The High Court has refused an application to stop a sexual assault prosecution, finding that the deletion of a phone video and photograph did not create a real and unavoidable risk of an unfair trial.
In a judgment delivered on 5 February 2016, Mr Justice McDermott dismissed the judicial review brought by J. S. The applicant had sought orders preventing further prosecution, quashing the Director of Public Prosecutions’ decision to prosecute, or overturning a District Court ruling on the deleted material.
The charge arose from an alleged encounter in an apartment block’s underground car park in the early hours of 6 January 2013. The complainant alleged that J. S. made a sexual comment and grabbed his testicles over his jeans. J. S. accepted that he made a sexually suggestive remark and made contact with the complainant’s genital area, but described it as a tap and denied intending to hurt him. The judgment records that the two accounts differed over the nature and duration of the contact.
The accounts also differed about what happened afterwards. The complainant said J. S. waited for him near his apartment and followed him as he called Gardaí. J. S. gave a different account of their movements. Garda Kieran Healy viewed a video on J. S.’s phone, described as about 30 seconds long, showing the complainant walking down a corridor while J. S. recorded him. The video and a photograph taken by the complainant were deleted at the scene. The complainant initially said he did not wish to make a formal complaint, but changed his mind the following day. Healy later accepted that he could have seized the phone.
Before the District Court trial proceeded, the judge considered whether deletion of the material made a fair trial impossible and refused to stay the prosecution, describing the footage as “helpful at best”. The High Court said the issue could be considered by judicial review because it had been heard as a discrete preliminary issue, but stressed that intervention in an ongoing criminal case is exceptional.
The High Court found that the deleted material concerned events after the alleged assault, not the central contact underlying the charge. It noted that J. S.’s admissions covered several core aspects of the encounter and that the video and photograph did not show the alleged assault. The trial judge retained responsibility for ensuring a fair trial as evidence emerged.
The court also rejected the claim that the circumstances of deletion created a legitimate expectation that J. S. would not be prosecuted. It found that neither the Garda nor the complainant gave an assurance that the case would not be pursued, and the DPP had made no such undertaking. The court concluded that the Garda’s handling of the deletion did not alter the decisive question of trial fairness. It refused all relief claimed.