A man has been acquitted of sexual assaulting a shop worker after his lawyers successfully argued that missing CCTV footage could have helped his defence.
Judge Elma Sheahan directed the jury to return the not guilty verdict in what is the second trial to collapse in Dublin Circuit Criminal Court this week due to the failure by investigators to secure relevant CCTV footage.
Andrew Finni (22) of Waterview, Lower Point Road, Dundalk, Co Louth had pleaded not guilty to sexual assault of a woman at a convenience shop in Dublin on February 21, 2018.
The woman testified during the trial that she was reaching up to stack shelves in the shop when Mr Finni came from behind and grabbed her vagina . She said that she screamed that he couldn’t do that and he replied that he wanted to see “if she was a lad”.
She said the manager asked Mr Finni to leave and he became aggressive and said “in front of everyone he was just trying to see if she was a boy”. She said he only left when he was told gardaí were coming and she broke down crying afterwards.
In an application to Judge Elma Sheahan defence counsel Simon Matthews BL argued that missing CCTV footage from the shop denied his client the ability to get a fair trial.
Footage
The court heard that about six weeks after the incident the shop manager had given gardaí a disc proporting to have the footage downloaded and saved.
When investigators went to view the footage they found the disc didn’t have it. Gardaí went back to the shop to secure the footage but were told the CCTV system automatically overwrites recorded footage after eight weeks.
When Mr Finni was later interviewed he told gardaí that the footage would show that the complainant “invited me over to check her private parts” following an alleged discussion over her gender.
Mr Matthews argued that there was no evidence his client had either seen the footage or knew that it was no longer available to check.
Judge Sheahan said that an obviously useful line of defence was now lost and the loss of the footage denies the defendant the right to a fair trial. She directed the jury to find Mr Finni not guilty.
In a separate case last Monday last Judge Sheahan directed a jury to acquit a man of shooting into the back of his cousin’s home.
Interviewed eight weeks after the shooting that accused told gardaí that he was at home all night. When investigators went back to secure the footage from his apartment block they found the footage had been automatically overwritten after 28 days.
Judge Sheahan noted that the garda evidence was fair, honest and in no way misleading and said investigators had sought to preserve evidence as it became relevant.
On Thursday Judge Sheahan said her ruling was not a judgement on the allegations or on the evidence of the complainant.
She said that gardaí have a duty to obtain and preserve evidence in an investigation and the court had to determine how important the missing evidence in this case was.
Under cross-examination the complainant denied that before the alleged assault there was an conversation where a person with Mr Finni said she was a boy and denied inviting Mr Finni over to “check if he liked”.
Mr Matthews put it to her that “there was a discussion about gender and a gesture was made by you” and the woman replied “that was not a conversation I heard”.