The case of man accused of verbally abusing a phone store worker and threatening to break her jaw was dismissed at Galway District Court after it was discovered that faulty CCTV footage had not been handed over to the defence.
Judge Aeneas McCarthy made the order to dismiss the case despite the best efforts of gardai to explain that although the CCTV footage had been received by the State it could not be opened, that the onus was still on the defence to prove a risk of an unfair trial, and that the accused had failed to avail of the opportunity to give his own evidence in the witness box.
John Fitzpatrick (37 ) with an address at 56 Fr Griffin Road denied the charges of assault and threatening and abusive behaviour at Vodafone, Corbett Court Shopping Centre, on April 28, 2011.
At the hearing on Monday, Vodafone employee Lisa Hayes gave evidence that between 5.30pm and 6pm Fitzpatrick entered the store to set up a connection on his mobile phone. However, he did not have the correct identification. When a member of staff attempted to explain this to him, Fitzpatrick refused to accept it and continued to argue the point and began shouting and roaring. Fitzpatrick then focused his anger on Ms Hayes shouting “you dirty fat b***h” and “who the f**k do you think you are”.
“He then leaned over the counter. I thought he was going to take a swing at me. Then a phone was thrown towards me and he said ‘I will hop that phone off your face and break your jaw’,” said Ms Hayes, who explained that Fitzpatrick continued to roar at her and he was asked to leave the shop a number of times.
Ms Hayes said that during the incident - which lasted up to 15 minutes - she was unable to get out from behind the counter as the aggressive Fitzpatrick was in the way; however, he eventually left the store and she was then able to alert security. Regarding her experience after Fitzpatrick had left Ms Hayes said: “I was petrified beyond belief because I had to stay in the store on my own and thought that he might come back,” she said.
Under cross-examination by defence solicitor Olivia Traynor Miss Hayes admitted that it was not until June 2 that she contacted the gardai to make an official complaint and that an independent witness, a work colleague, did not make a statement. However, Ms Hayes added that she needed to “mull things over” because she was scared. Ms Hayes explained that she had tried to deal with Fitzpatrick’s complaint but that “he made it a very personal thing towards me instead of company policy thing”.
“He didn’t push the phone towards you, he didn’t insult you or was abusive to you,” said Ms Traynor to which Ms Hayes replied: “He was. I wouldn’t be here if he wasn’t”. The case took a different turn when it was revealed that Vodafone had been asked to send CCTV footage to gardai, with Ms Traynor informing the court that she had not been informed of this.
Garda James O’Brien gave evidence that when contacted in person Fitzpatrick denied any involvement in the incident, explained that he had been drinking heavily, and declined to make a statement. Garda O’Brien then said that when he received the CCTV some months later “it didn’t seem to be working... I couldn’t access the files”.
Ms Traynor then put it to Garda O’Brien that when an order for statements is made by defence, CCTV should be given as part of the case. Under further cross-examination, Garda O’Brien said that the CCTV was not passed onto IT specialists to access the files. Ms Traynor then looked to Judge McCarthy for direction in the matter, particularly in relation to the CCTV.
Inspector Ernie Whyte told Judge McCarthy that every effort was made to seek out CCTV and that when given a file by Vodafone attempts were made to open it but it was unsuccessful. “So there was no CCTV,” he added. The inspector then said: “We have witnesses who gave a clear statement. The defendant could go into the witness box to deny it, it is still open to him”. Referring to other rulings, including one made in the Supreme Court, Inspector Whyte said that there was still an onus on the defence to show a serious risk of an unfair trial.
“This evidence came into the hands of the State and was not handed over to the defence or technical expertise... I’m not satisfied with the facts of the case,” said Judge McCarthy, who then ordered the case to be dismissed.