Lack of CCTV footage does not render trial unfair

About this case:

• Judgment:
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The Court of Appeal, comprising Kelly J, Irvine J and Hogan J, heard that the applicant Mr Sirbu is currently facing a single charge of assault under s. 3 of the Non-Fatal Offences against the Person Act 1997 before the Circuit Court.

The charge relates to an alleged assault perpetrated outside a public house at a Christmas party on 14th December 2012.

The applicant claims he was attacked by his colleague, and that his actions were in self defence. However, the colleague has no memory of this event, and there are no other witnesses.

The event was captured by CCTV outside the public house, and was viewed by two investigating members of An Garda Siochána, as well as by the finance director of the applicant’s employing compant, and the owner of the public house.

Giving a statement, the finance director Mr Tony Rice, alleged that he was “90% certain that the main who assaulted was Valeriu Sirbu.”

The Court heard that although the Gardaí made every reasonably measure to secure the footage, they were unable to contact the installer, leading to the footage being overridden.

Delivering the judgment, Hogan J noted that the Gardaí were assured there was no reason to suspect that the footage would be overridden. The alternative, to seize the hard drive containing the footage, would have been unreasonable and caused difficulty for the licensed property on whose CCTV the assault was captured.

Citing Braddish v. Director of Public Prosecutions 3 I.R. 127, the Court noted that the general principles regarding the gathering of evidence are well established; the “Gardaí are under a duty to seek out and preserve all evidence bearing on the guilt and innocence of an accused.”

However, the Court noted that this duty is not absolute, and will be tempered by “considerations of practicability, feasibility and the availability of resources.”

Furthermore, the Court noted O’Donnel J’s statement in Byrne v Director of Public Prosecutions IESC 54, 1 I.R. 346, 356, that “it would now require something exceptional to persuade a court to prohibit a trial.”

The Court also cited Dunne J in Kearns v. Director of Public Prosecutions IESC 23 where Dunne J found that the relevant question was whether “there is a genuine risk of an unavoidably unfair trial.”

The Court referred to a case which also concerned missing video-footage, that of Stirling v. Collins IESC 13 in which “the prosecution case rested on the remote identification of a youth by an observing Garda based on CCTV footage which was no longer available and in circumstances where there were no eyewitnesses to the incidents which were the subject matter of the criminal damage charge.”

While agreeing with that case’s decision, that a trial would be unfair, the Court found that the present case contained a number of subtle differences.

In particular, the Court noted that in the present case identification was not an issue, as the applicant accepted that they were the individual in the video. Rather, the applicant was claiming self defence, an argument that did not require access to the CCTV footage. Moreover, a number of individuals had seen the original footage in the present case.

The Court conceded that the loss of the footage was unfortunate, and had the potential to hamper the applicant in his claim of self defence.

However, it was not found that the test of an “unavoidably fair trial” had been met. The trial judge would be able to assess the potential for prejudice, and ensure the applicant’s rights were protected.

Thus, as Hogan J concluded: “I am not persuaded that the missing evidence in the present case means that the trial will inevitably be unfair or that such potential unfairness cannot be satisfactorily addressed by means of appropriate judicial rulings… It follows, therefore, that I believe that, for the reasons stated, the appeal should be allowed.”