The Court of Appeal has dismissed an appeal by J. S. seeking to stop a sexual assault prosecution, ruling that deleted phone footage did not create a real risk of an unfair trial.
The prosecution concerns an alleged incident at an apartment block in Dublin 17 on 6 January 2013. The complainant alleged that J. S. made a lewd remark and grabbed and squeezed his crotch beside an elevator in the underground car park. J. S. denied grabbing him but acknowledged flicking his hand towards the complainant’s crotch and making contact, which he described as “only a tap”. He said he had been drinking and intended it as a joke.
After the incident, J. S. recorded the complainant on his phone. Garda Healy later viewed the footage, which he recalled showed the complainant walking down a corridor from behind. In the garda’s presence, J. S. deleted the video and the complainant deleted a photograph. J. S. signed an acknowledgment that he deleted the footage voluntarily. The complainant initially said he did not wish to make an official complaint, but made a formal complaint the following day.
The District Court rejected J. S.’s application to prohibit the trial and directed that it proceed before another judge. The High Court later refused his judicial review application and ordered him to pay the respondents’ costs. He appealed that decision, apart from the High Court’s conclusion that the lost-evidence issue could be considered by judicial review. The appeal court noted that no transcript of the District Court hearing or record of the judge’s reasons was available.
The Court of Appeal said the footage did not show the alleged contact at the elevator and contained no reference to what had happened there. The appellant said it captured the complainant making a 999 call and telling him to stop hitting him; Garda Healy’s affidavit said the footage he saw did not show the call. The judgment also noted that a transcript of the 999 call existed.
The court concluded that the footage could only have been of peripheral relevance. Whether an assault occurred would have to be decided on the oral evidence about the encounter at the elevator. It found no basis to prohibit the prosecution and dismissed the appeal.