Judgment Title: Scully -v- DPP
Composition of Court: Murray C.J., Mc Guinness J., Hardiman J.
Judgment by: Hardiman J.
Status of Judgment: Approved
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THE SUPREME COURT
Murray C.J. 424/03
THE DIRECTOR OF PUBLIC PROSECUTIONS
JUDGMENT of Mr. Justice Hardiman delivered the 16th day of March, 2005.
On the 7th December, 2000, a vehicle was unlawfully seized in the forecourt of a filling station in Drogheda, Co. Louth. It belonged to the owner of the filling station who was struck with a hammer in the course of the seizure. On the 27th May, 2002, the applicant, who is the appellant in these proceedings, was charged with the unlawful seizure of the motor vehicle and with producing in the course of the seizure an article capable of inflicting serious injury. A Book of Evidence was served in October, 2002. Apart from establishing the above facts the Book of Evidence shows that the prosecution case was that the applicant had been arrested in January, 2001, in relation to the unlawful seizure. He allegedly made a number of exculpatory statements before making an inculpatory one. Despite this, no charges were brought for 16 months. There was no other evidence against the applicant. On the 1st November, 2002, the applicant was returned for trial to Dundalk Circuit Court on the 7th January, 2003. On that date the case was adjourned until the 11th March, 2003. On the 10th March, 2003, the applicant obtained leave to seek judicial review restraining the continuance of the prosecution against him.
Grounds for seeking judicial review.
On the 17th December, 2002, about six weeks after the applicant’s return for trial, his solicitor wrote to the Superintendent of the gardaí in Drogheda saying:
After leave to seek judicial review was granted, the gardaí served two additional statements on the applicant. The first was the statement of a detective guard who said that he had taken an additional statement from the owner of the filling station substantially to the effect that the video surveillance of the filling station had been greatly improved by him in October, 2001. The relevance of this information was that in the affidavit verifying the facts stated in the applicant’s statement of grounds there were exhibited certain photographs of the forecourt of the filling station which showed the position of video cameras. From these photographs it would certainly appear that the whole of the forecourt was covered by video surveillance. There was also an additional statement of Mr. Vincent McGovern, the owner of the filling station. This was to the effect that in late 2000, once one closed his shop door, the only lighting in the area of the forecourt was a 300 watt Halogen lamp which was activated by a sensor as one came out of the shop door. He said that this light would be on for 20 to 30 seconds after activation. It would have been extinguished by the time he got to his van. In late 2000, he said, there were only three cameras covering the forecourt and one the inside of the shop. They did not cover the area where the van was parked and in any event were totally ineffective in darkness. In October, 2001, he very significantly upgraded his surveillance system and the lighting associated with it, but even the new system would not have covered the area where his van was parked. He also said that on the night of the robbery he and the gardaí had watched the surveillance footage and could see nothing of the episode. He said he could not even see himself leaving the shop on this film.
It therefore appears that the grounds on which the application for judicial review was initially moved were to some extent based on the misapprehension that the video surveillance system in place in early 2003 had been in place at the time of the crime in December, 2000, and that this system covered the area where the robbery took place.
Structure of Judgment.
The learned trial judge (Kearns J.) refused the applicant relief in a judgment delivered on the 21st November, 2003. He dealt first with the question of the applicant’s delay in seeking relief and concluded that “the delay has been of such a magnitude as to disentitle the applicant [to] relief on that ground alone”. For the reasons set out below I agree with this conclusion: I consider that the lapse of time between the charging of the applicant and his application for relief on the eve of his trial was, in all the circumstances of this case, excessive. Because my reasons for this conclusion are not identical to those of the learned trial judge I propose to set them out in some detail. And because it is important, for the integrity of our system of criminal justice and for the avoidance of miscarriages of justice, to ensure that all reasonably available and potentially probative evidence is available to both sides of a criminal case, I propose to consider the learned trial judge’s obiter findings on other aspects of the case. I substantially agree with his comment that “Some sort of common sense parameters of reasonable practicality must govern any determination of the scope of the duty of the gardaí when seeking out or preserving evidence”: this has been repeatedly emphasised in the recent decisions of this Court from Braddish v. DPP  1 ILRM 151 onwards.
The learned trial judge, in his findings on this aspect said:
On the facts of this case, I have no hesitation in concluding that the delay has been of such a magnitude as to disentitle the applicant [to] relief on that ground alone.”
Despite this significant chronological difference, however, I agree with the learned trial judge’s conclusion. This is because one is concerned not simply with the temporal extent of the delay but with the time lapse in all the circumstances of the case. It is essential that the Court should view any lapse of time in its context in a particular case if, on the one hand, the requirements of fair procedure are to be met and, on the other, the administration of justice is not to be compromised by artificial, tactically grounded complaints.
The learned trial judge has surveyed in his judgment a considerable number of reported cases in this area of the law: Murphy v. DPP  ILRM 71; Braddish v. DPP  1 ILRM 151; Dunne v. DPP  2 ILRM 241; McKeown v. Judges of the Dublin Circuit Court and DPP (unreported, Supreme Court) 9th April, 2003); Bowes v. DPP and McGrath v. DPP  2 IR 25. All of these cases are concerned with what Fennelly J. in Dunne called “…The principle that the paramount right of an accused person to a fair trial may, in certain circumstances, be sufficiently vindicated only by restraining the prosecution from proceeding to put him on trial at all. One situation of which that may occur is where evidence, capable of exonerating the accused person, has been destroyed or has otherwise ceased to be available”.
It is unnecessary to repeat what was said by the judges, in the cases listed above and in others, on this topic. I would only observe firstly, that the principle on which the Courts have acted in the cases cited is not a novel one and its origins can be traced, in Ireland, at least to the judgment of Pallas C.B. in Dillon v. O’Brien and Davis  20 LR Ir 300. There, the learned Chief Baron said that a defendant’s custody
Secondly, I wish to reiterate that this topic has been thrown into renewed prominence for two separate reasons which have more or less coincided in time. The first is a series of most unfortunate cases, both in this country and elsewhere, in which convictions based on such traditional forms of evidence as identification or inculpatory statements have been shown to be unreliable and sometimes to amount to miscarriages of justice. At much the same time the ability of science and technology to provide apparently incontrovertible evidence by such means as video filming and DNA testing, has dramatically increased. A glance around virtually any urban setting is sufficient to show the extent to which the movements of people in such settings are recorded on camera. Of specific relevance to the present case is the notorious fact that premises which stay open late at night, and in particular filling stations, almost always have video surveillance.
If the law ignored these developments it could fairly be seen as insensitive to contemporary realities, and perhaps even to merit the Dickensian aphorism which expresses that perception. But it has not ignored them, as the cases cited above illustrate.
As in many other areas of law fundamental principles can be uncontroversially stated but their application to the myriad circumstances which arise in practice can cause difficulty. The case of Braddish featured a very simple application of principle. There, a robbery was committed in a shop protected by video surveillance. A garda viewed the tape and formed the view (a) that the video showed the robbery in progress and (b) that the applicant was the person shown committing it. The applicant was therefore arrested and allegedly made an incriminating statement while in custody. When his solicitor sought the video tape he was told that it was no longer available as it had been given back to the owners “after the accused admitted the crime”. These facts led to findings that real evidence could not be disposed of before the trial simply on the basis that the prosecution did not intend to rely on it; that in cases where the prosecution sought to rely upon a confession it should if possible be corroborated; and that the gardaí were under a duty to preserve and (more controversially) to seek out all evidence having a bearing or a potential bearing on the issue of guilt or innocence.
By the standards of later cases, however, the facts of Braddish present as exceptionally straightforward. In particular, it was the only case of which I am aware where it was positively stated by the gardaí that the missing video tape was the factor which had led them to suspect the defendant in the first case: a guard identified him from it. In this case and others the defendant is said to have fallen under suspicion for different reasons: “confidential information from a previously reliable source” is said to have implicated Mr. Scully.
The case at the other extreme from Braddish is that of Bowes, cited above. In that case the defendant was found driving a car in the boot of which was a considerable quantity of heroin and other items. His fingerprints were found on some of these items, and in the car. A few days before the trial, having already indicated that the case was ready for trial, the applicant for the first time sought details of the technical examination of the car and the whereabouts of the car itself. On the morning of the trial he sought judicial review restraining its continuance. He was refused relief by the High Court and by this Court on appeal where it was stated:
2 IR 305 which refers to the obligation of the defendant’s advisers to seek materials which they consider to be relevant… I mention these factors, not on the basis that the applicant may be disqualified on the grounds of delay but on the basic topic of whether there existed a real loss of an opportunity to rebut the prosecution’s case.”
The contrasts between the cases just discussed may also be considered in more principled terms. In Dunne Fennelly J. dissented from the proposition of the majority that “It is the duty of the gardaí, arising from their unique investigative role, to seek out and preserve all evidence having a bearing or potential bearing on the issue of guilt or innocence.”
Having regard to the emphasised words Fennelly J. said that:
The apprehension of Fennelly J. in that paragraph is of course a real and serious one. If a defendant in criminal proceedings were entitled to force their discontinuance because he could demonstrate any shortcoming in the investigation whereby evidence which might, however theoretically, lead to his exoneration was lost, that would be to alter the thrust of our criminal procedures in the direction of unreality and the frustration of justice.
In Braddish, having stated the duty of the gardaí in the passage quoted above I said:
In Dunne, having cited a portion of the judgment of Fennelly J. quoted above I said:
Delay in context.
Against that background, I turn to examine the delay here. Although I believe it to be much shorter than the learned trial judge thought, for the reasons set out above, it is still very significant in context. The defendant had known for about nine months before he sought judicial review that he was charged with an offence said to have taken place in the forecourt of a filling station in the town where he lived. As mentioned above, it is notorious that such locations are almost invariably covered by video surveillance. He took no step to ascertain the position about video surveillance for some seven months. This period of time is wholly unexplained and appears to contravene the duty (identified in the cases) which lies on an accused or his advisers, with their special knowledge of the case from the defendant’s point of view, to seek the evidence they require to sustain the defence. Furthermore, having been told (though not in as much detail as subsequently emerged) the reason for the absence of video evidence, they took no step to challenge this explanation which, if true, is of course an adequate explanation of the absence of relevant video footage. Instead, they launched judicial review proceedings on the false assumption that the video surveillance now in place was also in place at the time of the crime. When this misapprehension was exposed they did not desist from seeking judicial review but continued to seek it on a basis that is in my view remote, fanciful and theoretical. The explanation for the absence of relevant video footage is not only that of the gardaí; it is supported by Mr. Vincent McGovern whose integrity and accuracy has not been challenged, presumably because it cannot be.
The fact is that the rationale of this application vanished after the undisputed facts in relation to the video surveillance on the filling station at the time of the crime were revealed. This did not happen until quite close to the trial because the applicant did not investigate the position any earlier. This, in turn, appears to me to indicate that the applicant was more interested in tripping up the investigators than in discovery of evidence: certainly he was constrained to continue his application on the basis of a theoretical possibility only. This is the very risk warned against by Fennelly J. in the passage cited above. Applications on this basis must be discountenanced in the interest of the public right to prosecute, but also in the interests of the integrity of the jurisdiction, in a proper case, to restrain a prosecution on the basis that significant evidence has been ignored or destroyed.
Delay is significant not so much for its bare length (in this case, for instance, it was considerably less than the unexplained delay in commencing the prosecution) but for the indication that it provides that the case is based on a “remote fanciful or theoretical” possibility, rather than a real desire to obtain evidence believed to be potentially exculpatory. To put this another way, all the defendant has done here is merely to invoke the possibility that exculpatory evidence at one time existed, that there was something visible on the video, despite the new evidence. He must do more than that. In the words of Finlay C.J. in
Z. v. DPP  2 IR 476 at 507 he must “… establish a real risk of an unfair trial…”: the importance of the first adjective in this phrase is that it excludes a risk which is merely remote fanciful or theoretical. The need to meet this requirement involves a much greater engagement with the actual state of the evidence than is apparent here. The applicant’s case did not at all engage with the facts provided in the additional statements in April, 2003, but simply considered them as irrelevant. This omission represents a flight into unreality.
Videos to be preserved.
In Braddish it was emphasised that a video should not be destroyed or rendered unavailable by the gardaí simply because a garda has formed the view that it is of no use. The prosecution are fortunate that in this case the view which the Gardaí formed is independently corroborated and is unchallenged. But, in general, it seems both prudent and fair to preserve a video tape: the expense or inconvenience of doing so is minimal and the facts of another case might well lead to a different result following a decision to dispose of a video tape.
The above findings would be sufficient to dispose of the present application. However, like the learned trial judge, I consider it appropriate to comment on certain other aspects of the submissions made and issues raised in the course of the judgment.
The learned trial judge held that there had been “… a failure to seek inspection of any video footage for almost two years, a request being made only close to the trial of the matter”.
(a) Reckoning delay.
This estimation of the delay is only consistent with reckoning it from the date of the alleged offence. This, indeed, is consistent with the prosecution submissions which alleged that the applicant “failed to request certain video footage for a period of over two years”.
In Dunne, cited above, I said:
Obviously there might be cases where it would be proper to reckon delay from the date of the offence. If the defendant was immediately charged and it was common case that the defendant was present at the time of the alleged crime but the issue was whether he had participated in it, whether there was a question of self defence, or something of the kind that might be so. But in a case like the present it seems difficult to reckon delay from the date of the crime. One might reckon it from the date on which the defendant was arrested and questioned, but that would involve the assumption that a person who had been questioned but not yet charged, has a right to seek the obtaining or preservation of evidence, or to inspect it. Since this was not the subject of argument I refrain from expressing any view on it. The point, however, is one that might be of considerable significance in an appropriate case. For example, in the present case, the video tape itself became unavailable on an unspecified date but the whole surveillance set up of the premises was changed some nine months after the defendant was questioned, and almost eight months before he was charged. Subject to an authoritative determination of the rights of an uncharged suspect it appears to me difficult, in most circumstances, to reckon delay in seeking judicial review from a date earlier than that on which charges are preferred. In certain cases it will not be until the prosecution evidence is revealed on service of the Book of Evidence that the relevance of some particular form of investigation becomes clear. In a hopefully small number of cases it may not become clear until a later date again, arising perhaps from the service of additional service or a chance revelation.
I agree, however, with the emphasis which the learned trial judge placed on the fact that it is now notorious that filling stations in particular are often the subject of video surveillance. This is a pretty obvious proposition and the real possibility of such evidence, and its potential relevance, must have been apparent at least from the date on which charges were preferred.
The learned trial judge did not make this point the ground of his decision, but he had this to say on the topic:
(b) The existence of a confession.
B. v. DPP  3 IR 140 at 202:-
‘(1) Where at the trial of a person on indictment evidence is given of a confession made by that person and that evidence is not corroborated, the judge shall advise the jury to have due regard to the absence of corroboration’.
It is impossible to dissent from what the learned trial judge said about the relevance of an alleged inculpatory statement. I would, however, add that it may also be relevant to consider not only whether the statement relied upon has been contradicted but also whether there were also exculpatory statements and whether the inculpatory statement relied upon is corroborated in any way, and whether the alleged statement has been itself videotaped.
(c) Duty and discretion.In the course of his judgment the learned trial judge asked:
Later in his judgment the learned trial judge says:
I wish to emphasise my entire agreement with what the learned trial judge says in the passages just cited. The examples which he gives in the passage first cited above are excellent examples of what is meant by the phrase in my judgment in Dunne to the effect that no “remote fanciful or theoretical” possibility should lead to a prosecution being prohibited. One is concerned, first and last, whether there is a real risk of an unfair trial. Obviously this question will depend on the individual circumstances of each case. Of the reported cases, Bowes is the best example of the nightmare scenario envisaged by the learned trial judge here and in that case relief was of course refused both in the High Court and in this Court. Similarly, I would refuse relief in the present case because in the uncontroverted circumstances the relevance of the video tape is purely theoretical and the applicant’s own delay in seeking it demonstrates his consciousness that this is so.
But I cannot entirely agree with the passage with which the learned trial judge ends the discussion the commencement of which is cited above. Having made an exception for “malicious behaviour on the part of the gardaí or any kind of bad faith” (which fortunately is rarely found or demonstrable) goes on:
It has been stated in several cases that a video tape from a camera in place at or near a crime scene is an unusually direct sort of evidence. Moreover, it is a type of real evidence in relation to which there is rarely if ever any reason why it should not be taken possession of, examined and disclosed. Its intrinsic value is small and the disadvantage to its owner of being deprived of a single tape will normally be minimal or non-existent. Even the most rudimentary of “common sense parameters” suggest the difficulty of thinking of a reason for the destruction of a video tape and the obviousness of the reasons, both principled and prudential, for its preservation. What distinguishes the present case is the uncontroverted and corroborated evidence that this particular tape is of no value, as well the applicant’s delay in seeking it.
(d) Other items of real evidence.Different considerations may apply, however, where an item of real evidence is valuable and urgently needed by its owner. A motor vehicle is a classic example of this. Ordinary experience and elementary justice requires that a person should not be deprived of his or her motor vehicle for longer than absolutely necessary so there is an obvious imperative to return it to its owner as soon as possible. If forensic examination takes place at a time when no-one is suspected, and the examination itself does not produce a suspect, it would clearly be unreasonable to hold on to the vehicle indefinitely. It might be said that the logic which applies to video tapes applies equally to a motor vehicle but, as Justice Oliver Wendell Holmes famously observed, the life of the law has not been logic but experience. If the necessity to restore the item is real and the failure to notify the eventual defendant is bona fide, based on impossibility, there can be no possible objection to parting with the item.
(e) Video tape “not in possession of Gardaí”In the respondent’s submissions in this Court, some emphasis was placed on the proposition that although the gardaí had viewed the video tape they had not taken possession of it. This was said in support of a submission that their obligations of preservation and disclosure were less in the case of an item of which they had never been in possession than they would be if they had taken possession of the item. In my view, this is a distinction without a difference. Mr. McGovern was of course very eager to help in the investigation of the crime and it cannot be doubted that he would have given the gardaí the video tape if they had wanted it. In any event, as the judgment of Chief Baron Pallas cited above makes clear, they had a common law power to seize it. I do not believe it makes any difference to the outcome of an application of this sort whether the gardaí were in actual physical and legal possession of the item in question or whether it would have been available to them if they had wanted it. Indeed, in a case like this about a filling station I believe that both parties, the eventual defendant and the gardaí, are fixed with imputed knowledge that video surveillance is more than likely to be in place. On the hearing of this appeal, the State argued that the defendant must be fixed with such knowledge so as to make his delay in investigating the question of the video run from the time at which he knew that the premises at which the crime was said to have been committed were in fact a filling station. The same logic must apply to the gardaí, so that even if they had ignored the question of whether there was video surveillance or not, or declined (as in Dunne’s case) to say what if anything they had done about the possibility of video surveillance, it would make no difference to their obligations in that regard.
(f) Eve of trial applications.I entirely agree with the learned trial judge’s strictures on the fact that this application was made, literally, on the eve of the trial. This is not the latest recorded application: in one of the reported cases (Bowes) the application was made on the morning of the trial. I would apply similar strictures to any application made in the immediate run up to the trial, for a number of reasons which I now summarise, not necessarily in order of importance. Firstly a case which has a trial date attributed to it is displacing another case which might have been listed for the same day, thereby causing additional stress, anxiety and possibly worse to the parties in the other case. Secondly inconvenience or worse is inevitably caused to witnesses when the trial date is vacated at the last moment. Thirdly a good deal of effort in ensuring that the case is ready to go on would be wasted if the date is lost. I would apply these strictures to the loss of a trial date regardless of which side brings it about. In the particular case of loss of an assigned trial date due to a very late application for judicial review the underlying reason will almost always be a failure to think seriously about the case until just before the date for which it is listed. I would not advocate an absolutely rigid attitude to such applications because experience shows that there can be circumstances which justify the delay. But if it is necessary to make a very late application of this sort I consider that the reasons for this necessity should be specifically addressed in the statement of grounds or the affidavit verifying it so that the Court can consider whether, in the exercise of its discretion, it should grant a very late application for leave.
I would dismiss the appeal and affirm the order of the learned trial judge.