High Court of Ireland Decisions

Neutral Citation No: [2007] IEHC 75

THE HIGH COURT

JUDICIAL REVIEW

2006 No. 242 J.R.

BETWEEN/

SEAN HARTE

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Ex-Tempore Judgment of Mr. Justice O'Neill delivered the 19^th day of February, 2007

In this case the applicant seeks an order of prohibition of his trial in respect of a charge under s. 3 of the Non-Fatal Offences Against the Person Act, 1997. The charge in question relates to an incident which took place on 30^th November, 2002. The background to the incident would appear to be, expressing it as best I can in the most neutral of language, that at a particular licensed premises the applicant was on the premises at a certain stage; there appears to have been some interchange inside the premises; there is an allegation that the applicant assaulted a member of the staff of the premises and after that he ended up outside the premises at which stage the Gardaí had arrived on the scene. In due course the applicant was arrested, handcuffed and placed in the back of a patrol car.

The State case as evidenced from the statements that have been put in evidence and also from the affidavit evidence concerning other proceedings which transpired in the District Court is that the applicant was unco-operative, abusive, verbally abusive and because of that he had been arrested and put in the back of the car. In the course of the journey from the licensed premises to the garda station it is alleged that the applicant bit Garda Wynne on his arm and this is the subject matter of the assault charge under s. 3. In addition to that the applicant, by way of summons, was brought before the District Court to answer a number of charges under the Public Order legislation and also apparently of an assault on the barman, a Mr. Healy. The District Court case took place on 12^th December, 2003 and the applicant was convicted of those offences and he had a number of fines imposed upon him. He did not appeal his convictions as so recorded.

This application is brought on the basis that a video tape which the applicant contends was in existence taken by way of closed circuit television directed at the front of this premises or the area immediately outside would have demonstrated what happened before the applicant was put into the garda patrol car and it is the applicant's contention that this would have assisted him in ruling out any aggressive behaviour on his part and in establishing a defence of self-defence to the charge of assault.

The application is resisted by the Director of Public Prosecutions on a number of grounds, firstly, that the applicant was out of time when making this application; secondly, apart from being out of time in the making of the application there was then gross delay in processing the application thereafter; thirdly it is contended that there was not a duty on the part of the Gardaí to have got in this video evidence and preserved it and that no request was made for it until long after the event and long after the video tape had been played over. And finally it was contended that in any event the video tape would not have shown the assault in the car, and that the events outside of the public house on the pavement, or wherever it was, before the applicant was put into the patrol car could not in any circumstances support a defence of self-defence given that circumstances had moved on, the car had moved away; the car had to be stopped twice on the way to the police station. The first time it stopped Garda Wynne got into the back of the car and it is alleged was assaulted and thereafter the car had to be stopped again and Garda Flanagan had to assist in quelling the situation and that in any event the submission made by the D.P.P. was that events had moved on from whatever had happened outside of the licensed premises and therefore these events or a recording of them could not at all assist the applicant in setting up a defence of self-defence.

I propose to leave the issue until the end. I am quite satisfied that there was a duty on the part of the Gardaí to have got this video tape even if they were not told expressly by Miss McGowan that it was there and available to them. They must have known that in premises such as that kind it was almost de rigeur, certainly at the very least habitual, for there to be closed circuit television and therefore there would be available a video tape which might or might not have demonstrated events relevant to any proposed charges. There is no evidence at all that the Gardaí did this and it is perfectly clear that they did not take any steps to recover this evidence and therefore, in my view, even without deciding whether or not they were told by Miss McGowan, the manager of the pub, that it was available, I am satisfied that they must have known that in all likelihood it was available and they took no steps to enquire about it or to get the tape. In that regard I am quite satisfied that the Gardaí did fail in their duty in that respect.

The next issue which of course necessarily must arise is whether or not whatever might be revealed on this tape is of any significant value or could have any value of substance to the defendant in making his defence. In approaching that question one has to consider what would be likely to be revealed in the video tape and also one must have regard to whatever other evidence was available concerning those particular events.

We know that the assault, or the alleged assault is supposed to have taken place in the back seat of the car and that it moved a few hundred yards down the road so quite clearly the assault could not possibly have been shown on the video tape. The issue then arises as to whether or not the events outside of the pub could have assisted the applicant in setting up the defence of self-defence. In my view, that is highly unlikely and is so remote in fact as to be a negligible possibility. Clearly events had moved on, the applicant had been arrested and placed in the back of the car and the car moves off so it would seem to me that regardless of what may have happened on the pavement outside of the pub the circumstances had changed so significantly that anything that happened outside of the pub would seem to me to have no real prospect of furnishing the applicant with the defence he now invokes, i.e. the defence of self-defence. So on that basis alone, it would seem to me that the applicant has failed to demonstrate that the evidence, or at least that which might have been shown on the video tape would assist him in making the defence he proposes.

The next question which of course has to be considered is the other evidence which was available and the other evidence in this case is the eye witness testimony of a number of people, not least of which is Miss McGowan, and she gave her evidence to the District Court. There was also the evidence of Garda Wynne himself and there was the evidence of, I think it was Mr. Healy, the injured man. All of that evidence was heard by the District Court when the other summonses were heard and the applicant was convicted of the various offences relating to his conduct in that space, namely between the pub and the patrol car, certainly insofar as some of these offences are concerned, that is to say the public order offences, and in doing that the District Court, of course, had to be satisfied beyond reasonable doubt of the case against the applicant. Here you have a most unusual situation where not only is there other evidence available of what happened outside of the pub but in fact it has already been the subject matter of a judicial, as it were, inquiry by a court of record that had reached conclusions that were entirely adverse to the applicant in this regard and it would seem to me that having regard to that it could not reasonably be said that the lost video evidence could amount to evidence which would in any kind of realistic way assist the applicant in his defence to this charge. For those reasons I am inclined to reject the application.

That brings me to the question of time. The applicant was clearly out of time in bringing his initial judicial review application. The return for trial was in December of 2003 and the ex parte application for judicial review was not moved until the following July, several months out of time. There is no explanation given as to why that delay had occurred. Then, from thereafter there has been extraordinary delay in processing this case, such that no motion was brought initially, then the court intervened and then there was a second motion and it was only eventually in March of this year that the proceedings were finally got underway. In the absence of any explanation for the initial delay from December of 2003 until July of 2004 in making the initial ex parte application in my view it is not open or would not be open to this Court to extend the time because it is quite clear from the authorities, and I suppose in particular the cases of Roche and the case of Dekra that if the delay is not explained then there cannot in general not be grounds for an extension of time. I would be inclined to refuse this application on the basis that it is out of time and there should not be an extension of time. So for all of these reasons I reject the application.

Approved: O'Neill J.