After discrepancies between CCTV footage provided to gardaí and the master copy of incidents recorded by RTÉ in the Co Mayo care home were revealed, counsel for the five accused made an application to Castlebar District Court for the case to be dismissed.
Meanwhile, counsel for the State, Patrick Reynolds BL, requested that CCTV evidence be forensically examined at Garda headquarters.
Judge Mary Devins said she wanted time to consider the applications from both sides and the fact that the DPP had directed prosecution on “incomplete evidence”.
Day two of the trial began with counsel for all five defendants asking that CCTV footage recorded in the day room of the Swinford care facility be omitted from the case. The call came after an overnight viewing of the master tape held by RTÉ.
Six clips relating to November 5 and 6, 2014, which were on the master tape, did not appear on the tape referred to as JFC1 and submitted by the State as evidence against the care workers.
Exhibit JFC1 is the main aspect of the State’s case against Pat McLoughlin, aged 56, of Lalibela, Mayfield, Claremorris; Christina Delaney, aged 35, of Seefinn, Lissatava, Hollymount; Anna Ywunong Botsimbo, aged 34, of 8 Low Park Avenue, Charlestown; Joan Walsh, aged 42, of Carrowilkeen, Curry, Co Sligo; and Kathleen King, aged 56, of Knockshanvally, Straide, Foxford.
Monday’s evidence had heard that six deletions were made from the master copy.
“First we understood there were no deletions then there were five, then six. We quite clearly pressed the witnesses [RTÉ staff] on the details. Now we find the deletions have doubled. The whole integrity is falling down,” said Mr Garavan.
Patrick Reynolds BL for the State pointed out that there were no charges relating to November 5 or 6 of 2014.
Gearoid Geraghty BL, representing Pat McLoughlin, argued that the integrity of the tape submitted by the State as evidence was “compromised beyond redemption”.
However, the head of RTÉ’s Investigation Unit, Paul Maguire, refuted claims files had been suppressed. He said it was “factually incorrect” to say files from November 5 and 6, 2014, had been deleted. He confirmed the first three files on November 5 and November 6, 2014, were not on JFC1 but they were not deleted, as they were on the master copy. “I guarantee you no files have been suppressed. We have nothing to hide,” said Mr Maguire.
He said there was “nothing of significance” on the six files of November 5 and 6. One clip showed a member of staff come into the room and remove a wheelchair and another showed the undercover researcher caring for a resident. He could not explain why all of the files didn’t copy over to JFC1.
Judge Mary Devins noted the prosecution was not taken by RTÉ but by the DPP based on evidence totally garnered by RTÉ. She said the DPP did not have sight of all of RTÉ’s material, as they did not have sight or knowledge of the deleted files nor the non-copied files to exhibit JFC1.
“Therefore, it was based on what might be described as incomplete evidence that DPP directed prosecution.”
The prosecution applied to have the master copy and JFC1 sent to Garda headquarters to be forensically examined, reporting back tomorrow morning.
However, Mr Geraghty renewed his application for the case to the dismissed. He asked the court to consider if RTÉ had misled the State solicitor, gardaí, and the court, intentionally or otherwise, by not providing full disclosure on the deleted files.
Judge Devins adjourned the case to tomorrow morning to consider the issues.