Aras Attracta assault charges 'based on incomplete evidence' - judge
Published 05/01/2016 | 12:39
A DECISION on whether assault cases against five care workers can continue will be made on Thursday morning.
After hearing applications from all five defence counsel calling for the cases to be dismissed, Judge Mary Devins said she wanted time to consider all aspects before the court.
She will also consider a request from State prosecutor Patrick Reynolds to allow the RTE hard drive at the centre of the case to be examined at Garda Headquarters and the case adjourned.
The decision to prosecute five care workers charged with assault at the Aras Attracta facility was based on "incomplete evidence", Judge Mary Devins also stated today.
Her comments followed serious concerns raised by defence counsel about a number of missing and non copied files in the recordings provided to the State by RTE.
Speaking at Castlebar District Court at the trial of five workers facing assault charges, Judge Devins asked the prosecution if they now needed to review all the evidence with the help of a technical expert.
She further queried if the case may then need to be referred back to the DPP.
During the course of the trial it emerged that six of the files recorded by RTE's undercover camera were deleted while six more failed to transfer onto the drive the station presented to gardai.
In cross examination today Paul Maguire head of the Investigations Unit at RTE insisted that no files had been deleted nor suppressed.
He corrected defence counsel Eoin Garavan who stated the files missing from JFC1 had been deleted.
"They were not deleted", he said; to which Mr Garavan replied: "Well [they were] not made available to the defence and the prosecution."
Mr Garavan said it now appeared a computer expert may need to be called to see what else may have been impacted by the technical glitch.
Judge Mary Devins reminded the court that the prosecution had not been taken by RTE but by the DPP "based on evidence largely in fact totally garnered by RTE".
She pointed to the comment from Mr Garavan that the files were not given to the defence or to the prosecution.
She said that when the matter was directed to the DPP, the Director did "not have sight of all the RTE material".
"It did not have sight of the six deleted files and the State and DPP did not have sight or indeed knowledge of the deleted files or the non-copied files.
"It was based on what might be described as incomplete evidence that the DPP directed prosecution," she said.
She asked Patrick Reynolds for the State if he needed time to "consider and view the deleted and non copied files with or without the aid of appropriate technical experts"
She further queried if the prosecution would then consider referring the matter back to the DPP.
Earlier in the day, counsel for the five defendants called for the State’s main item of evidence to be excluded in the case.
The call followed an overnight viewing of the Master tape held by RTE, which revealed a discrepancy between that tape and the one furnished to the State.
Counsel told Judge Mary Devins that the tape provided to the State by RTE was not identical to the Master tape. They stated that the Master tape contained a further six clips of footage which had been deleted from JFC1, the tape provided by the State for the prosecution.
Further deletions on JFC1 relate to clips taken on November 5 and 6, 2014. These remain on the RTE Master drive, the court heard.
Questions also arose about the evidence given by a number of RTE staff yesterday.
Gearoid Geraghty also raised concerns about a log provided by the prosecution stating no recordings were made on November 14, 2014.
However, this morning Counsel for two of the defendants, Pat McLoughlin and Anna Ywunong Botsimbo informed the court that the charges against their clients related to alleged incidents on that day.
Judge Devins asked if she could accept at this stage that there were no further discrepencies between the two tapes.
However, Eoin Garavan for defendant Kathleen King replied: “The whole integrity is falling down.”
Counsel for all five defendants made an application that the video tape, which was yesterday presented as the first prosecution exhibit, be excluded from the case.
Gearoid Geraghty, for Mr McLoughlin said the integrity of the exhibit was compromised beyond redemption.
Judge Devins rose to allow the State consult with RTE staff on the matter.
Eoin Garavan BL said both Ms Traynor and Ms Dunne had been “pressed” on the number of deletions and had assured the court “unequivocally” that there were only six files deleted.
However, he said on reviewing the Master tape it became clear there were a further six deletions from the copy presented to the State.
Three further deletions occurred on November 5 with a further three on November 6.
“These six deletions were not deleted from the master disc.
“First we understood there were no deletions, then there were five, then six. We quite clearly pressed the witnesses on the details. Now we find the deletions have doubled,” said Mr Garavan.
Mr Garavan said in his view the witnesses may need to be recalled; “perhaps overnight they may recollect these deletions.”
Patrick Reynolds for the prosecution told the court that no charges arose from any clips taken on November 5 or 6. However, he added he had been unaware of any discrepancy until this morning’s proceedings.
Counsel for the State Patrick Reynolds asked for a short adjournment. He told the court that screen grabs from the JFC1 tape and the Master tape were now being compared.
"It certainly appears from looking at the two hard drives, there appears to be a difference on the two days," he said.
Judge Devins asked Mr Reynolds if discrepancies occurred on any other days.
"That is what is being checked Judge," he replied.
After lunch Paul Maguire returned to the stand. He told the court that upon reviewing the Master tape against JFC1, six files were missing from the second drive.
However, he insisted the missing files has not been deleted from the tape presented to the State. He said it was "factually incorrect" to say the files had been deleted, adding that they remain on the Master drive.
"These files don't appear on JFC1 and I can offer you no explanation as to why they didn't appear on JFC1," he said.
He explained to the court that the missing files showed a staff member placing a person in a wheelchair, one of the undercover reporter Caoimhe Delaney tending to a patient, a resident coming in and sitting on a chair, and a staff member walking into the room.
"There was nothing of significance on those six files," he said.
Conall MacCarthy asked Mr Maguire as head of the Investigations Unit, was he "responsible for suppressing transmission of the files".
Mr Maguire told the court he did not accept that any files were suppressed.
"I can guarantee you no files were suppressed. We have nothing to hide," he added.
Mr Maguire also insisted there was a recording made on November 14, 2014.
This followed concerns raised from yesterday's testimony as to whether any filming took place on this date.
Two of the defendants are facing charges alleged to have occurred on November 14, 2014.
Five members of staff at the facility are facing charges of assault at Bungalow Three, Aras Attracta, Swinford Co Mayo.
Pat McLoughlin (56) Lalibela, Mayfield, Claremorris, Co Mayo; Christina Delaney (35) Seefinn, Lissatava, Hollymount, Co Mayo; Anna Ywunong Botsimbo (34) Low Park Avenue, Charlestown Co Mayo; Joan Walsh (42) Carrowilkeen, Curry Co Sligo and Kathleen King (56) Knockshanvally Straide, Foxford in Co Mayo all face a single charge of assault alleged to have taken place on dates between November 6 and 17, 2014. Each denies the charge.