J.S. v DPP and Anor

JurisdictionIreland
JudgeMr. Justice Mahon
Judgment Date30 March 2017
Neutral Citation[2017] IECA 105
Docket NumberNeutral Citation Number: [2017] IECA 105 RECORD NO. 397/2016
CourtCourt of Appeal (Ireland)
Date30 March 2017

[2017] IECA 105

THE COURT OF APPEAL

(CIVIL)

Mahon J.

Birmingham J.

Mahon J.

Edwards J.

Neutral Citation Number: [2017] IECA 105

RECORD NO. 397/2016

BETWEEN/
J. S.
APPELLANT
- AND -
THE DIRECTOR OF PUBLIC PROSECUTIONS

AND

JUDGE AINGEAL NI CHONDUIN
RESPONDENTS

Preliminary ruling – Sexual assault – Unfair trial – Appellant seeking to prohibit trial – Whether the trial could proceed on the basis that there was a real and substantial risk of an unfair trial in consequence of the deletion of video evidence

Facts: The appellant was charged with sexually assaulting the complainant at an apartment block in Dublin 17 on the 6th January 2013 contrary to s. 2 of the Criminal Law (Rape) Amendment Act 1990. The prosecution was listed in the Dublin District Court before the second respondent, Judge Ni Chonduin, on the 17th December 2014 for a preliminary ruling as to whether the trial could proceed on the basis that there was a real and substantial risk of an unfair trial in consequence of the deletion of video evidence. The second respondent rejected the appellant’s application to prohibit the trial, and she directed that it proceed before another judge on a later date. On the 10th January 2015 Noonan J granted the appellant leave to apply for judicial review for an Order of Prohibition against the first respondent, the DPP, taking any further steps in the prosecution of the appellant for the alleged offence. In his judgment of the 5th February 2016 McDermott J refused to grant the appellant the relief sought, or any relief, and on the 24th February 2016 he granted both respondents their costs against the appellant. The appellant appealed to the Court of Appeal against the entirety of the High Court decision save to the extent that the trial judge held that the issue relating to the lost evidence in the case was a matter that could be determined by way of judicial review.

Held by the Court that the deleted video footage could only have been of peripheral relevance to the prosecution of the appellant. Citing Evieston v DPP [2002] 3 IR 260, the Court held that the circumstances in which the video footage came to be deleted did not indicate mala fides, and there was no reason why Gda. Healy ought to have insisted on the video footage remaining intact. The Court held that the evidence as to whether or not a sexual assault took place is dependent upon the oral evidence to be given by the complainant and, should he so elect, the appellant also.

The Court held that the appeal should be dismissed.

Appeal dismissed.

JUDGMENT of Mr. Justice Mahon delivered on the 30th day of March 2017
1

The appellant was charged with sexually assaulting Mr. A. at an apartment block in Dublin 17 on the 6th January 2013 contrary to s. 2 of the Criminal Law (Rape) Amendment Act 1990, as amended by s. 37 of the Sex Offenders Act 2001.

2

The prosecution was listed in the Dublin District Court before the second named respondent on the 17th December 2014 for a preliminary ruling as to whether the trial could proceed on the basis that there was a real and substantial risk of an unfair trial in consequence of the deletion of video evidence in the circumstances described below. The second named respondent rejected the appellant's application to prohibit the trial, and she directed that it proceed before another judge on a later date.

3

Unfortunately neither a transcript of the proceedings in the District Court, or any note of the second named respondent's reasons for her decision are available. It was apparently the case that the appellant fully participated in the District Court hearing and no issue was raised as to the second respondent's jurisdiction to hear and determine the matter to the extent that she did.

4

On the 10th January 2015 Noonan J. granted the appellant leave to apply for judicial review for an Order of Prohibition against the first named respondent taking any further steps in the prosecution of the appellant for the alleged offence. In his judgment of the 5th February 2016 McDermott J. refused to grant the appellant the relief sought, or any relief, and on the 24th February 2016 he granted both respondents their costs against the appellant. The appellant has appealed the entire of the High Court decision save to the extent that the learned trial judge held that the issue relating to the lost evidence in the case was a matter that could be determined by way of judicial review. There is no cross appeal.

5

Early on the morning of the 6th January 2013, the complainant arrived back to his apartment block having returned from work. He parked his car in the underground car park and made his way to the elevator. On arrival at the elevator entrance he noticed the appellant standing there, apparently waiting for the lift. The complainant says that he knew the appellant only to see as a fellow resident of the apartment complex, but had never previously spoken to him. The complainant went on to describe that as both men waited for the arrival of the elevator the appellant said to him ‘Is it true what they say, guys with big cars have big cocks’. He alleged that the appellant then grabbed and squeezed his crotch until he, the complainant, forcefully pulled his hand away. The complainant then pushed the appellant away from him before walking away and using the stairs rather than the lift in order to avoid further contact with him. Further the complainant maintained that when he reached his own apartment floor the appellant was waiting in the corridor. In the corridor, the complainant, who was concerned that he had once again run into the appellant, took his photograph with his mobile phone. The complainant then left the corridor and walked back down the stairs. Shortly afterwards he came back up the lift but was again confronted with the appellant when the lift door opened. He decided to call 999. At about the same time, the appellant video recorded the complainant on his telephone. This video recording was later seen by Gda. Healy (who arrived in response to the 999 call), and it was his recollection that the video footage showed the complainant walking down the apartment corridor being filmed from behind, and nothing else. None of the video footage directly related to the earlier incident at the elevator door, and which is the subject of the assault charge.

6

Gda. Healy said he spoke to both men. He said that following caution, the appellant advised him that:-

‘…the events complained of did happen and he was drunk and only messing and stated ‘it was only a bit of fun’.’

7

Gda. Healy viewed the video footage and the photograph. In his presence the appellant deleted the footage from his mobile phone and the complainant deleted the photograph from his mobile phone. Gda. Healy recorded in his notebook the deletion of the video footage. The appellant signed an acknowledgment that he had deleted all the video footage from his phone voluntarily, and had not been forced to do so by the gardaí. He said he did so on the understanding that a complaint would not be pursued by the appellant. Gda. Healy's notebook also recorded the complainant as stating:-

‘I do not wish to make an official complaint at this time to gardaí.’

This notebook was signed by the appellant, complainant and Gda. Healy.

8

For his part, the appellant accepts that while standing at the elevator door he had made a remark to the complainant largely similar in content to that alleged by the appellant. However, he denied grabbing the complainant's crotch but acknowledged that he had flicked his right hand towards the complainant's crotch and ‘connected’ with him, describing it as ‘only a tap’. He said he had been drinking and maintained that what he had said and done was only intended as a joke and he did not consider himself to have committed a sexual assault. He said he later video recorded the complainant in the corridor because he was concerned that the complainant might knock on the door of an old lady's apartment which he had falsely pretended to the complainant was his...

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