Court of Appeal dismisses appeal against assault conviction, upholding trial judge's self-defence charge.

THE COURT OF APPEAL Neutral Citation: [2024] IECA 325 Appeal No: 49/2024

Edwards J. McCarthy J. Kennedy J.

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT V

RICHARD WALSH APPELLANT

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 ½ 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 admissibility, ruling in favour of the footage being admitted into evidence, and it was played to the jury at trial in the course of the complainant’s evidence. Further detail regarding this mobile phone footage, its provenance, and arguments for and against its admissibility at trial, will be expanded upon shortly.

8. The defence advanced on the appellant’s behalf was one of self-defence. The evidence adduced by the defence to support this will be later described in the course of the judgment. For the purposes of this introductory part, it suffices to say that at trial a Mr.

TJ Clifford gave evidence on behalf of the appellant, wherein he stated that he was present at the scene at the time of the incident and had witnessed the appellant being struck with an iron bar thrown by the complainant. It is in this context that it was said that the appellant had walked back towards the complainant and had pushed her to the ground.

Issue No. II - Admissibility of Mobile Phone Footage

9. For the purposes of the present judgment, it is convenient to deal with the two issues in the appeal in reverse order. Issue No. II relates to a complaint that the trial judge erred in admitting into evidence mobile phone footage of the incident. Complaint is made that the provenance and integrity of the footage fell short of what was required, that the prosecution had failed to disclose the identity of the person who captured the footage, and that investigating gardaí had failed to meet their obligations to seek out and preserve evidence relating to the mobile phone footage.

Evidence of the complainant

10. In the course of the assault which occurred on the 30th of November 2023, the complainant’s then 17-year-old relative captured a portion of the incident on her mobile phone. The said footage depicted the appellant hitting the complainant. When the complainant and her relative attended at Dungarvan Garda station in the immediate aftermath of the assault, the relative sent the footage to the complainant’s phone. The complainant then sent it to an email address provided by the gardaí. This transmission of the footage from the mobile phone, on which it was taken, to the Garda email address, via the complainant’s phone, occurred in the presence of the gardaí. The complainant stated in the voir dire on the 19th of April 2023 that she did nothing to the footage to alter it in any way.

11. In relation to the phone on which the footage was originally captured, in crossexamination in the course of the voir dire the complainant stated that this phone was no longer available on account of it being broken. She stated that the footage was the full footage that was taken, saying that the girl who is heard screaming her (i.e., the complainant’s) name in the footage is her relative who captured it. Counsel for the defence put to the witness that the trial court could not be sure that the phone footage was not cropped in any way, shape or form; the witness responded by saying that that was counsel’s opinion and that she went straight to the gardaí with the phone. She went on to state that she was not technically minded, and that she would not know how to work an iPhone, “never mind anything else”. She said that the relative who took the footage was with her when she went to the gardaí to provide the footage to them. She said, “I told the guards that it was on my relative’s phone and that I didn’t want her involved. So, I got it sent to my phone in front of the guards and then I emailed it to the guard’s email that I was given”. The complainant would explain that while her relative was present with her in the Garda station with the phone on which the footage was taken in her possession, she did not want her involved “because she was underage and her parents would’ve given out to her for being in Kilrush in the first place”. She said that the gardaí knew that the original footage was on her relative’s phone. The complainant then stated that she was unsure whether the relative’s phone was in the Garda station at the time, she then went on to repeat that the footage was sent from that phone to her own phone “in front of the guards”. The complainant said that she did not want her relative involved because her father would give out to her for being there in the first place, and also because of a concern that the relative’s phone would be seized by gardaí.

Evidence of Garda Ní Dheasuna

12. A Garda Ní Dheasuna also gave evidence in the course of the voir dire on the 19th of April 2023. She confirmed that she was on duty at Dungarvan Garda station on the 30th of November 2020, and she recalled that the complainant attended there at approximately 16:30 on that date. She stated that the complainant arrived in “a distressed state” and was upset, saying that she was “after being assaulted”. She was with a relative and the pair were brought to a room where a Detective Garda Joe Wise (otherwise “D/Garda Wise”) accompanied Garda Ní Dheasuna in speaking with her. The witness recalled the complainant and her relative showing gardaí the mobile phone footage, and the pair explained to her what had happened. Garda Ní Dheasuna stated that she was aware at the time that the relative, who was female, was underage, and she stated that she knew the female in question. The Garda witness further stated that she knew that the relative was with the complainant at the time of the event and that she was on her own. She informed the complainant and her relative that, having been shown the footage, she would need to take the mobile phone; however, she was told that they did not want the minor to be involved in the incident. Garda Ní Dheasuna continued:

“So, I was only junior at the time, I was only four months in the job; in hindsight, I probably should have seized it because it was there, but I didn’t know it wouldn’t be suffice (sic) to have that, so I witnessed them send the video to Marie Power’s phone unaltered, and it was then sent on to my email, my own personal -- or my own garda email at that time by Marie Power”.

13. The Garda witness would later go on to say:

“[...] and whence I should have seized this phone under s. 7 of the Criminal Justice Act 2006 – if it was now, I would have, but at the time, that I thought that would suffice and that’s where I seen – I was satisfied enough that I’d seen the video being sent and then straight to my email”.

14. Garda Ní Dheasuna confirmed to the trial court in the course of the voir dire that the footage that was sent to this email address was the same footage which was before the trial court. She further confirmed that she had witnessed, first-hand, the minor, who had indicated that she did not wish to be involved, transfer the footage to the complainant’s phone, who then in turn transferred it immediately to the Garda email address.

15. In cross-examination, Garda Ní Dheasuna confirmed that while training at Templemore she would have undergone extensive training, and that she would have been informed about the duty of gardaí to seek out and preserve evidence. She agreed that as an investigating member she has a unique investigative role, and that this role entails a duty to seek out and preserve all evidence whether it assists the prosecution or the defence.

The exchange continued:

“Q. And that certainly in respect of real evidence, which is what we will consider phone footage to be, certain steps should be taken and we should be able to prove the provenance or to make sure that that phone footage is true and accurate, and that we have all of the evidence in respect of that footage before us in the court; isn’t that correct?

A. Yes, Judge. I was on probation at the time. I probably should have got more guidance on the fact, but I thought this would suffice at the time as I had seen it being passed from one to the other and then onto my email and I was satisfied it had not been hindered with at the time”.

16. Counsel for the defence then questioned Garda Ní Dheasuna regarding the possibility that the footage may have been the subject of editing or tampering. The following exchange ensued:

“Q. And I suppose I have to put it to you, Garda Ní Dheasuna, that you could have been satisfied that it wasn’t hindered with in front of you there and then in the Garda Station; isn’t that correct?

A. Yes, Judge, but I was satisfied enough that they’d come straight from the incident and it was just after taking place.

Q. But certainly you didn’t view or witness or supervise the phone from the moment when this phone footage was taken up until the time that it was sent to the complainant and then onto your email address; isn’t that correct?

A. No, Judge, that wouldn’t have been possible.

Q. So, I think it’s fair to say that it is possible that the phone footage could have been cropped or tampered with; isn’t that fair to say?

A. I don’t think so myself.

Q. But you didn’t supervise it from the time when the phone footage was taken, so --?

A. I couldn’t have. I was not at the scene, Judge, I was in the station.

Q. Yes, so it could have been, and you can’t say whether or not for definite, one way or another?

A. I cannot say”.

17. The Garda witness then agreed that the footage was a short clip, and she confirmed that it depicted other persons at the scene. She confirmed that the appellant’s version of events which he gave under caution in the course of an interview following his attendance by arrangement at Dungarvan Garda station was that the complainant had hit him with an iron bar. Garda Ní Dheasuna subsequently went back to the complainant. She could not recall whether she had asked the complainant whether or not there was any other phone footage, stating that she could not recall due to a lapse of some three years since these events. Garda Ní Dheasuna confirmed that she was aware that the person who took the footage was a relative of the complainant. She said that she did not revert back to the relative in question, after the appellant had tendered his version of events, to ask to see her phone, or to seize her phone to see if there was further footage which could corroborate the appellant’s account of having been struck by the complainant with an iron bar. The Garda witness was satisfied that what the appellant had claimed to have occurred did not in fact happen, as she had asked the complainant after caution. Counsel put to the witness that while she was satisfied that the events, as claimed by the appellant, had not happened, she did not take any steps to satisfy herself of this. The witness replied “that’s fair”.

18. Garda Ní Dheasuna confirmed that she had not disclosed the name of the relative in question, who is now an adult. She further confirmed that the whereabouts of the original phone footage is unknown, and she stated that it was fair to say that the defence could not take any steps to make inquiries because the identity of the original captor of the footage was unknown. Garda Ní Dheasuna stated that, regardless of the attitudes of the complainant and the relative, “[a]bsolutely, [she] should have seized it, 100%”; and she said that she would have done it now. In relation to the availability of the phone for examination, Garda Ní Dheasuna stated that the phone was broken. She also confirmed that the relative who took the footage on the phone was not available as a witness in the trial.

19. In re-examination, Garda Ní Dheasuna was asked by prosecuting counsel what, if any, other inquiries were made as to other potential persons who may have witnessed the incident, or inquiries from other people who may have been present. Garda Ní Dheasuna stated that that evening gardaí went to a house where they believed the appellant was, and they were there told by males present at this property to “fuck off” and that “they didn’t want anything to do with it”. Prosecuting counsel referred to the memorandum of interview with the appellant wherein the appellant had stated that the complainant’s allegation was “all lies” and that he had “loads of witnesses” but was not willing to name them. Garda Ní Dheasuna confirmed that she did inquire from the appellant about potential witnesses and in addition to the “no comment” account which he gave at interview, he continued to decline to name witnesses. Garda Ní Dheasuna stated that she informed the appellant that “if he had anyone that wanted to speak, as I had approached these males and they had said ‘No’ previously, I told him that if he wanted them to come in and make a statement, that they were entitled to and that they should do so as soon as possible”.

Submissions on voir dire

20. Counsel for the prosecution submitted that the phone footage should be admitted into evidence. He advanced several reasons to support this. He argued that the footage was real evidence which depicted the assault by the appellant of the complainant (albeit that it may have only depicted a portion of the overall incident), and in this regard was highly relevant evidence. He contended that if the defence wanted to canvass the possibility that there may have been further footage which was cropped or clipped, or, given that the phone was not seized, that the trial court could not be absolutely certain that there was not a further portion to the video that had been cropped, that they were not precluded from doing so and that such matters could be raised in cross-examination before the jury.

He submitted that the taking of the footage was temporally proximate to its being furnished to gardaí; that there was an approximate half hour lapse between the taking of the footage by the complainant’s relative and the transfer by this relative of the footage to the complainant’s phone, and then by the complainant to the Garda email address; and that this transfer occurred in the presence of the gardaí. Addressing the issue of shortcomings in Garda Ní Dheasuna’s approach to the issue of seizing the relative’s mobile phone, counsel for the prosecution submitted that while the Garda accepted in hindsight that she should have seized the phone, the reality was that she could not have compelled the relative to give a witness statement if she had refused to do so. Counsel characterised the Garda’s approach to this issue as “very practical”, involving the supervising of the transfer and the receipt of the video, and subsequent immediate furnishing of it to the gardaí. He stated that the reality was that Garda Ní Dheasuna acted on a rational and reasonable basis, and exercised reasonable judgment in the light of the circumstances that the person who took the footage did not wish to make a formal statement, and she was clearly satisfied that only a short temporal period had elapsed between the time when the footage was taken, and when it was transferred, in her presence, from the relative’s mobile phone ultimately to her Garda email, via the complainant’s phone.

21. Counsel for the prosecution directed the trial court’s attention to the judgment of Birmingham J. (as he then was) for the Court of Appeal in People (DPP) v. Marcus Kirwan [2015] IECA 228, specifically paras. 37 and 38 thereof, in support of his argument that the phone footage in question was real evidence, and that it was not necessary, in terms of establishing the provenance of the footage and in the circumstances of the case, to provide some independent evidence or awareness of how the footage, in the form in which it was sought to be admitted, came to exist.

22. Counsel for the prosecution noted that the footage had been played to the appellant at interview and that he had accepted that it was him who was depicted in the footage and that he had the bar in his hand. He said that the appellant had outlined the circumstances in which he came to wield the bar in his hand, and that he had claimed that he had pushed the complainant. Counsel for the prosecution submitted that the jury would have to consider the reasonableness of his actions in terms of whether he acted offensively or defensively; and further that it would be open to the defence to explore, in front of the jury, the question of whether there was further footage of the incident which was cropped. Counsel further argued that even if the jury were to give the accused the benefit of the doubt as to what he said had happened, they would get to see his conduct as a result of the alleged provocation or throwing of the bar by the complainant. This, he submitted, was a matter essentially within the jury’s province. Prosecuting counsel concluded his submission by saying that the footage was relevant and admissible, and that the issues of provenance raised were matters for cross-examination and did not go to the central issue of admissibility.

23. In reply, counsel for the defence argued that the phone footage had not been proven by the prosecution in any way, shape or form, regardless of how relevant it was. She noted that there was no evidence before the trial court from the person who actually took the phone footage; and she submitted that the question of that person’s minority at the time was neither here nor there, as was the fact that this person did not want to be involved in the investigation. Counsel emphasised that her client enjoyed the presumption of innocence, and that the gardaí have a duty per Braddish v. DPP [2001] 3 I.R. 127 to seek out and preserve all evidence. She submitted that there was no basis before the trial court for departing from this rule, and that neither the excuses provided nor the hindsight opinion of Garda Ní Dheasuna were sufficient to excuse her failure to do so.

24. Counsel for the defence then referred the trial court to commentary from “Walsh on Evidence”. Having reviewed the commentary cited, which was reproduced in the transcript of the 19th of April 2023, and having conducted its own research to ascertain the source of this material, this Court has deduced that what counsel for the defence was actually referring to was Declan McGrath’s treatise, “Evidence” (3rd edn, Round Hall 2020), in particular his commentary at paras. 12-100 and 12-101 thereof. The learned scholar wrote:

“[12-100] It has been held that photographs, tape recordings, and video evidence are admissible as items of real evidence. However, before such evidence can be admitted, it must be authenticated. In the case of photographs, this may involve oral evidence from both the person who took the photograph and the person who developed it. Where photographs have been taken using a digital camera, these may be excluded where the provenance of same, including the date on which they were taken, is not established in evidence. In the case of videos and tape recordings, the circumstances in which the recording was made must be set out, and all of those persons with access to it thereafter identified. [Counsel at this point in reading McGrath’s commentary paused to note that the name of the person who took the footage was not known] The trial judge must make some inquiry as to the history of the tapes, and their nature and condition. The trial judge has a discretion as to whether the jury can be provided with a transcript of a tape recording.

However, where a recording is of good quality and comprehensible by the tribunal of fact, it should normally be played in court rather than transcribed. [...]

[12-101] The general approach of the courts to this category of real evidence has been quite facilitative of its admission on the basis that it approximates to eyewitness testimony and, in the case of video evidence, may provide a court with the best possible evidence of the commission of an offence. As stated by Hardiman J in Dunne v DPP [[2002] 2 I.R. 307 at p. 311], video evidence “can have very dramatic effect in appropriate cases.” The traditional view was that this category of evidence was quite reliable because there was little danger of fabrication or mistake. However, in light of increasingly sophisticated digital technology capable of substantially altering photographic and other images, this assumption may no longer hold good. [...]”

25. Counsel submitted that it was neither here nor there that only a short temporal window existed between the taking of the footage and the complainant and her relative attending at the Garda station. She said that there was no evidence as to the examination of the phone; and that there was no evidence that Garda Ní Dheasuna viewed the footage on the unidentified relative’s phone. Counsel submitted that the trial court did not need to hear from expert witnesses that images or videos can be cropped within a number of seconds. She argued that there was no way the trial court could allow this evidence to be admitted where the person who took the footage remained unidentified and unavailable for cross-examination and where the phone on which the footage was taken was not seized by gardaí.

26. Counsel further sought to distinguish between mobile phone footage and CCTV footage.

She argued that mobile phone footage is capable of being tampered with to a greater extent than CCTV footage. She said that the prosecution were on notice of the appellant’s version of events 10 days after the incident took place; yet despite his engagement with the gardaí, no steps were taken by gardaí to go back to the unidentified person who took the footage to seize the phone and send it off for examination. Counsel submitted that the unidentified person had since attained her majority and that accordingly there was no reason why she was not before the trial court as a witness. Counsel emphasised that it was the prosecution’s duty to bring the unidentified person to court to prove their evidence; and that it was not the defence’s responsibility to canvass issues regarding the footage’s provenance before the jury.

27. Counsel for the prosecution in reply submitted that the defence were at a fundamental misunderstanding in terms of what is required to prove real evidence. In essence, he submitted that if there is evidence comprising footage which is very relevant and germane, and the provenance and authenticity of that footage can be established by way of circumstantial evidence tending to corroborate and support the claimed provenance and authenticity of that footage, the unavailability of the actual photographer as a witness does not absolutely preclude the admission into evidence of that footage. Counsel submitted that before deciding to exclude otherwise relevant, admissible, and probative evidence, the trial court would need to be satisfied that a point of substance had been raised which was sufficient to give rise to a serious and manifest concern that it required to be excluded in the interests of ensuing a fair trial; and further, that the trial court needed to be satisfied that issues raised in respect of the evidence’s provenance and authenticity were of such a nature that they could not safely be left to the jury to adjudicate upon. He submitted that neither threshold had been met in the immediate case; that the trial court was dealing with a very clear timeline; that the trial court had been furnished with a very clear and obvious explanation as to why the photographer had not been willing to make a statement; and that the defence had a very good idea who this individual potentially was, referring to a reference by counsel for the defence during the trial to the individual being a “cousin” of the complainant. He further noted that the gardaí observed the transfer of the footage from the original mobile phone and that the Garda had an opportunity to observe, verify and corroborate the account given by the complainant as to who took the footage. The defence’s concern regarding the footage being possibly cropped did not, absent some evidence tending to suggest that something of the sort had in fact occurred, provide a basis for the trial court to refuse to admit relevant, probative and otherwise admissible evidence. Trial judge’s ruling on admissibility

28. Having heard the submissions of counsel, the trial judge ruled on the issue of the footage’s admissibility as follows:

“In relation to the phone footage, this also, of course, is real evidence. It is highly probative, and it is highly relevant to the defence case as much as the prosecution case because, of course, it is consistent with what the prosecution allege that the accused with an iron bar assaulted the complainant. But it is also consistent with what I understand the defence case to be, one of self-defence, because it shows the incident that occurred after he had, according to his version of events, been assaulted. He answers, when asked how did he know her, he said: “I was walking out of the Crystal. One of my friends said, ‘there was someone walking after you’ and she threw a metal bar. When I say she, I mean Marie Power. The metal bar hit the back of my neck.” And then he goes on to say: “I picked up the bar and walked towards her and asked why there was any need to bring weapons and why did she throw the yoke at me. She was shouting and screaming at me and making shapes, and I pushed her with the palm of my hand into the face with my left hand. After that, I got into a car and I went away.” So, the clip shows half of what the accused alleges occurred and for that reason, it is highly probative and relative. It’s a matter for the jury to give it what weight they consider. Now, it is unfortunate that section seven of the Criminal Justice Act was not invoked. The Garda has fairly acknowledged she was a probationer, and she acknowledges that she should have and would today have seized the telephone but she, through inexperience, did not do so.

However, the test that I must place for the admissibility of evidence -- phone evidence -- is have circumstances been established whereby I can be satisfied that it can be safe to leave this to the jury in relation to its provenance? And there are a couple of points. The Garda’s evidence is that she was satisfied that the complainant and the holder of the phone came straight from the incident and that she supervised the transfer of the footage to the complaint’s phone who then emailed it on, the reason being that the holder of the phone was a minor and a very plausible explanation was given as to why there was a fear that her parents would have been cross, or her father have been cross had he realised she was involved. But perhaps the biggest point is that this footage was shown to the accused. Even before it was shown to him, he was asked what was he wearing on the day and he said he was wearing a muscle vest and he thought it was green.

And…

I beg your pardon. He had seen the footage at that stage, but that was he saying that it was a muscle vest and that appears from the still photograph, that he is wearing such a garment. And he acknowledges that he was having a dispute with another person whom he refused to name, or stated he wasn't going to name. He alleges he was hit with the bar. But when the very particular question was put to him: “Before the interview, we showed you a clip from November the 30th at the Crystal; can you tell me what you saw in the short clip of CCTV?” And he clearly answers: “I saw me walking back to Marie Power to confront her and ask her what her problem was, and she seemed aggressive, so I pushed her away with my hand.” And asked to identify himself, said: “Yes, that was me, the gentleman in the t-shirt”.

So, this isn’t something that has been sprung on the accused. This is something that was shown to the accused when he was a suspect, and he readily admitted that this piece of footage showed himself doing exactly what he is claiming to do, protect himself against somebody who, he says, threw an iron bar at him. So, it’s consistent with his version. The fact that it doesn’t have the beginning of the incident, on his version, is a matter that can be fully explored with the Garda, and with the complainant. It is a matter for the jury to give what weight they feel appropriate when it comes to it, and how the defence approach that and if they wish to suggest that portions of it are missing, well, obviously, if you turn the telephone on and start the video three minutes beforehand, then you would have an extra video. But whether it was turned on or wasn't turned on, there doesn’t seem to be any dispute that the particular four seconds that are shown represent the incident that is being complained about both from the defence point of view -- he gives a version absolutely consistent with that, I don’t know whether he hit the accused from the viewing I had of it, with the iron bar, but she says she was also pushed in the face and certainly it shows that she ends up on the ground. So, it’s up to the defence who can fully explore in the ordinary way of cross-examination whether it was clipped, and if it was, all it was, could possibly show is the entire of the incident that the defence is saying. So, I am satisfied that circumstances around the establishment of the authenticity of the piece of real evidence have been put before the Court and I'm going to allow its admission”.

Submissions on behalf of the appellant

29. While ground of appeal no. 2, as originally pleaded, included complaints regarding an alleged failure on the part of the trial judge to warn the jury in his charge of the danger of interference with the footage, and a failure to direct the jury as to the weight that should be attributed to the footage where its provenance and integrity had not been proven, and where the phone on which it was taken was not available for examination, in written submissions it was communicated to this Court that the scope of ground of appeal no. 2 had narrowed and that the focus of the appeal on these matters would relate exclusively to the admissibility of the mobile phone footage. Accordingly, ground of appeal no. 2 complains:

“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) [the gardai] failed to seize the phone during the course of the investigation;

v) [the prosecution] failed to make the phone available for examination;

vi) [the trial judge] 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”.

[Additions in square brackets by the Court]

30. The appellant relies on the treatment in McGrath on “Evidence”, 2nd and 3rd editions, of the subject of the receivability and admissibility in evidence of technologically recorded imagery such CCTV recordings, both analogue and digital, as well as other recordings of imagery, both moving and still, analogue and digital. In particular we were referred to paragraphs 12-101 to 12-104 of the 3rd edition, substantial portions of which are quoted in the appellant’s submissions including the learned author’s extensive references to the summary of the principles set out in the then leading authority, namely the judgment of McKechnie J. in People (DPP) v. A.Mc.D. [2016] 3 I.R. 123 at pp. 149-150.

31. The appellant has submitted that the first and most obvious objection of substance is that there was a serious risk that the events immediately prior to the seconds shown in the video were deleted. The case was made that this provided essential context for understanding what was shown in the video which was relied on by the prosecution.

There could be no serious contention that there was insufficient time to crop or edit the video by the exclusion of material before and after the seconds that were shown. There was no evidence to prove that a more sophisticated interference or distortion of the video material could not have been affected in the time available, with widely available editing technology.

32. Next, there was a more general objection of substance as to the reliability and integrity of the video that was shown. It was submitted that there was no proper basis for trumping the ordinary rules as to admissibility, which are designed to ensure the integrity and reliability of such potent material, on the basis of comments made by the appellant in the course of the Garda interview. The appellant was not an expert and could not be expected to identify interference in the integrity or reliability of the video – apart from what he did

– which was to point out that relevant material had not been included.

33. The prosecution contended that the video was consistent with the allegation of the complainant including that she was struck with the metal bar. The appellant maintained that it was consistent with his assertion that he merely pushed the complainant with his open palm of his hand. Although it was not adverted to in the trial, it was submitted that it is a matter of common knowledge that the best quality video material which is recorded digitally is on the device which recorded it. The Court was asked to note that the video was transferred to Ms. Power’s phone by WhatsApp.

34. It was submitted that in this case, the prosecution accepted that the phone should have been seized – thus preserving the video in its best quality format. The case was also made in the trial that the phone could have contained the missing material or shown that material had been deleted or efforts made to delete.

35. It was submitted that in circumstances where there was no evidence from the person who created the video – the 3 to 4 seconds of phone/video footage was arguably more properly regarded as hearsay evidence as it was the direct product of human intervention, and only hearsay evidence was available as to its creation. It was recorded on a phone by hand and the recording commenced with human intervention and stopped with human intervention; and no evidence was available as to any other intervention by the person who recorded it. It was also considered important to highlight that the recording commences exactly when the appellant picks up the iron bar and not a second prior to this. This was said to be particularly relevant as the appellant during his interview with gardaí, ten days following the incident, informed them that the complainant had struck him with an iron bar that hit the back of his neck immediately before he picked it up.

36. Counsel for the appellant further submitted that the very dramatic impact on the course of a trial which video evidence can have, and the severely destructive impact on the fairness of a trial of the failure to preserve such evidence, is clear since Braddish v. DPP [2001] 3 I.R. 127 and Dunne v. DPP [2002] 2 I.R. 305.

37. In the appellant’s case, there was no application to direct a verdict of not guilty on the grounds that the gardaí had failed to take reasonably practicable steps to preserve the evidence. The application was merely to exclude the evidence as was done by His Honour Judge Haugh in the Braddish trial; and as O’Donnell J. (as he then was) held in Byrne v.

DPP [2011] 1 I.R. 346 at para. 23 might be a fitting way in which a trial judge could ensure a fair trial in appropriate circumstances.

38. It was therefore submitted that in this case the appropriate remedy, to ensure a fair trial, was to exclude the evidence, and the trial judge’s failure to do so was a significant error rendering the trial unsatisfactory and the verdict unsafe.

Submissions on behalf of the Director

39. It was submitted that the principle that CCTV or phone footage is real evidence has been clearly established in the case of People (DPP) v. A.McD. (already cited) and that, as per the trial judge’s ruling, any issues the appellant sought to raise therewith were matters going potentially to the weight that the jury might attach to the evidence, rather than to its admissibility.

40. No submission was made at trial that what was seen on the footage said to have been recorded by the complainant’s underage female relative on her mobile phone, and played to the jury, was not real evidence which captured what had occurred. The appellant accepts that he is to be seen in the footage, and he has not suggested that what is in fact captured has been in any way manipulated or fabricated. Rather the defence submission was that the recording, which it was sought to admit, neither captures the lead up to the event captured on the footage, nor what happened afterwards. In that regard, the defence, while not expressly contending that material was edited out of the recording, allude to the fact that it is technically possible that that might have occurred; and they complain that the prosecution had failed to adduce any, or any sufficient, evidence to negative that possibility.

41. In seeking to answer this, prosecuting counsel has referred the court to People (DPP) v.

Noel Smith [2016] IECA 154 and People (DPP) v. Hannaway & Ors. [2020] IECA 38, both cases in which defendants had unsuccessfully challenged different types of recordings on the basis that their provenance had not been proved, and that the material could have been edited. These authorities were put forward not to support the proposition (which the respondent does not advance) that sufficient proof of provenance and authenticity was not necessary, but rather that, adopting the words of this Court (Edwards J.) at para. 71 in the Hannaway case,

“inability to present a history of provenance and integrity that is “watertight” in every respect [does not] automatically lead to inadmissibility of the evidence. In some cases, the deficiency might be so serious and fundamental as to warrant exclusion, but in many other cases it may simply go to weight. It all depends on the circumstances of the case and degree and extent of any claimed deficiency”.

42. Reliance was also placed on DPP (at the suit of Garda Padraig McWeeney) v. Laura Doyle [2020] IEHC 120, a consultative case stated, primarily concerning unavailable CCTV evidence due to an alleged failure by gardaí to seek out and preserve relevant evidence, in the course of which Gearty J. observed:

“[…] judges accept evidence of what other people have seen every day; it is an intrinsic part of the job. If the evidence comprises an account of what has been seen on CCTV, that too can constitute evidence in a criminal trial. The best evidence rule does not mean that a witness cannot describe what she has seen on CCTV footage, even if that footage is lost. To quote from Mr. Declan McGrath on Evidence, the best evidence rule “has fallen into desuetude and has no continuing vitality in Irish law as an independent rule of admissibility” (second ed. para 1.26).

CCTV footage evidence is real evidence, not hearsay evidence (see the judgment of McKechnie J. in the Supreme Court in Director of Public Prosecutions v. McD (A), [2017] 1 I.L.R.M. 176) and the testimony of a witness who has viewed CCTV footage may be admissible as evidence of what she has seen, depending on the circumstances, of course. It may or may not be fair to adduce it in all the circumstances of an individual case, but it is not inadmissible per se.

22. Arguments were also made in this Court about the provenance and reliability of the CCTV footage. These arguments were not raised in the District Court. This may have been because the garda evidence included a description of the owner of the hotel keeping the relevant video facilities, showing the system to the garda witness, the efforts of staff to download the material and the description of what could be seen matching what garda witnesses had observed. It will be recalled that the garda witness who gave this evidence as to what he saw on the footage was driving behind the vehicle at almost all relevant times in real time and, on the footage, could see his own vehicle following the Avensis out of the car park. It is in those circumstances that no argument was made about the reliability of the CCTV footage. Bearing in mind the Supreme Court guidance in relation to CCTV footage as set out in McD’s case, this appears to have been a sensible decision”.

43. Seeking to address the assertion made in the appellant’s submissions that it is a matter of common knowledge that the best quality digitally recorded video material is that which is stored on the device which recorded it, the respondent makes the point that this issue was not raised at the trial, nor was it suggested at any stage that the footage viewed on the phone and subsequently transferred to the gardaí was inferior in any meaningful way to, or materially different in any way from, that which was captured by and stored initially on the mobile phone used to record it.

44. The respondent says that insofar as the appellant seeks to rely on the Dunne and Braddish line of jurisprudence in the context of the failure of the gardaí to seize the mobile phone, the appellant is required to engage with the facts including the admissions made by the appellant and the position taken by him at interview accepting that he is to be seen in the footage and as to what the footage otherwise captures, in assessing the claim that he is prejudiced. No evidence was called as to what analysis could not now be done of the footage, other than the suggestion that if the phone had been seized it might have been possible for a technical expert to see if the footage had been cropped or otherwise interfered with.

45. In respect of the seizure of a phone, it is accepted by the respondent that the phone was not seized, but counsel points to the reasons set out by the Garda witness as to why that was, and her further reasons as to why the footage was secured in the manner in which it was done. It was submitted that had the gardaí not secured this footage the appellant would undoubtedly be arguing that the gardaí had failed to preserve highly probative and relevant footage.

46. It was submitted that in the instant case all parties including the appellant, who identified himself on the footage and sought to explain his actions thereon, had access to the real evidence footage of the incident. While the technical possibility of the cropping of further material from the recording was raised at trial, there was no engagement with the actual evidence to suggest a likelihood, or even reasonable possibility, that this had in fact occurred. Moreover, there was nothing to suggest that the recorded material actually transferred to the gardaí had been in any way manipulated or interfered with. The trial judge had therefore been right to admit the footage and in ruling that its weight was a matter for the jury as the tribunal of fact to determine.

The Court’s Decision on Issue No. II

47. We have no hesitation in rejecting this ground of appeal and in stating that in our assessment the trial judge’s approach to the admissibility issue was impeccable and entirely correct. We are satisfied that the recording which the prosecution were seeking to rely upon was real evidence and not hearsay. 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. There was no suggestion that what was actually forwarded to the Garda concerned had been in any way manipulated or interfered with. On the contrary, the appellant accepted that he was captured on the footage and at no point did he suggest that what was to be seen on the recording had not occurred.

48. The defence case in regard to the footage was simply that the entire event had not been captured on the recording, and that there was material missing (in the neutral sense of not being present on the recording) both from before the events actually captured and from after it, which would, if it had been available, have better contextualised what was shown on the recording, and which might have assisted the jury in weighing and assessing the credibility and reliability of the overall evidence in the case, including the complainant’s testimony on the one hand, and the appellant’s account at interview on the other hand; and in assessing whether the prosecution had negatived the appellant’s contention that he had acted in self -defence. Insofar as the prosecution accepts that there may have been material missing from the recording in the neutral sense referred to, that might have been due simply to the recording being commenced late and turned off early by the phone operator (in respect of which, if that were the case, the appellant could have had no complaint relevant to admissibility), or it might have been due to deliberate cropping of a larger recording which it was accepted might have been technically possible. However, there was no evidence tending to suggest that the latter was other than a remote and, in the circumstances of the case, fanciful possibility. The evidence was that the complainant and her underage relative had proceeded straight from the incident to the Garda station. There was no evidence to the contrary, or of any detour. Neither was there evidence of actual knowledge or competence by either the complainant or the child in question as to how to crop, edit or manipulate a recording.

49. We consider 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. It would have been better, of course, if the phone had been seized and made available to the defence for inspection, and if the child who had made the recording could have been interviewed and made available as a witness.

However, the fact that these things did not occur is not dispositive in the circumstances of this case of the issue of admissibility. The failure to seize has been explained and does not, per se, represent a fatal defect in the Garda investigation having regard to the other available evidence. Moreover, the child was underage and neither the child herself could be compelled to submit to interview or make a statement without parental consent, nor could those in loco parentis to her (whether that was the complainant when they presented together in the Garda station, or her actual parents) have been compelled to give such consent. These were practical realities. It seems that the identity of the child who made the recording was, as the trial judge noted, almost certainly known to the defence team before the trial. While the phone is now said to be in a broken state and to be unavailable, there has been no evidence placed before us that the defence had at any stage prior to the trial shown any interest in having it located and made available to them for technical inspection. The possibility of the cropping of the recording on it has merely been floated as a hypothetical, and at no stage has it been grounded in any meaningful engagement with the actual evidence adduced at the appellant’s trial.

50. Further, having regard to the terms of grounds of appeal nos. 2(b) and 2(c) we wish to state for the avoidance of doubt, and notwithstanding that the points pleaded in those sub-grounds were not pursued with specificity at the appeal hearing, we do not consider that the trial judge’s ruling was deficient in any respect in terms of how it dealt with the mobile phone recording.

51. In the circumstances outlined we dismiss ground of appeal no. 2 in all respects.

Issue No. I – Was the Trial Unsatisfactory and the Verdict Unsafe?

Background

52. The only basis advanced for this complaint is that the trial judge is said to have misdirected the jury as to defence of self-defence, in light of certain observations made obiter dictum by this Court in the relatively recent case of People (DPP) v. Crawford [2023] IECA 87. Unlike this case, the Crawford case was not concerned with an offence committed in circumstances that possibly engaged the provisions of s. 18 of the Non-Fatal Offences Against the Person Act 1997 (i.e., “the Act of 1997”). Rather, it was concerned with self-defence in the context of an alleged homicide, to which the law as set out in People (AG) v. Dwyer [1972] I.R. 416, rather than the provisions of s. 18 of the Act of 1997, applied. The observations relied upon were made in contrasting the law as set out in People (AG) v Dwyer, regarding self-defence in fatal cases, with that provided for by statute to apply to action in self-defence in the case of non-fatal offences.

53. Whereas, in a series of earlier cases decided by this Court (i.e., DPP v. Brannigan [2017] IECA 72; DPP v. O’Brien [2016] IECA 146; and DPP v. Quinn [2015] IECA 308), s. 18 of the Act of 1997 had been interpreted as requiring the application of a subjective test at all stages albeit with an objective element, in Crawford we had queried whether in certain circumstances the position might, in fact, be more nuanced in regard to one aspect, namely the proportionality of the amount of force used in response to the threat as subjectively perceived, in circumstances of there being a disconnect between the circumstances as the accused genuinely believed them to be and the circumstances as they actually were, due to a likely mistake of fact on his part.

54. Outlining our understanding of an argument that had been made by a respected academic commentator in the Dublin University Law Journal, we said:

“48. […] The position is nuanced however. In making the assessment as to whether force was justified the jury is required to look at the surrounding circumstances through the eyes of the user of force, or put themselves in his or her shoes. That part of the test would seem to be unquestionably subjective. However, when it comes to assessing the proportionality of the quantum of force used the test is objective: There must be an objective assessment as to whether the amount of force actually used was necessary in the circumstances as the accused believed them to be. Crucial in this regard is the fact that “belief” in s. 18(1) of the Act of 1997 is mentioned only in respect of circumstances, nothing is said about belief in the reasonableness of the quantum of force used.

49. The test therefore is not whether the accused reasonably believed that the force used by him or her was necessary in the circumstances as he/she believed them to be. It is whether the objective observer would regard the amount of force actually used as having been reasonable, in the circumstances as the accused believed them to be. For the purpose of making that assessment, s. 1(2) of the Act of 1997 is engaged to the following extent. It is engaged with respect to the accused’s asserted belief as to the circumstances obtaining, i.e. in considering whether he or she honestly held the asserted belief, even if it is as to a mistake of fact. What s. 18(1) requires is the identification of the circumstances which the accused genuinely believed to obtain at the time, not the circumstances that he might reasonably or justifiably have believed to obtain at the time. As Prendergast puts it, “a mistake of fact only has to be sincere; it does not have to be sincere and reasonable in helping to exculpate the defendant”.

55. In respectfully acknowledging the existence of cogent academic commentary to that effect, we emphasised at para. 48 that “we are not required to rule definitively on this in the present case and therefore it may be for another appellate court to do so in a future case”.

Motion to amend ground of appeal no. 1

56. Insofar as the appellant now seeks to complain about the trial judge’s charge in the present case, his complaint is that there was no ambiguity in the trial judge’s charge and that it amounted to a serious misdirection on the crucial issue in the trial in as much as it suggested, the appellant contends, that there was a second limb to the self-defence test that was objective. It was submitted that the jury was misdirected on the test to be applied to the evidence. Further, while the respondent points to the nuance identified in this court’s decision in Crawford as possibly requiring to be appreciated for a full understanding of s. 18 of the Act of 1997, the appellant’s contention is that the Court’s remarks in Crawford were obiter dictum and of no application in this case.

57. A number of points require to be made in regard to the potential relevance of Crawford.

First, there has not yet been an authoritative interpretation of s. 18 of the Act of 1997 in which this argument has been considered and ruled upon. Accordingly, the trial judge charged the jury correctly in accordance with the law as it stood at the time, i.e., as of the 20th of April 2023. Secondly, while the obiter observations of this Court in Crawford had been made three weeks earlier on the 31st of March 2023, they were not brought to the attention of the trial judge. Thirdly, no requisition was raised with the trial judge suggesting that he had in some way misdirected the jury on self-defence. Indeed, there were no requisitions at all.

58. In these circumstances the appellant has brought a motion seeking to amend his ground of appeal no. 1 to better particularise the complaint now being relied upon. His motion is grounded upon an affidavit of his instructing solicitor, the contents of which we have considered. Without prejudice to our decision on the merits of the appeal on the proposed amended ground we are disposed in the exercise of our discretion to allow the amendment sought.

59. Returning then to the merits, it seems to us that the ground of appeal in question, as now amended, must be rejected.

60. The jury were charged on self-defence in the following terms:

“A person is entitled to defend themselves. They are entitled to defend themselves from attack or from immediate risk of injury and it’s a little complex, the test here.

To be lawful, the degree of force, must be limited by the necessity of the occasion that requires it. And therefore the use of unnecessary force is itself an assault. The response must be proportionate to the threat and the threat is assessed by the accused. You have to try and imagine what he honestly believed to be the threat of harm that he was anticipating and that’s the subjective -- you’ll have heard these terms -- that’s the subjective element. What did the accused genuinely honestly believe he was going to suffer, if he didn’t take some action to defend himself.

So the force used to defend oneself must lawfully be used only where it is necessary, in the context of the occasion justifying it. The action, at all times, must be defensive. It can never go to being offensive. If the threat is over and there is retaliation or there is anger then what might have been initially defensive may turn to being offensive. And offensive action can never be self defence. As I say, the subjective test focuses on the mind of the particular person, the accused. The objective test then is, having determined in your minds, what it was he genuinely thought was the danger he was facing, you can objectively look and say, as 12 reasonable people, did he use more force than was reasonably necessary? That’s the objective part of the test. It’s up to the State, not the defence, to prove that this was not self defence. One of the factors that you can take into account is, was there an opportunity to retreat from the danger that was perceived? There is no obligation on anybody to retreat away from danger or threat. But the Act specifically says, “The fact that a person had an opportunity to retreat before using force shall be taken into account, in conjunction with other relevant evidence, in determining whether the use of force was reasonable or not.” The evidence here is, in this case, on the defence point of view that Mr Walsh was jogging away from the crowd, that a bar was thrown at him. That he picked it up, he turned around and went back to Ms Power. You have the video footage. It would be ideal if you could see more but there is no more.

This is what’s in this case.

So you look at it. You can look at it as much as you like and you then make a determination as to whether you feel Mr Walsh genuinely felt himself under threat, under danger and used no more force against Ms Power than was objectively necessary to defend himself. And that really is the issue in this case, because it is accepted by the defence that he applied force. He put, on their version, he put his palm of his hand -- I think the expression, “he handed her off” -- into her face, such that she was knocked to the ground. That is force. So it’s accepted force was used. And what the defence say is, that it was legitimate force in order to avoid harm that Mr Walsh anticipated he was imminently about to suffer”.

61. We are satisfied that the trial judge’s charge on self-defence was entirely adequate and sufficient in the circumstances of this particular case, having regard to evidence before the jury, the issues raised by it, and the contentions of the parties. We do not consider that the trial judge’s remarks are properly to be interpreted as suggesting that there was a second limb to the self-defence test that was wholly objective. While his remarks might have been better cast, in as much as he infelicitously referred to “the objective part of the test”, it is clear to us 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. Notwithstanding the arguments advanced, we are left with no concerns that the trial was unsatisfactory or that the verdict was unsafe on account of how the jury were charged on self-defence.

62. We therefore also reject ground of appeal no. 1.

Conclusion

63. The appellant’s appeal against his conviction should be dismissed.