that the gardaí failed in their duty to take possession of and preserve this video and as a consequence of this failure that there is now a real risk that he cannot get a fair trial.
The principles of law governing the duty of gardaí in these situations are now well settled and indeed are not in dispute in this case and they may be summarised as follows: firstly, that the gardaí have a duty where it is reasonable and practicable to do so to take possession of and preserve evidence that can bear on the guilt or innocence of an accused person. Secondly, where evidence which the gardaí have a duty to collect and preserve is lost an applicant in proceedings such as this must show that there is a real risk that he cannot get a fair trial by reason of the absence of this evidence. Thirdly, that proceedings of this type i.e. judicial review proceedings, are not in the nature of a disciplinary tribunal on the conduct of the gardaí. The applicant must always show that there is a real risk that they cannot get a fair trial.
There is no doubt in my view that video evidence of the commission of a crime or the scene of a crime or events leading up to a crime or events immediately after is of great potential value to either the prosecution or defence. The mere existence of this type of recording is sufficient, in my opinion, to warrant its collection and preservation. Gardaí should not decline to collect material of this kind because they are of opinion that it does not disclose anything of evidential value because others, and in particular those who represent the defence, may discern in the lost material, evidence which is relevant to the guilt or innocence of an accused person. This may escape the notice of the investigating garda at that very early stage of an investigation. I am satisfied that the gardaí in this case failed in their duty to collect and preserve this video evidence.
The question that then arises is - Is there a real risk now that the accused can't get a fair trial because of the loss of this evidence? In determining that question I must look at the evidence available or likely to be available in the trial as is demonstrated on affidavit in these proceedings.
Firstly there is the evidence of Mr. Butler who says that he was approached in the laneway outside Mooney's pub by the applicant with a pint glass concealed beneath his jacket and that he was struck in the face with the pint glass and as a consequence suffered serious injury to the left side of his face.
Then there is the evidence of the barman in Mooney's, Patrick Cawley, who says that he saw the applicant and Mr. Butler arguing and hitting one another in the bar and that he took steps to eject both of them – first the applicant who he says left carrying a pint glass which he tried unsuccessfully to get off him. Mr. Cawley then says that the applicant, after he had left, put his head in the window of the pub, still with the glass in his hand and he shouted at Mr. Butler "I am going to eat your head off". After that Mr. Butler left. Mr. Cawley then saw the two of them fighting outside the pub and then they disappeared down the laneway where the incident of assault is alleged to have occurred.
Then there is the evidence of Garda Heaneu as to what he saw in the video and he says that he saw the applicant and Mr. Butler drinking at the bar and arguing with one another and he saw the barman, Mr. Cawley, escorting them from the bar. The footage from the exit of the premises showed Mr. Butler walking out the front door and the applicant walking after him with a full pint glass in his hand.
There is also the evidence of the memo of interview by the gardaí with the applicant in which the applicant admits that he struck Mr. Butler in the face with a glass but in the course of that interview he intimates that he did this out of fear of Mr. Butler because as he says, Mr. Butler was a violent man.
As the applicant admits striking Mr. Butler the absent video material would be relevant to a defence of self defence, only. This material could not bear on the question of mens rea of the crime because of the significant gap between the events in the pub and the events that occurred down in the laneway outside the pub.
The defence of self defence now is governed by s. 18 of the Non Fatal Offences Against the Person Act, 1997 and the relevant part of that section is s. 18, sub-s.1(a) and is as follows:-
"The use of force by any person for any of the following purposes, if only such as is reasonable in circumstances as he or she believes them to be does not constitute an offence.
(a) To protect himself or herself or a member of the family of that person or another from injury, assault or detention caused by a criminal act.."
and there are other provisions which are not relevant to this case.
Can it be said that the applicant is disadvantaged in making the defence of self defence relying no doubt on s. 18, sub-s.1(a) of the 1997 Act, by reason of the absence of the video material?
Taking the applicant's evidence at its height, which is to the effect that Mr. Butler hit the applicant first in the bar and this would appear on the video, it would seem to me that in the light of the evidence of Patrick Cawley, the barman, to the effect that he saw the applicant and Mr. Butler hitting one another in the bar, that he, Mr. Cawley, was unable to get the pint glass off the applicant as he was ejecting him from the pub; that when he left he then shouted in through the window at Mr. Butler as mentioned already, it would seem to me that in view of this evidence, a piece of video footage showing Mr. Butler hitting the applicant in the bar would in my view be very unlikely to sway a jury so as to have at least a reasonable doubt in the applicant's favour on the issue of self defence. On the basis of the above I would be inclined to conclude that the applicant has not demonstrated that there is a real risk of an unfair trial because of the absence of this video material.
The applicant has, however, further difficulties.
The first of these of course is the evidence of Garda Heaneu as to what he saw in the video. There is no evidence that Garda Heaneu saw Mr. Butler hit the applicant in the bar. The evidence of Garda Heaneu in these proceedings has not been challenged by cross examination and therefore, in my view, it must be accepted.
Secondly, the defence, under s. 18 requires that only such force as is reasonable or is believed to be reasonable may be used. Striking someone with a pint glass in the face, where that other person has no weapon, will present the applicant, no doubt, with very serious difficulties in establishing this defence and it is clear, in my view, that the video material, or in particular what the applicant contends is on the video, would have little or no bearing on the resolution of the question of whether the force used was reasonable or was believed to be reasonable by the applicant to protect himself from Mr. Butler.
In all of these circumstances I am satisfied that the applicant has failed to demonstrate that there is a real risk that he cannot get a fair trial because of the absence of this video evidence and in those circumstances I must refuse the relief sought.
Approved: O'Neill J.