Court of Appeal dismisses appeal against conviction where Gardaí obtained CCTV and photographs despite appellant's claim of missing video evidence.

APPROVED JUDGMENT

THE COURT OF APPEAL

Record Number: 0192/2022

Neutral Citation Number [2025] IECA 284

Edwards J. Kennedy J. Burns J.

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT/

- AND -

Brian Mullen.

APPELLANT

JUDGMENT of the Court delivered on the 4th day of December 2025 by Ms. Justice Isobel Kennedy.

1. This is an appeal against conviction. On the 1st of February 2022, the appellant was convicted of assault causing harm contrary to s.3 of the Non-Fatal Offences Against the Person Act 1997, production of an article capable of inflicting serious harm contrary to s.11 of the Firearms and Offensive Weapons Act 1990, and endangerment contrary to s.13 of the Non-Fatal Offences Against the Person Act 1997.

Background

2. The offending took place on the 13th of April 2019. The appellant’s neighbours, Paul Waine and his partner, were carrying out renovations on their property, including knocking down a block wall at the bottom of their garden. Paul Waine’s father, John Waine, the injured party, was assisting with the renovation works.

3. John Waine gave evidence that he had a conversation in or about January 2019 with the appellant about removing the wall and that the appellant was aware that this was planned in the future. He spoke with the appellant on the morning of the incident and asked the appellant if he wanted to remove the potted plants he had left beside it, in case they were damaged in the process.

4. When John Waine began to cut down the wall, he felt water hitting his face and realised that the appellant was on top of his shed spraying water from a garden hose. John Waine said he jumped on top of a wheelie bin and saw the appellant bringing a pitchfork down towards his face, he said one of the prongs hit his eye and another hit his cheek. The appellant then pushed John Waine, and he fell on top of concrete blocks, injuring his ankle.

5. Paul Waine said he witnessed the offending and took a number of photographs of the incident on his mobile phone, which were exhibited. CCTV footage harvested from an upper window of the house was adduced.

6. The appellant gave evidence at trial, where he contended that he acted in self-defence. He told the court that he had been gardening that day which involved the use of his pitchfork. He stated that when he took a break to go to the bathroom, he left the pitchfork upon the roof of the shed. He then heard a very loud noise and when he came back, he saw John Waine cutting down the wall. The appellant rang the Gardaí and said he waited until John Waine had finished with the consaw. He then got a ladder and a hose, which he had originally intended to use to dust off his plants but after “being called names” by the injured party and his son, he began to spray them with water to “try and prevent them from knocking down any more of the wall”. He told the court that John Waine and another one of his sons were shouting “all sorts of different obscenities” at him and that he heard them saying they were “going to effing kill me, that I’m dead”. The appellant stated that he used the pitchfork in the hope that John Waine would retreat, and that he held him off as best as he could to try and prevent him from coming at him.

Ground of Appeal

7. The appellant seeks to appeal his conviction on the ground that the trial judge erred in her decision not to withdraw the case from the jury in circumstances where the respondent failed to seize and preserve videos he believed were taken by Paul Waine on his mobile phone. He further says the judge erred in determining the taking of a video as speculative.

Submissions of the Appellant

8. The appellant submits that the failure in duty by the investigating members of the Gardaí resulted in a serious risk of an unfair trial. CCTV footage of the incident was played numerous times during the trial for the jury. It is said that a verbal interaction occurred between the appellant, and John Waine and his sons. However, due to the noise of the consaw, it is not possible to hear what exactly was said.

9. Paul Wayne said he had not taken a video of the incident. However, the appellant contends that it is clear from the CCTV footage that Paul Waine was holding a mobile phone steadily and moving it deliberately as though he were taking video footage. Moreover, the appellant argues that it is clear from the CCTV footage that the manner in which Paul Waine was holding his phone was not consistent with taking multiple photographs. However, photographs from his phone were adduced at trial. Paul Waine accepted during cross examination that he could hear his father saying something to the effect of "Keep a video, keep a video up".

10. The appellant had requested disclosure of all video and audio footage and in particular, that said to have been taken by Paul Waine. The investigating Garda told the court that he had viewed the CCTV footage on the evening of the alleged offending and that he had received several images from Paul Waine’s phone.

11. The appellant refers to the cases of Murphy v DPP [1989] ILRM 71 and Braddish v DPP [2001] 3 IR 127. It is argued that the investigating Garda erred in making no effort to check Paul Waine’s phone for the existence of a video of the incident. It is said a clearer audio would have disclosed alleged threats to the appellant, thus strengthening a defence of self-defence.

Submissions of the Respondent

12. The respondent submits that the Gardaí did not err when they failed to seize and forensically examine Paul Waine’s mobile phone, and consequently, that the trial judge did not err in refusing to grant the appellant’s application to withdraw the case from the jury on this basis.

13. Paul Waine denied taking any video of the incident on his mobile phone when asked about it over the course of the trial, and during cross examination, the following exchange took place;- “Q. Now, a video might have audio on it is just why I'm asking you but you don't have a video, do you?

A. No. I actually went back through my phone. Garda Mark Faul asked me again there at the end of the year that Mr Mullen's solicitor wanted to know if there was anything any additional photographs on the phone. I went back through everything we had to try and see if there was any other photographs and I sent everything I had on.

Q. Okay. So, I'm just wondering because you then shout at Mr Mullen, I'm going to put this to you, that you shouted, after your father had fallen to the ground, that you shouted to him "I've got a video"?

A. I don't remember saying that to be honest with you.”

14. It is submitted that the Gardaí fulfilled their duty to seek out and preserve evidence in the instant case. They obtained high-quality CCTV of the incident and in response to the appellant’s request for disclosure, a member of the Gardaí confirmed with Paul Waine that there were no additional photographs of the incident contained on his mobile phone. The respondent also refers to Braddish in submitting that the duty on the Gardaí to seek out and preserve evidence is not boundless or unqualified.

15. The respondent submits that the appellant’s argument is speculative and refers to the case of Dunne v DPP [2002] 2 IR 305;- "Where a court would be asked to prohibit a trial on the grounds that there was an alleged failure to seek out evidence, it would have to be shown that any such evidence would be clearly relevant, that there was at least a strong probability that the evidence was available, and that it would in reality have a bearing on the guilt or innocence of the accused person. It would also be necessary to demonstrate that its absence created a real risk of an unfair trial."

16. It is also noted that the trial judge ruled as follows in relation to this issue;- “…the issues raised can be dealt with by yourself in your addressing the jury and they can also be addressed in terms of the credibility and the assessment of the credibility of each of the witnesses. And if that gives rise to a doubt, on the part of the mind of the jury, well that doubt has to be exercised in favour of the accused.”

Discussion

17. Application was made at the conclusion of the respondent’s evidence to stop the trial in terms of the well-known jurisdiction in PO’C on grounds that the Gardaí failed to obtain, and as a consequence examine, Paul Waine’s mobile phone.

18. A Court has an inherent jurisdiction to stop a trial should an unfairness arise in the course thereof. The witness said in evidence that he did not take a video of the incident, the notion that the manner of holding the phone indicated that a video was being taken is highly speculative. It may be said that the optimum approach was for the Garda to examine the witness’ phone, however, photographs were taken and given to the Garda, and significantly high-quality CCTV of the incident was before the jury. Any issues arising on foot of the evidence was for assessment by the jury.

19. There was no question of any unfairness arising, much less an unfairness which would mandate the judge withdrawing the case from the jury and accordingly, the appeal against conviction is dismissed.