The High Court refused an application to prohibit criminal proceedings against two people charged with assault, finding that Gardaí failed to preserve recordings from a nightclub hallway and side entrance but that their absence did not prevent a fair trial.
In a judgment delivered on 23 February 2006, Mr Justice I. O’Neill said the applicants had not shown that the missing footage created a real risk they could not receive a fair trial. He therefore refused the application to stop the prosecution. The judgment did not determine whether the alleged assault occurred or the applicants’ guilt.
The charge arose from an alleged incident at about 1.30am at Club Tivoli on Francis Street in Dublin. The injured party, Peter Dennehy, said he and a friend returned with tickets after initially being refused entry, but were turned away again. He alleged that after he caught one applicant’s coat, the door opened and both applicants pulled him inside and assaulted him before escorting him out through a side exit.
The applicants gave a different account. They said Dennehy and his companion sought entry late in the night, and that Dennehy forced his way in and assaulted one of them. They said they restrained him, calmed him in a room and then escorted him out. An employee, Fiona Hurley, had made a statement supporting the applicants’ account. Other witnesses had also made statements to Gardaí.
The judgment recounted conflicting evidence about what recordings Garda Moran was offered and what could be seen. The judge was satisfied that no recording from a front-door camera had been shown to him, and that the evidence did not establish that such footage was available. But the judge found that Garda Moran viewed footage from the hallway and side-exit cameras and that Gardaí failed to seek out and preserve those recordings. The judge said investigators should preserve recordings of the alleged incident or its immediate aftermath rather than reject them as apparently unhelpful or not supportive of the prosecution.
The judge assessed the likely value of the missing footage. The side-exit recording showed Dennehy for only two to three seconds as he was escorted out. The hallway footage was described as poor quality, and the accounts of what it showed differed. Even accepting the bar manager’s description of a figure outside, a rapidly opening door and a scuffle, the judge considered that consistent with either account. With several eyewitnesses available, the missing recordings would not materially disadvantage the applicants’ defence.
The case concerned judicial review of the prosecution process and the preservation of potential evidence. The court refused the requested prohibition; it did not decide the assault charge.