Ciaran Matthews v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 14 December 2007
• Neutral Citation: [2007] IEHC 433
• Docket Number: No. 335 J.R./2004
• Court: High Court
• Date: 14 December 2007

[2007] IEHC 433

THE HIGH COURT

No. 335 J.R./2004

No. 353 J.R./2004

Matthews v DPP

JUDICIAL REVIEW

BETWEEN/

CIARAN MATTHEWS

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

BETWEEEN/

DAVID MATTHEWS

PLAINTIFF

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

DEFENDANT

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

MURPHY v DPP 1989 ILRM 71

BRADDISH v DPP & HAUGH 2001 3 IR 127 2002 1 ILRM 151

DUNNE v DPP 2002 2 IR 305

BOWES & MCGRATH v DPP 2003 2 IR 25

SCULLY v DPP 2005 1 IR 242 2005 2 ILRM 203

MCKEOWN v DPP UNREP SUPREME 9.4.2003 2003/41/9855

LUDLOW v DPP & JUDGE O'SHEA UNREP DUNNE 16.7.2005 2005/36/7573 2005 IEHC 299

CONNORS v DPP UNREP O'NEILL 23.2.2006 2006 IEHC 66

MCGRATH v DPP UNREP 23.2.2006 EX TEMPORE

MCFARLANE v DPP UNREP SUPREME 7.3.2006 2006/35/7440 2006 IESC 11

V (R) v DPP UNREP MACMENAMIN 31.7.2007 EX TEMPORE

CRIMINAL LAW

Trial

Evidence - Video CCTV footage - Failure to preserve evidence - Whether absence of evidence creating real risk of unfair trial - Judicial review - Application to prohibit trial - Whether trial should be prohibited - Murphy v DPP [1999] ILRM 71, McGrath v DPP [2006] IEHC 42, (Unrep, O'Neill J, 23/2/2006) and McFarlane v DPP [2006] IESC 11, [2007] 1 IR 134 considered - Application dismissed (2004/335JR - MacMenamin J - 14/12/2007) [2007] IESC 433

Matthews v DPP

Judgment of

Mr. Justice John MacMenamin

1 The applicants seek prohibition by way of judicial review of a criminal trial currently pending before the Circuit Criminal Court, Eastern Circuit, sitting at Dundalk wherein they are charged with assault of one Andrew McAfee, causing him harm contrary to s. 3 of the Non Fatal Offences Against the Person Act,1997.

2 The matter was listed for trial at Dundalk Circuit Court in March, 2004 when it was adjourned by His Honour Judge Raymond Groarke to enable the applicants to make this application.

3 The said assaults are said to have occurred on 16^th June, 2002.

4 At approximately 11 p.m. Andrew McAfee is alleged to have been assaulted close to the middle of Park Street, Dundalk, County Louth. It is stated that he was seen being struck on the head by two persons as he lay in the street. Two witnesses, Raymond Coburn and Leo Meenan, are alleged to have witnessed the assault. Both men are doormen/bouncers in licensed premises adjacent to where the incident is alleged to have occurred.

5 The first of these public houses is called "Moe's". On the opposite side there is a public house called "Harvey's". The matter was investigated by a then member of An Garda Síochána, Mr. Peter McHugh. He stated that on the night in question he spoke to Raymond Coburn and Leo Meenan but did not note down their remarks. Subsequent to this conversation he arrested David Matthews, the second named applicant, who is a brother of Ciaran Matthews, the first named applicant.

6 David Matthews was interviewed by Garda McHugh. In the course of this interview contained in the Book of Evidence he stated that he was in another pub, Courtney's, during the course of the evening and then went across to Harvey's pub. He admitted that he was in a fight in Harvey's pub with one Andy Mackin. However, he denied being in a fight with anyone else that night. He stated that he was ultimately put out of Harvey's pub by the bouncers.

7 Ciaran Matthews in his statement stated that he too had been in Harvey's pub with his brother. He used to work in Courtney's pub. He stated that his brother David was fighting with Andy Mackin. Ultimately they were put out of the pub by bouncers. Ciaran Matthews describes the fight between his brother and Andy Mackin starting in the pub and finishing outside on the street. He states that he saw David fighting with a fellow outside Moe's pub. He did not know who this fellow was and would not recognise him again. He denied fighting with anyone himself or kicking or hitting anyone. He timed the incident as having occurred at approximately 10.30 p.m.

8 In the course of his statement, Leo Meenan who worked as bouncer in Harvey's pub stated that they had been asked to put out a couple of fellows who were causing trouble in the bar. He identified those persons as being "Stick" Matthews and his brother. He did not know their first names although he knew "Stick" Matthews because he worked in Courtney's pub. Mr. Meenan describes "Stick" Matthews, unprovoked, punching Anto Mackin in the face as he was being put out of the pub. He eventually put the two Matthews brothers out onto the street. He had "Stick" Matthews pinned up against the wall and had him calmed down. This Mr. Matthews then tried to get back into the pub again and he pushed him and his brother out onto the street. He was shouting abuse at him and threatening to get the IRA after them. He was standing outside Moe's pub which was directly across the road from him.

9 After a couple of minutes, Mr. Meenan alleges that he looked across to see where the two Matthews brothers were. He states that he could see the two men standing over a fellow in the middle of the road. This man was kneeling on the ground. He then saw "Stick" Matthews kicking this man in the head. He had no chance to protect himself after getting the kick and he collapsed onto the ground. Mr. Meenan states that it looked to him like a totally unprovoked attack. He describes the doorman from Moe's, Raymond Coburn, going over to help the man on the ground. When he was picked up he immediately recognised him as Andrew McAfee, who was totally dazed and his left eye was badly swollen.

10 Raymond Coburn worked in Moe's public house as doorman. At approximately 11 p.m. he alleges that he saw doormen from Harvey's pub putting a couple of fellows out of their pub. A row started on the street with those fellows and a few other persons. He recognised one of the lads who were put out as Ciaran Matthews. He worked in Courtney's pub as a barman. His brother was with him. He could see Andrew McAfee standing against the front window of Harvey's pub. He went over to where the row was taking place and tried to protect the fellow that had been kicked on the ground. The two Matthews brothers were allegedly kicking the man on the ground. He did not know who he was. Mr. Coburn states that when Andrew McAfee went over to help the man on the ground the two Matthews brothers and a third man turned on him and punched him to the ground. He states he could clearly see Ciaran Matthews and his brother kicking Andrew McAfee in the head while he was on the ground, at a time when he was totally defenceless. He states that Mr. McAfee did not hit anyone before he was attacked and did not get a chance to defend himself.

11 Mr. Coburn says he and another doorman, Sean Jordan, went over to help the victim because allegedly he was being given an "awful kicking". When they ran over the assailants scattered. He says they brought the victim of the assault to the side alley at Harvey's pub. Mr. Coburn states that he pointed out the two Matthews to members of the Gardaí when they arrived at the scene. Mr. McAfee's left eye was badly cut and he was totally dazed. Mr. Coburn added at the end of his statement that the fight allegedly happened in the middle of the street, just a little down from the pub.

12 In the course of his statement in the book of evidence, Garda McHugh points out that Raymond Coburn had been mistaken in naming but not identifying one of the suspects. The person that he identified to him as the alleged assailant was not Ciaran Matthews but David Matthews.

13 A third person stated to have been involved in the incident, Sean Jordan, declined to make a statement.

14 Notice to cross-examine was served on Mr. Peter McHugh, now no longer a member of An Garda Síochána. In evidence he described speaking to Mr. Coburn and Mr. Meenan on the evening of the incident but did not note down what they said. He arrested the applicant, David Matthews, and brought him to Dundalk garda station by way of a squad car. The witness accepted that the applicant, David Matthews, was detained under s. 4 and that from that time onwards a full garda investigation was in progress commencing as and from 17^th June, 2002. Some days after the incident he went on leave. He was aware that there may have been CCTV coverage; however, he did not obtain any of this material at that time. He testified that his reason was he was unsure whether or not the victim wished to make a complaint. By affidavit sworn in the proceedings he said that shortly after the assault he spoke with Mr. McAfee at the hospital in Dundalk where he had been brought for treatment. At that point, while Mr. McAfee described the attack to him, he was unsure if he wished to make a formal complaint. Mr. McHugh gave him his business card. The following day he visited him again but he was still unsure if he wished to make a complaint. Peter McHugh deposed that on at least five occasions during the following two months he made contact with Mr. McAfee but on all occasions he was unsure if he wished to make a complaint. He finally made a complaint on 24^th August, 2002. Within a few days of receiving this complaint but two months after the incident, Mr. McHugh visited the two licensed premises, 'Moe's' and 'Harvey's' to ascertain if there was any video footage available in relation to the assault.

15 He says he discovered there was no video footage because the incident had occurred in the middle of the street and this area was not covered by the video camera attached to either of the licensed premises in question. He did not say whether any video evidence had become unavailable or been lost in the two months. He states that the camera attached to Harvey's premises covered the area surrounding the door to the premises but did not extend to the middle of the street where the assault occurred. The...