The High Court has refused John Cullen’s application to prohibit his trial on five summary charges, finding that unavailable CCTV footage from a public house did not deprive him of an important line of defence or create a real and serious risk of an unfair trial.
The charges relate to an incident on 15 May 2015. Four arise under the Criminal Justice (Public Order) Act 1994 and concern alleged intoxication, offensive conduct, threatening or abusive behaviour, and failure to desist. The fifth alleges that Cullen parked a vehicle in a public place in a way likely to endanger other people. These are allegations; the judgment did not determine whether Cullen was guilty.
Cullen argued that the Director of Public Prosecutions had failed to seek out or preserve CCTV footage showing an altercation before the events covered by the charges. His son had viewed the footage the day after the incident, but the Gardaí were not told about its existence until July 2016. By then, it was no longer available. The judgment records that Gardaí had footage covering the events underlying the summonses and a period immediately before them. Cullen also complained that a prosecution witness’s account differed from his own and that no contemporaneous notes of the witness’s account had been disclosed. Garda evidence was that no statement had been taken from that witness on the night.
Justice O’Regan allowed Cullen to amend his judicial review grounds to refer to the witness’s statement and to a neuropsychological assessment. The assessment, based on a consultation in October 2018, described cognitive difficulties and said Cullen would be a poor witness, including under cross-examination. The court considered the proposed amendment arguable at the applicable low threshold. Allowing amendments did not decide whether the assessment established an unfair trial or entitled Cullen to relief.
On the substantive application, the judge said it was not evident how the missing footage could assist the defence to the charges. She found that the footage had not been brought to Garda attention before July 2016, while Gardaí had secured their own footage of the charged events. Cullen had therefore not established a breach of the duty to seek out and preserve evidence, or a real and serious risk of an unfair trial.
The court also rejected prohibition based on exceptional circumstances. It noted that Cullen had previously given a detailed account of a 2015 encounter, would have an advocate present, and had not been shown to be unable to instruct his solicitor. The judge refused the relief sought. The judgment concerns the judicial review application; it does not record the outcome of the District Court charges.