J.S. v DPP and Another

CourtHigh Court
JudgeMr. Justice McDermott
Judgment Date05 February 2016
Neutral Citation[2016] IEHC 61
Docket Number[2015 No. 28 JR]
Date05 February 2016
J. S.

[2016] IEHC 61

[2015 No. 28 JR]



Crime and Sentencing – S. 37 of the Sex Offenders Act 2001 – S. 2 of the Criminal Law (Rape) (Amendment) Act 1990 – Prohibition of trial – Destruction evidence – Risk of unfair trial

The applicant sought an order of prohibition against the second named respondent from further prosecuting the applicant or an order of certiorari for quashing the decision of the first named respondent in proceeding with the prosecution of the applicant on charge of sexual assault under s. 2 of the Criminal Law (Rape) (Amendment) Act 1990 or an order of certiorari for quashing the judgment of the second named respondent that the destruction of the concerned video was not prejudicial to the fair trial of the applicant.

Mr. Justice McDermott refused to grant the desired reliefs to the applicant. The Court held that the Garda was mandated to preserve the evidence in any form irrespective of whether it was going to assist the prosecution or not. The Court observed that an order for prohibition would be granted only in exceptional cases where the lost evidence involved the destruction of the evidence which was central to the proof of the core element of the prosecution's case. The Court found that the deletion of the concerned video was not prejudicial to the fair trial of the applicant as it had no specific footage in relation to the sexual assault inflicted by the applicant upon the complainant, which was the central claim of the prosecution. The Court held that the concerned video never came into the possession of the Garda and never became part of the file of the first named respondent as the complainant initially did not make his mind to pursue the criminal proceedings against the applicant, and thus, the Garda playing the role of the arbitrator between the applicant and the complainant deemed it appropriate to delete the said video.

JUDGMENT of Mr. Justice McDermott delivered on the 5th day of February, 2016.

The applicant was granted leave to apply for judicial review on 10th January, 2015 (Noonan J.) for an order of prohibition against the second named respondent from taking any further steps against the applicant in a prosecution entitled Director of Public Prosecutions (at the suit of Garda Kieran Hubert Healy) v. J. S. on charge sheet number 14802404, or an order of certiorari quashing the decision of the Director of Public Prosecutions to proceed with the prosecution of the applicant on a charge of sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act 1990 as amended by section 37 of the Sex Offenders Act 2001. In the alternative the applicant seeks an order of certiorari quashing the judgment of the second named respondent in determining that the destruction of independent objective video evidence said to be relevant to the applicant's defence upon the said charge, was not prejudicial. The applicant also seeks an injunction prohibiting the first named respondent from further prosecuting the applicant in respect of this charge.


In the early hours of 6th January, 2013 Gardaí were called to a domestic apartment block in response to a complaint of sexual assault by one male upon another. On arrival the Gardaí met two men, the complainant and the applicant herein. The complainant alleged that having returned from work and having parked his car in an underground carpark; he approached the elevator that would take him to his apartment. He was followed by the applicant whom he recognised as a resident of the same complex but to whom he had never spoken. The applicant was standing at the entrance to the elevator as the complainant approached. The button for the elevator had been pressed. The following account of the incident, which gave rise to the charge of sexual assault, was furnished by the complainant in a statement made on the 16th January, 2013:-

'On the night in question I opened the gate to the underground carpark and as I did so a male, now known to me as (the applicant) walked through the gate at the same time. I recognised this male from living in the same apartment block but I have never spoken to him. A(s) I parked my car in the carpark, I took my bag from the rear seat and I locked the car and made my way to the elevator to gain access to my apartment block. As I opened the door for the elevator in the carpark (the applicant) was already standing there. I did not engage him in conversation. He stood with his back to me and I could see the button for the elevator was pushed so I did not need to do that. Out of the blue (the applicant) turned to me, faced me directly on and stated 'is it true what they say, guys with big cars have big cocks'. Immediately after that he reached out with his right hand and grabbed me by the crotch on the outside of my jeans, squeezing my testicles hard. I immediately froze to the spot. I was holding my bag in my right hand and had my left hand in my jacket pocket. I was in shock and disbelief. It must have been obvious by the look of shock on my face because (the applicant) refused to let go. I had to physically remove his hand from my crotch with both my hands. As I done that, I pushed (the applicant) away from me in case he went to attempt it again. I wanted to get away from this man so I immediately turned and made my way up the stairs to my apartment floor. I took my time walking up as I was replaying what had just happened in my mind and what I should do next. As I got to my floor (the applicant) was waiting for me ....'


Garda Healy who had arrived at the scene with his colleague in response to a 999 call made by the complainant gave his account of meeting the two men that night in his affidavit sworn the 4th October, 2015. Garda Healy states that the complainant outlined the circumstances of the alleged assault:

'I say that the complainant told me that he had just returned home from work and had parked his car in the underground carpark and went into the elevator to go to his apartment. He said that the applicant followed him into the elevator, made a sexually suggestive comment and subjected him to a sexual assault. He said that the applicant was intoxicated and that he grabbed the complainant by the testicles. The complainant claimed that he was in shock and that he did not react to this. He also stated that he did not give this male permission to assault him and did not know this male nor had they ever had any contact with each other previously.'

Garda Healy also states that the complainant indicated that he did not wish to make a formal complaint about the matter. This was noted by Garda Healy in his notebook which the complainant signed.


Garda Healy states that he then spoke to the applicant who stated, following the administration of the usual caution to him:-

'... that the events complained of did happen and he was drunk and only messing and stated 'it was only a bit of fun'.'

Garda Healy then advised the applicant that his behaviour was unacceptable and the applicant then admitted that 'it was wrong and said he was sorry'. Garda Healy noted that the applicant had recorded some footage of the complainant after the alleged offence had taken place and that the complainant had taken a photograph of the applicant. He viewed the footage and the photograph. In his presence the applicant deleted the footage from his mobile phone and the complainant deleted the photograph. An entry was made in his notebook regarding the deletion of the footage. The applicant signed an acknowledgment that he had deleted all video footage of the injured party from his iPhone voluntarily and had not been forced to do so by the Gardaí. However, it should be noted that firstly, the complainant was a member of An Garda Síochána who had made this fact known to the applicant prior to, or at the time of telephoning for assistance, and secondly, the applicant claimed that he deleted the footage on the understanding that a complaint would not be pursued by the applicant. Thirdly, it is of importance that the applicant and the respondents accept that the footage does not relate to the occurrence of the alleged incident but only events immediately after, which are in dispute.


Although the complainant initially declined to pursue the matter, he changed his mind the following day which led to the making of his statement on the 16th January. On the 25th March, 2013 the applicant was interviewed under caution and amongst other things accepted that he had an encounter with the complainant. He acknowledged that he had entered the gate to the underground carpark at or about the same time. He was waiting for the elevator door to open when the complainant carrying a sports bag stood beside him. He accepted that he engaged the complainant in conversation. He said:-

'I noticed he had a sporty car and I can't remember my exact words but I think they were something like 'I hear people with big cars have small dicks'. It was something like that. I meant this as a joke and a laugh. As I said this we were still outside the lift and I flicked my right hand towards his genital area and connected with this man. It was only a tap and I had no intention to hurt or cause pain to him. ... He looked a bit shocked but initially said nothing but he then produced his identification and said he was a Garda and said to me I can't do that. At this point the lift had opened'.

He said that he then apologised and said he was sorry. The complainant and the applicant differ in their accounts of the period between the alleged assault and the arrival of the investigating Gardaí.

Immediate Aftermath

Following the alleged assault the complainant states that he turned and made his way up the stairs to his apartment floor. He gave the...

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