Sirbu v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 09 November 2015
• Neutral Citation: [2015] IECA 238
• Judgment citation (vLex): [2015] 11 JIC 0901
• Court: Court of Appeal (Ireland)
• Date: 09 November 2015

[2015] IECA 238

THE COURT OF APPEAL

Kelly J.

Irvine J.

Hogan J.

Appeal No. 23/2015

Sirbu v DPP

BETWEEN/

VALERIU SIRBU

APPLICANT/RESPONDENT

- AND -

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT/APPELLANT

Assault – Self-defence – Missing evidence – Applicant seeking an order of prohibition restraining his prosecution on indictment – Whether the unavailability of missing evidence would render the trial of the applicant unfair

Facts: The applicant/respondent, Mr Sirbu, alleged that at a workplace Christmas party held at a licenced premises on 14th December 2012, he was challenged by the injured party to go outside whereupon he claimed that he was set upon and attacked by the colleague. He acknowledged that in the ensuing altercation he struck the colleague twice and kicked him in the head, but he said that he did this in self-defence. The colleague was himself seriously injured as a result of the assault and was subsequently hospitalised. The colleague had, however, no memory of the altercation and there were no other witnesses to the attack. The incident was captured by the CCTV positioned outside the public house. Two investigating members of An Garda Siochána, Garda Geraghty and Garda McFadden, called to the licenced premises on the following day and viewed the footage. The footage was also viewed at the time by a Mr Rice, the finance director of the company which employed both the applicant and the injured party and by Mr McNulty, the owner of the licensed premises. The evidence established that the investigating Gardaí made every reasonable measure to secure the footage, however it was later confirmed on 27th December 2012 by a security expert retained by Garda Geraghty that the relevant footage had been overridden by subsequent coverage. The applicant faced a single charge of assault under s. 3 of the Non-Fatal Offences against the Person Act 1997 before the Circuit Court. The prosecution case rested entirely on the statements of those who happened to see the missing footage. The applicant contended that this resulted in a rank unfairness, since the prosecution would have available witnesses whose testimony would be based exclusively on video footage which was denied to him. Baker J, on 20th March 2015, granted the applicant an order of prohibition restraining his prosecution on indictment ([2015] IEHC 204). The respondent/appellant, the DPP, appealed from that judgment to the Court of Appeal.

Held by Hogan J that, distinguishing Stirling v Collins [2014] IESC 13, the failure to secure the missing evidence was most definitely not the fault of the Gardaí and, moreover, the circumstances in which the missing tape came to be irreversibly overridden had been fully explained. Hogan J also noted that the applicant freely accepted that he was the person seen on the CCTV footage in the altercation with the injured party so that, critically, identification was not an issue; his case was rather one of self-defence. Hogan J held that, in contrast to the position in Stirling, the applicant”s ability to advance the self-defence case was not entirely dependent on having access to the CCTV footage. Hogan J noted that the footage was seen by at least three persons, each of whom had made slightly different statements as to both the quality of the footage and the sequence of the events which they witnessed when viewing the footage; the applicant was thus aware in advance of what these witnesses said they saw on the video. Hogan J recognised that the missing evidence had the potential to create an unfairness to the applicant, however, he was not persuaded that the missing evidence meant that the trial would inevitably be unfair or that such potential unfairness could not be satisfactorily addressed by means of appropriate judicial rulings.

Hogan J held that the appeal should be allowed.

Appeal allowed.

1 1. This is an appeal from the judgment of Baker J. delivered on 20 ^th March 2015 whereby she granted the applicant, Mr. Sirbu, an order of prohibition restraining his prosecution on indictment: see Sirbu v. Director of Public Prosecutions [2015] IEHC 204. The fundamental question is whether the unavailability of missing closed-circuit television ("CCTV") evidence would render the trial of the applicant unfair.

2 2. Because this appeal presents slightly different factual issues from those not uncommonly found in "missing evidence" cases of this type, it is important to summarise the factual background to this appeal.

3 3. The applicant is currently facing a single charge of assault under s. 3 of the Non-Fatal Offences against the Person Act 1997 before the Circuit Court. The charge itself arises from an incident which is said to have taken place at a workplace Christmas party on 14th December 2012 which was held at a particular licensed premises. The applicant maintains that he was challenged by the injured party to go outside whereupon he says that he was set upon and attacked by the colleague. He acknowledges that in the ensuing altercation that he struck the colleague twice and kicked him in the head, but he says that he did this in self defence. The colleague was himself seriously injured as a result of the assault and was subsequently hospitalised. The colleague has, however, no memory of this altercation and there were no other witnesses to the attack.

4 4. It is accepted, however, that the incident was captured by the CCTV positioned outside the public house. Two investigating members of An Garda Siochána, Garda Ciara Geraghty and Garda Eamonn McFadden, called to the licenced premises on the following day and viewed the footage. The footage was also viewed at the time by a Mr. Tony Rice, the finance director of the company which employed both the applicant and the injured party and by Mr. Martin McNulty, the owner of the licensed premises.

5 5. In his witness statement Mr. McNulty said that the CCTV footage showed "two silhouettes", but that the quality of the footage was not "great." He added:

"I remember you would see one man strike the other. That man then fell on the ground. I cannot remember the details of the assault but I did see the man kick the [other] man on the ground and then stood over him."

6 6. In his statement Mr. Rice stated that he was "90% certain that the man who assaulted [the injured party] was Valerm Sirbu."

7 7. The evidence clearly establishes that the investigating Gardaí made every reasonable measure to secure the footage. Garda Geraghty has stated that she was assured that there was no immediate risk that the CCTV footage would be overridden. Several efforts were made by the Gardai to contact the installer in the period between the 20 ^th December 2012 and 24 ^th December 2012 to ensure that the relevant footage could be downloaded, but that these efforts were unavailing. Following further efforts to secure the footage it was later confirmed on 27 ^th December 2012 by a security expert retained by Garda Geraghty that the relevant footage had been overridden by subsequent coverage.

8 8. All of this has meant that...