The High Court refused an application by Ciaran and David Matthews to prohibit their pending Circuit Criminal Court trial over an alleged assault in Dundalk, finding that Gardaí failed to seek potentially relevant CCTV promptly but that the applicants had not proved the footage’s absence created a real and substantial risk of an unfair trial.
The brothers are charged with assaulting Andrew McAfee and causing him harm, contrary to section 3 of the Non-Fatal Offences Against the Person Act 1997. The alleged assault took place on Park Street on 16 June 2002. The judgment, delivered by Mr Justice John MacMenamin on 14 December 2007, records that the trial had been listed at Dundalk Circuit Court in March 2004 and adjourned to allow the judicial review application.
The prosecution evidence described in the judgment included accounts from doormen Leo Meenan and Raymond Coburn. Both said they saw the brothers involved in violence outside the pubs. Their accounts differed on the number of people involved and the sequence of events. McAfee recalled leaving Harvey’s pub but said he remembered nothing until waking in an ambulance; he did not see who struck him. The brothers denied assaulting him. The judgment also records that Coburn initially identified David Matthews to Garda Peter McHugh but named Ciaran in his statement.
Garda McHugh began a full investigation on 17 June 2002. He did not seek footage from nearby pubs, Moe’s and Harvey’s, until after McAfee made a formal complaint on 24 August. McHugh said McAfee had been unsure on several occasions whether he wanted to complain. He later reported that the cameras did not cover the middle of the street. The court criticised Gardaí’s replies to defence requests for footage as incomplete and noted that the delay and explanations had caused confusion.
Justice MacMenamin concluded that seeking footage from both premises should have formed part of the investigation. He found a failure in the Garda duty, where reasonable and practical, to seek and preserve evidence bearing on an accused person’s guilt or innocence. However, the applicants also had to show a real and substantial risk that the missing evidence meant they could not receive a fair trial.
That threshold was not met. The court said it was unclear whether the events inside and outside Harvey’s were part of one continuing incident, whether the cameras in place in 2007 were the same as those in 2002, or whether their footage would have captured useful images. The street was crowded that night, and it was not established that any recording would probably have helped determine guilt or innocence. The judicial review application was therefore refused; the court did not halt the trial.