The High Court has ruled that Wayne Nash must be given access to the digital audio recording of a related Tullamore District Court trial so his lawyers can prepare his defence to a public order charge arising from the same nightclub incident.
Nash is accused of threatening, abusive or insulting behaviour at a hotel nightclub in Tullamore on the night of 12-13 January 2019. He denies the allegation and maintains that he was assaulted. He later attended Tullamore Garda Station to make a complaint.
His friend, Mr Keogh, was separately charged with assault arising from the incident. Keogh's case was heard on 7 September 2020 and dismissed after the District Judge identified material inconsistencies in prosecution evidence. Some of those witnesses were also expected to testify in Nash's case.
Nash's lawyers sought time to obtain the digital audio recording, or DAR, of Keogh's hearing so any earlier inconsistent statements could be used in cross-examination. The District Court refused an adjournment and indicated that it would refuse release of the recording, partly on the basis that Nash could have attended Keogh's hearing.
Mr Justice Max Barrett found that reasoning flawed. Nash had in fact been excluded as a potential State witness. The judge also said requiring him to prove personally what had been said at the earlier hearing would engage his constitutional right against self-incrimination.
The High Court held that access to the recording was necessary for effective cross-examination. Irish law permits a witness to be challenged with a previous inconsistent statement, but the defence must be able to prove that statement if the witness denies making it.
The judge said the recording was plainly capable of being material evidence and could be supplied relatively easily. He concluded that Nash would suffer prejudice and be deprived of his right to a fair trial if prosecuted without it.
The court indicated that a declaration entitling Nash to the recording would suffice. It declined to prohibit the prosecution itself.