Remand prisoner Simeon Burke has insisted the presiding judge never asked his family to leave the Court of Appeal (CoA) before an incident that led to his breach of the peace prosecution.
In a pre-trial procedural hearing, the Kings Inns barrister-at-law student complained that he was provided with CCTV evidence on Wednesday despite being told earlier that there was no footage.
The younger brother of sacked teacher Enoch Burke told Dublin District Court the footage was given to him five minutes before his case was listed for mention to confirm his hearing on Monday could go ahead.
He also demanded that copies of the appeal court's digital audio recording be handed over. He maintained that the presiding judge had not asked his family to leave the courtroom on March 7th when gardaí intervened following a ruling against Enoch Burke.
Mr Burke (24), currently a remand prisoner, appeared via video link at Dublin District Court when his case was listed for mention to confirm his hearing on Monday could go ahead.
He has repeatedly refused to sign a bail bond with a condition to stay away from the Four Courts, where his brother was at the centre of a legal dispute over transgenderism and his sacking by Wilson's Hospital School in Co Westmeath.
Simeon Burke, with an address at Cloonsunna, Castlebar, Co Mayo, was charged with a Public Order Act offence for engaging in threatening, insulting and abusive words and behaviour at the CoA on March 7th. The offence carries a possible three-month sentence.
There was no objection to bail set at €200, requiring no lodgement, but with a condition to stay away from the Four Courts.
However, the student who has pleaded not guilty refused to sign the bail bond. Consequently, he has remained in custody in Cloverhill Prison since.
CCTV evidence
On Wednesday, Mr Burke, representing himself, told Judge Grainne Malone that previously, he had been told by the Director of Public Prosecutions (DPP) that there is no CCTV evidence. However, a request was made for the footage in the intervening period.
Mr Burke said it was "extraordinary" that five minutes before he came into the video link booth in prison, a guard appeared and "thrust" an envelope at him "and said the CCTV was in the envelope".
He said it was important and needed time to review the evidence.
He had an issue about the digital audio recording from March 7th at the CoA.
"In relation to his matter, I would just say there is a dispute; it's an important plank of the prosecution case that the judge had asked for the family to leave."
"I say the judge never asked for my family to leave or for myself to leave the court, and obviously, therefore, the digital audio recording would be extremely relevant in getting to the truth, I say, of this critical dispute between the parties."
He said that it was "vitally important that it be produced"; it was easily obtained, and he offered to have it collected from the Bridewell Garda station or the offices of the DPP.
A State solicitor understood the accused was furnished with additional Garda statements and CCTV evidence on Wednesday morning. However, he said this was the first he had heard of the request for the audio recording from the Court of Appeal.
He agreed there was an obligation on the DPP to seize and disclose relevant evidence. But the defendant was also obliged to contact and liaise with the prosecution about relevant evidence.
In reply, Mr Burke said that it was incorrect that this was the first time the audio issue had been raised.
Formal application
Ammi Burke spoke up from the public gallery to say that over a week ago, a formal application was made to the CoA for the recording to be provided to her brother.
Mr Burke also said Ammi Burke, a qualified solicitor, is to act as a "McKenzie friend" to assist his defence, and he would have his own video and photographic evidence.
Judge Malone told the defendant that the law was clear that he was entitled to disclosure, that the court was conscious of the obligation for fair procedures and that he could raise the issues at the hearing.
However, she also informed him that she had no jurisdiction to determine the lawfulness of his detention. She remanded him in continuing custody with consent to bail to appear on Monday for his hearing.
At a previous appearance, Simeon Burke had told the District Court that the CoA was trying "to shove transgenderism down the throats of the people", and he called for a halt to his prosecution.
Since being charged, Mr Burke has unsuccessfully applied to the District Court and the High Court to throw out the case and claimed his detention was unlawful.
He has said he was deprived of his liberty and claimed four or five gardaí had attacked him.
Another judge told him last month that his refusal to sign the bond was the only thing holding him. "It is entirely of your own making; you are in custody in circumstances where with one flick of a pen, you could walk out," he had said.
