The High Court has refused Kevin McCormack’s application to stop his trial on charges arising from a handbag snatching in Dublin, finding no evidence that Garda conduct or missing CCTV footage made a fair trial impossible.
In a judgment delivered on 17 April 2007, Mr Justice Charleton said the issues raised belonged before the trial court. The Circuit Criminal Court trial had not yet taken place. The High Court was not deciding whether any evidence would be admissible at that trial.
McCormack sought judicial review after being granted leave in June 2005. He argued that gardaí had not properly conducted or recorded two interviews following his arrest, and that they had failed to preserve all CCTV footage from around the location of the incident. His counsel also complained about profanities, derogatory remarks and the conduct of one garda during the recorded interviews, and said McCormack had not been given a proper opportunity to explain his defence.
The judgment recounts that Renata Bubeniene reported that a young man had taken her handbag on Amiens Street on 4 July 2004. McCormack was arrested after being seen nearby and matching the clothing description. He denied the offence. In interview, he said he had been in the area but had gone to his grandmother’s house for dinner before the theft. The judge said the recordings showed that he had an opportunity to make that account, albeit in a piecemeal way. He found the interviews were not unstructured and that there had been no abuse of McCormack’s rights.
On CCTV, Garda Wayne Kelly’s sworn evidence was that he and colleagues had checked relevant camera systems and recovered and viewed the tapes, but the incident was not recorded. The judge said any dispute about whether Kelly had acted reasonably could be raised at trial, including through cross-examination. He did not find that the footage issue created a serious risk that a fair trial could not take place.
The court said the burden was on McCormack to show a real or serious risk that a fair trial had become impossible, despite the trial judge’s powers to rule on evidence and direct the jury. It found that burden had not been met. The judgment therefore refused to prohibit the prosecution from proceeding; it left evidential issues and the trial judge’s powers during the trial untouched.