Judge refuses application to strike out Áras Attracta charges

Court sees first footage of alleged incidents at centre of prosecution

Edwin McGreal
Castlebar

Applications to have assault charges against five Áras Attracta staff members struck out have been unsuccessful, and the case is proceeding today.
Judge Mary Devins this morning (Thursday) ruled on the application by counsels for the five defendants to have the charges struck out due to what the judge herself previously described as ‘incomplete evidence’ from RTÉ undercover cameras at the facility in Swinford.
Ruling against the motion, Judge Devins said that the missing files related to November 5, 6 and 12 of 2014, while the prosecution cases related to November 14 and 15, 2014.
Referring to the absent video files, she said there was ‘a surprise element’ to the ‘deletions and inconsistencies’, news of which emerging during the trial itself, and not before.
However, she cited that a ‘fair trial should not be confused with a perfect trial’. She ruled that because the absent files were a small amount of the total of 190 hours filmed and did not concern the dates the prosecution is basing its case on, she was satisfied there was ‘a prima facie’ case and it is ‘in the public interest to proceed’.
She added she did not feel the ‘contentious files’ in question ‘give rise to prejudice’ to the five accused individuals.
She added that ‘lest there be any perception’ of prejudice, she was directing that the prosecution case be restricted entirely to November 14 and 15.

‘Technical fingerprint’
Prosecution counsel Pat Reynolds told the court that two hard drives containing footage were examined by the Garda Technical Bureau on Harcourt Street in Dublin yesterday (Wednesday). He said the ‘technical fingerprint’ for the files on November 14 and 15, the dates relevant to the prosecution, is correct and there were no deletions or amendments for those dates.
However, representatives for the accused made applications for an adjournment stating that this Garda examination had shown over 300 files in total in the surveillance, which were ‘compromised’ by either deletion or replacement and deletion and asked for time to consider briefing their own technical expert.
Judge Devins said there was a ‘lack of proper scrutiny’ by RTÉ, the Gardaí, the prosecution and the defence, and she criticised the prosecution for having the discs assessed despite her not directing such.
Judge Devins added that she thought none of the legal representatives, gardaí or RTÉ personnel involved had ‘covered himself or herself in glory’ and described matters to this point as ‘very unsatisfactory’ but stated she was willing to proceed with the trial.
Harry Kenny, the Acting Programme Director at Áras Attracta at the time of the allegations, is the first witness to give evidence, and some CCTV footage in Bungalow Three of Áras Attracta has been shown.
The five defendants are: Pat McLoughlin (56) of Lalibela, Mayfield, Claremorris; Christina Delaney (35) of Seefinn, Lissatava, Hollymount; Anna Ywunong Botsimbo (34) of Low Park Avenue, Charlestown; Joan Walsh (42) of Carrowilkeen, Curry, Co Sligo and Kathleen King (56), Knockshanvally, Straide, Foxford.
The prosecutions were taken on foot of undercover filming at the facility for a Prime Time Investigates programme on standards of care in such facilities. The undercover footage is the central piece of evidence in the trial.

Deleted files
Gardaí were initially told by members of the RTÉ Investigations Unit that there was no deletion of any footage that had been recorded at Áras Attracta.
However it emerged this week that six files were deleted while another six were not copied from RTÉ’s ‘master’ hard drive file to the Garda hard drive used in evidence.
This Garda file was circulated to prosecution and defence legal teams.
Counsel for each of the five defendants made an application on Tuesday to Judge Devins to have the charges struck out. Prosecution counsel applied to the judge to have the matter adjourned to allow Garda IT experts to examine both the master file and the Garda exhibit to identify the discrepancies and attempt to view both the six deleted files and the six ‘non-copied’ files to determine their relevance.
The head of the RTÉ Investigations Unit, Paul Maguire, told the court there was ‘nothing of relevance’ in the files, stating that seven showed little or no activity in the common room in Áras Attracta, while five were accidentally recorded while their undercover reporter was en route to Áras Attracta, where she was working as a care assistant.
On Tuesday Judge Devins said evidence revealed in court showed that the Director of Public Prosecutions ‘did not have sight of all of RTÉ’s material’, citing the six deleted files and the six ‘non-copied files’.
She said the DPP’s prosecution direction was therefore ‘based on incomplete evidence’.
Judge Devins adjourned the matter on Tuesday evening to this morning to consider both applications.
Up to that stage the trial had not seen video evidence of the alleged incidents.
A sixth staff member at Áras Attracta, Joan Gill of Dublin Road, Swinford, has pleaded guilty to three charges of assault. She appeared before the court today, but that matter was adjourned to tomorrow (Friday) for mention.
A HSE-run facility, Áras Attracta is a residential respite and day service for adults with an intellectual disability.