The Director of Public Prosecutions v Richard Walsh

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Edwards
• Judgment Date: 09 October 2024
• Neutral Citation: [2024] IECA 325
• Docket Number: Appeal No: 49/2024

The People (At the Suit of the Director of Public Prosecutions)

Respondent

and

Richard Walsh

Appellant

[2024] IECA 325

Edwards J.

McCarthy J.

Kennedy J.

Appeal No: 49/2024

THE COURT OF APPEAL

Conviction – Assault causing harm – Admissibility of evidence – Appellant appealing against conviction – Whether phone footage evidence was admissible

Facts: The appellant, Mr Walsh, on 18 April 2023, was convicted by a jury in the Circuit Criminal Court, sitting in Waterford, of one count of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997. He was sentenced on 31 January 2024 to 2 ½ years’ imprisonment with the final 12 months thereof suspended on conditions. By Notice of Appeal dated 21 February 2024, he appealed to the Court of Appeal against his conviction. His appeal centred on two issues: the correctness or otherwise of the trial judge’s charge to the jury on the applicable test for self-defence (ground no. 1, inclusive of the amendment the appellant sought to have made on foot of the Notice of Motion dated 23 May 2024); and the admissibility of phone footage evidence, with particular concerns expressed regarding the provenance and integrity of said footage, the failure on the part of the prosecution to disclose the person who captured said footage, and certain failures in the investigation of the evidence with respect to the gathering of evidence in connection with said footage (ground no. 2).

Held by the Court that the trial judge’s approach to the admissibility issue was impeccable and entirely correct. The Court was satisfied that the recording which the prosecution were seeking to rely upon was real evidence and not hearsay. The Court held that it was necessary to establish its authenticity and provenance; however, in that regard it was not necessary in the circumstances of the case to have evidence from the person who had, in fact, caused the mobile phone to record (i.e., the complainant’s underage relative); it was sufficient that there was evidence that that person had accompanied the complainant directly from the incident to the Garda station; that the Garda had viewed the original recording on the underage relative’s phone; and that in the Garda’s presence that recording was then transmitted to the complainant’s phone, from which it was then forwarded to the Garda concerned. The Court considered that the trial judge had sufficient evidence before him to enable him to be satisfied as to the provenance and authenticity of the recording at least for the purposes of determining its admissibility. The Court dismissed ground no. 2 in all respects. The Court was satisfied that the trial judge’s charge on self-defence was entirely adequate and sufficient in the circumstances of the case, having regard to evidence before the jury, the issues raised by it, and the contentions of the parties. The Court did not consider that the trial judge’s remarks were properly to be interpreted as suggesting that there was a second limb to the self-defence test that was wholly objective. It was clear to the Court from reading the entirety of his remarks on self-defence that he was saying nothing more than that the test was subjective but with an objective element to be applied in the assessment of genuineness or otherwise of the accused’s asserted subjective belief that he used no more force than he considered necessary to counter the threat as he perceived it, and that the jury would have understood that. The Court rejected ground no. 1.

The Court held that the appellant’s appeal against his conviction should be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered by Mr. Justice Edwards on the 9th of October 2024.

1 On the 18th of April 2023, Mr. Richard Walsh (i.e., “the appellant”) was convicted by a jury in the Circuit Criminal Court, sitting in Waterford, of one count of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997 (i.e., “the Act of 1997”). Following his conviction, the appellant was subsequently sentenced on the 31st of January 2024 to 2 ¹/₂ years' imprisonment with the final 12 months thereof suspended on conditions.

2 By Notice of Appeal dated the 21st of February 2024, Mr. Walsh appeals against his said conviction. In support of his appeal, he has advanced the following grounds which are now outlined below:

• “1. Having regard to all the circumstances, the trial was unsatisfactory and the verdict is unsafe.

• 2. The learned trial judge erred in law and in fact, or in a mixed question of law and fact as follows:

  • (a) failed to accede to the application of the appellant to deem phone video footage inadmissible where:-

    • i) the provenance of the footage/recording was not proven, as the person who recorded and retained the video did not give evidence of that fact and was not available for cross-examination;

    • ii) the prosecution failed to account for the history and integrity of the footage/recording until its production in court, and in particular failed to prove or address whether the video had been edited, either by excising material or otherwise changing or interfering with the content;

    • iii) the prosecution failed or refused to identify the person who made the recording / recorded the phone footage and provided no / no reasonable excuse as to why she was not identified;

    • iv) failed to seize the phone during the course of the investigation;

    • v) failed to make the phone available for examination;

    • vi) determined that the probative value of the phone footage outweighed the prejudice to the appellant, despite the absence of evidence as to the integrity of the video;

  • (b) Failed to warn the jury in the charge of the danger that the recording / phone footage may have been interfered with;

  • (c) failed to direct the jury as to the weight that should be attributed to such a recording where the provenance and integrity of the recording had not been proven and the phone upon which the recording was made was not available for examination”.

3 By Notice of Motion dated the 23rd of May 2024 and grounded upon the sworn affidavit of a Mr. David Burke, solicitor, the appellant seeks to amend his first ground of appeal such that it complains:

“Having regard to all the circumstances, the trial was unsatisfactory and the verdict is unsafe, including in particular, having regard to the fact that the learned trial Judge misdirected the jury in the charge as to the test to be applied by the jury in considering the defence of self-defence”. (Underlining indicative of the amendment sought).

4 In essence therefore, Mr. Walsh's appeal centres on two issues:

• I. The correctness or otherwise of the trial judge's charge to the jury on the applicable test for self-defence (ground no. 1, inclusive of the amendment the appellant seeks to have made on foot of the said Notice of Motion);

• II. The admissibility of phone footage evidence, with particular concerns expressed regarding the provenance and integrity of said footage, the failure on the part of the prosecution to disclose the person who captured said footage, and certain failures in the investigation of the evidence with respect to the gathering of evidence in connection with said footage (ground no. 2).

Factual Background

5 Before embarking on a discussion of the issues in the case and the submissions of the parties in respect thereof, it is first necessary to provide some background information to frame the context in which the present appeal is brought.

6 The facts giving rise to the case are that on the 30th of November 2020, the appellant and a Ms. Marie Power (i.e., “the complainant”) were present at Kilrush Park, Dungarvan, County Waterford (an area referred to colloquially and at trial as “the Crystal”). The appellant had been involved in an altercation with the complainant's brother, a Mr. Shane Power, and the complainant arrived sometime in the immediate aftermath of this altercation, having been called out to go there. She encountered the appellant as she was walking into the estate. The appellant was not known to the complainant personally; but she said that she knew he was a boxer and that he was in the army. She described the appellant's demeanour before the assault, which subsequently ensued, as “ very, very aggressive, because he was just after being in an altercation”. She said that he came shouting at her, saying “ There's the mouthy bitch”. She recalled that the appellant ran up to her, that he swung a bar at her and hit her in the leg and face with the implement. The complainant subsequently attended, in the company of her 17-year-old relative, at Dungarvan Garda station to report what had occurred. There she made a statement, furnished gardaí with footage of the incident taken on the relative's mobile phone, and had certain photographs of her injuries taken. In terms of the injuries sustained by the complainant, she described being “ knocked out on the ground” as a result of the assault; and she further described attending at Clonmel Hospital and was there diagnosed with a concussion. While the hospital had wished to keep her overnight, the complainant left against medical advice as she had a young child with her who could not stay in the hospital owing to Covid-19 restrictions. The complainant took further photographs of her injuries on the day after the incident, which photographs showed bruising to her eye and mouth.

7 As mentioned, the assault was captured on mobile phone footage that was taken by the 17-year-old relative of the complainant. The admissibility of the said footage, which was of some three to four seconds' length, was subject of a voir dire on the 19th of April 2023, with the defence seeking its exclusion in circumstances which will be later described in the course of this judgment. The trial judge ultimately decided on the issue of the said footage's...