Sunday 26 May 2019

Protection order case is thrown out on technicality as accused enjoys anonymity under new law

Complex: Warning from Judge Grainne Malone. Picture: Courtpix
Complex: Warning from Judge Grainne Malone. Picture: Courtpix
Andrew Phelan

Andrew Phelan

A judge has raised concerns over domestic violence charges being prosecuted by gardaí on their own, after one of the first cases of the new year was thrown out of court on a technicality.

Judge Grainne Malone said it was the practice for many complex domestic violence cases to be run by gardaí without the help of a solicitor from the DPP's office. With new legislation in effect from January 1, she warned the laws were now even more complex.

The judge was commenting as she dismissed the case against an airline worker accused of frightening his ex-partner by shouting threats as she was out shopping at a north Dublin supermarket last year.

The accused (38) was among the first to enjoy anonymity under a reporting ban brought in by the new Domestic Violence Act.

Previously, those accused of the criminal offences of breaching barring, protection or safety orders could be identified. The new act prohibits naming the accused, except with the consent of the alleged victim and judge.

The man pleaded not guilty at Dublin District Court to breaching a protection order taken out against him by the mother of his daughter. Judge Malone dismissed the charge.

The woman said the incident happened while she was out shopping with her cousin at an Aldi last March.

She said the accused approached her in the shop and asked where their daughter was. She did not respond and he asked her cousin before leaving, she said.

As she pushed her trolley to her car outside, she said, he pulled his car up and shouted out the window: "I have you f***ing now on CCTV, you aren't in work, you watch, I have you now."

"I was scared, I was embarrassed, I was ashamed," the woman said, weeping.

The accused was "constantly putting me in fear," she said.

The man would say he was enquiring about his daughter in the shop and would deny any incident outside, his barrister said.

The court heard the date of the protection order on the charge sheet was inaccurate. The judge said this appeared to be a technicality but was not an insignificant issue and the prosecution had not applied to amend it. She said although she had only heard half the case, she believed the evidence of the alleged victim and that she was put in fear.

She said it was important to say the garda had decided to prosecute the case herself and while the existing Domestic Violence Act was a "complex piece of legislation, the new legislation is more so".

It was noteworthy that the accused was on legal aid with a solicitor and barrister, while the garda prosecuted the case alone, as in many domestic violence cases.

By contrast, in the vast majority of drink-driving cases, the judge said, a solicitor represented the State.

The judge said: "These can be legally complex cases and give rise to technical issues that are not always foreseen."

Irish Independent

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