The High Court has prohibited the prosecution of Valeriu Sirbu for assault, finding that the loss of CCTV footage created an unavoidable unfairness that could not be remedied at trial.
In a judgment delivered on 20 March 2015, Ms Justice Baker granted an order of prohibition by way of judicial review. The order restrains further prosecution of Sirbu in the form specified in the amended statement of grounds. It does not determine whether he committed the alleged assault.
The charge arose from an incident alleged to have occurred outside a public house at a Christmas party on 14 December 2012. Sirbu and a work colleague attended the party. The colleague suffered serious injury and had no recollection of the incident. Sirbu accepted that an altercation occurred, but said he struck the colleague while defending himself after being attacked. The case was brought under section 3 of the Non-Fatal Offences Against the Person Act 1997, and the Director of Public Prosecutions had directed trial on indictment.
Gardaí and two other people viewed CCTV footage in the days after the incident. The footage was later overwritten before it could be downloaded. The DPP said Gardaí had been told there was no immediate risk of deletion and had tried to contact the system installer between 20 and 24 December. An attempt to download the footage on 26 December revealed it was gone.
Baker said the footage was central to both sides because there were no eyewitnesses and the injured colleague could not recall what happened. Four witnesses could describe what they had seen, but Sirbu and his defence had never viewed the recording and could not have it examined by an expert. The judge found that this left the defence unable to check what was visible or effectively challenge the witnesses’ recollections. Affidavit evidence also differed over whether the footage had been clear or poor quality.
The DPP argued that the trial judge could address any unfairness by excluding evidence or giving directions. Baker rejected that argument: the imbalance arose at the root of the prosecution case, and directions or exclusion would not restore the defence’s ability to test accounts of the lost recording. She held that the unfairness was unavoidable and sufficiently serious to justify the exceptional remedy of prohibition.