The High Court has refused to stop the prosecution of Gerard Hegarty on an assault causing harm charge arising from an alleged incident after he left a nightclub in Newmarket, County Cork.
Mr Hegarty sought an order prohibiting his further prosecution because two videotapes connected with the area were unavailable to his defence. He argued that the loss of the footage meant he could no longer receive a fair trial.
The charge arose from events alleged to have occurred after Mr Hegarty entered a car following a night out on September 21, 2003. Prosecution statements alleged that, after the car had left the nightclub, he refused to get out and assaulted occupants. One woman suffered a fractured ankle. It was also alleged that Mr Hegarty took an iron bar and attempted to assault the driver.
Mr Hegarty denied assaulting the complainants. His account was that he had been invited into the car, later asked to be let out when it did not travel towards Charleville, and was himself attacked before taking the iron bar to defend himself.
Gardaí examined footage from a SuperValu shop and the nightclub. The shop footage showed neither Mr Hegarty nor the location of the alleged assault. The nightclub footage showed him speaking to one complainant at about 3.40am and getting into the car. Gardaí retained that tape and sent it to the State Solicitor, but it was subsequently returned and later could not be found.
Mr Justice Michael Peart accepted the general prosecution duty to preserve material which might bear on guilt or innocence. However, he found the missing footage showed only events outside the nightclub, while the alleged assault occurred later and outside the camera's view.
He also found that the prosecution statements contained no suggestion that Mr Hegarty had entered the car unwillingly or aggressively. The tape therefore offered no material assistance on either the assault or credibility.
The judge concluded that its accidental loss had no effect on Mr Hegarty's right to a fair trial and refused the prohibition and injunction sought.