The High Court has refused an application by C.D. to stop the Director of Public Prosecutions pursuing a sexual assault charge, finding that missing CCTV still photographs did not create a risk to the fairness of the trial.
In a judgment delivered on 20 March 2009, Mr Justice O’Neill said the two stills said to be missing were unlikely to show material movements that were not visible in the available images. He concluded their absence did not prejudice a fair trial.
C.D. is charged with sexually assaulting Garda Dympna Bourke outside Leinster House on 5 August 2005. The allegation is that C.D. tried to grab her between the legs and that, as she pushed the hand away, it brushed her thighs. The judgment records that C.D. denies the charge. These are allegations and have not been determined in this judicial review.
The indictment also includes assault and public-order charges linked to the incident, and a separate charge of violent behaviour in a police station. C.D. had pleaded guilty to the assault and public-order counts, and not guilty to the sexual assault and police-station counts. The judicial review concerned only the prosecution of the sexual assault charge.
The incident was recorded by two CCTV cameras. Footage from Camera 1, which the court said showed the entire incident, was recovered and available for trial. An error in downloading Camera 29 footage meant it did not include the lead-up to the incident. Still photographs from Camera 29 were available, but the respondent could not deny that the still immediately before Photograph 1 and the one immediately after it had been lost.
C.D. argued that the missing images, each said to be taken half a second apart from Photograph 1, could help challenge Garda Bourke’s account. Justice O’Neill considered the Camera 1 footage and the available stills. He said C.D.’s body obscured much of Garda Bourke from Camera 29, and the available photographs showed little change in either person’s position. He found it highly improbable that the missing images would reveal material movements or help establish guilt or innocence.
The judge also refused an extension of time to bring the judicial review. He said the time limit began when C.D. was unequivocally told of the footage loss on 15 May 2005. The application was made on 6 November 2005, approximately three weeks outside the three-month limit after excluding the long vacation, and the delay was not adequately explained. Because C.D. had not shown a risk of an unfair trial, the judge refused an extension and dismissed the relief sought.