The Supreme Court has refused to prohibit the trial of a man accused of sexually assaulting a female Garda during an incident outside Leinster House in Dublin.
The appellant, identified as C.D., was alleged to have behaved aggressively on Kildare Street on 5 August 2005. According to the prosecution evidence, he shouted abusive language, kicked the Garda twice and struck her in the head or neck. He pleaded guilty to assault and threatening, abusive or insulting behaviour. Sentence on those offences was adjourned.
He denied a separate sexual assault allegation. The Garda alleged that he reached towards her between her legs and that his hand brushed her thigh.
The dispute before the Supreme Court concerned CCTV evidence. Cameras covered the area outside Leinster House. Moving footage from one camera recorded the entire incident and remained available. However, Gardaí mistakenly downloaded the wrong time segment from a second camera. Some still photographs from that camera survived.
C.D. argued that missing moving footage and additional still images which might have existed at half-second intervals could have assisted his defence. He claimed their absence created a risk that his trial would be unfair.
The High Court had rejected that argument after examining the available footage and photographs. The Supreme Court upheld that decision.
Mr Justice Fennelly said the preserved footage from the first camera was clear and showed the entire incident. He also agreed with the High Court that the missing half-second images were unlikely to reveal anything materially different.
The court stressed that Gardaí have a duty to preserve evidence capable of bearing on guilt or innocence, but that duty must be applied realistically. It did not require Gardaí to preserve still photographs at every half-second interval.
To stop a criminal trial, an accused must establish a real risk of unavoidable unfairness. The court found that threshold had not been met and dismissed the appeal. The sexual assault allegation therefore remained for determination at trial.