A man has been acquitted of sexually assaulting a store worker after his lawyers successfully argued that missing CCTV footage could have helped his defense.
Judge Elma Sheahan ordered the jury to return the verdict of not guilty in what is the second trial to collapse this week in Dublin Circuit Criminal Court over investigators’ failure to secure footage of relevant video surveillance.
Andrew Finni (22) of Waterview, Lower Point Road, Dundalk, Co Louth pleaded not guilty to sexually assaulting a woman at a convenience store in Dublin on February 21, 2018.
The woman testified during the trial that she was reaching out to stack the shelves in the store when Mr. Finni came in from behind and grabbed her vagina. She said she screamed that he couldn’t do that and he replied that he wanted to see “if it was a boy”.
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 told that Gardaí would be coming and that she collapsed crying afterward.
In a motion to Judge Elma Sheahan, defense attorney Simon Matthews BL argued that the store’s lack of CCTV footage was preventing his client from getting a fair trial.
The court heard that about six weeks after the incident, the store manager gave Gardaí a disk stating that the images were to be downloaded and saved.
When investigators went to see the footage, they found the disc did not have it. Gardaí returned to the store to secure the footage, but was told that the CCTV system automatically overwrites the recorded footage after eight weeks.
When Mr. Finni was subsequently questioned, he told Gardaí that the footage would show that the complainant “invited me to check her private parts” following an alleged discussion about her gender.
Mr Matthews argued that there was no evidence his client saw the images or knew they were no longer available for verification.
Judge Sheahan said a clearly useful line of defense has now been lost and the loss of the footage deprives the accused of the right to a fair trial. She ordered the jury to find Mr. Finni not guilty.
In a separate case last Monday, Judge Sheahan ordered a jury to acquit a man for shooting in the back of his cousin’s house.
Interviewed eight weeks after the shooting, the accused told Gardaí that he was at home all night. When investigators returned to secure the footage of his apartment building, they found the footage had been automatically overwritten after 28 days.
Judge Sheahan noted that garda’s evidence was fair, honest and in no way misleading and said investigators sought to preserve the evidence as it became relevant.
Judge Sheahan said on Thursday that her decision was not a judgment on the allegations or the evidence of the complainant.
She said the gardaí had a duty to obtain and retain evidence in an investigation and that the court should determine the significance of the missing evidence in this case.
On cross-examination, the complainant denied that prior to the alleged assault there had been a conversation in which a person with Mr. Finni said she was a boy and denied inviting Mr. Finni to “Check if he liked”.
Mr. Matthews told her that “there had been a gender discussion and you made a gesture” and the woman replied “it was not a conversation that I overheard”.