The Court of Appeal has allowed the Director of Public Prosecutions’ appeal against an order barring the prosecution of Valeriu Sirbu, ruling that the potential prejudice from missing CCTV footage should be considered at his trial.
Mr Sirbu faces a single charge of assault under section 3 of the Non-Fatal Offences against the Person Act 1997. The alleged incident occurred outside a licensed premises during a workplace Christmas party on 14 December 2012. He accepts striking and kicking his colleague, who was seriously injured, but says he acted in self-defence. The colleague has no memory of the incident, and the judgment says there were no other witnesses to the attack.
Gardaí and two other people viewed the CCTV footage the day after the incident. The footage was later overwritten and could not be retrieved. The Court of Appeal said the investigating Gardaí took reasonable steps to secure it and had been assured it would not be overwritten for three months. The prosecution case therefore rests on statements from people who saw the footage.
In March 2015, the High Court granted Mr Sirbu an order prohibiting his prosecution on indictment. The DPP appealed. The Court of Appeal distinguished the case from an earlier case where missing CCTV was central to a mistaken-identity defence. Mr Sirbu accepts that he was the person shown in the footage, and his defence is self-defence. The court also noted that those who viewed the footage made statements that differed somewhat about its quality and the sequence of events.
The court acknowledged that losing the footage could hamper the defence, but said it was not persuaded that a trial would inevitably be unfair or that potential unfairness could not be addressed through rulings by the trial judge. Depending on how the evidence unfolds, the judge may exclude some or all evidence about the footage, including if the defence cannot effectively cross-examine prosecution witnesses. The judgment said it would be prejudicial if those witnesses materially departed from what their statements already recorded about what they saw.
The Court of Appeal allowed the DPP’s appeal. It did not decide that the missing footage was irrelevant or harmless, or determine what evidence may be admitted at trial. Those matters remain for the trial judge.