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Scully v. D.P.P. [2003] IEHC 92 (21 November 2003)
No. 2003/175 J.R.
BETWEEN/
APPLICANT
RESPONDENT
Judgment of Mr. Justice Kearns delivered the 21st day of November, 2003.
The applicant in these proceedings was on 27th May, 2002 charged that on the 7th December, 2000 at Beechgrove Service Station, Drogheda, Co. Louth, he did, while committing an offence, to wit, the unlawful seizure of a motor vehicle, produce in a manner likely unlawfully to intimidate another person, an article capable of inflicting serious injury, to wit, a hammer, contrary to s. 11 of the Firearms and Offensive Weapons Act, 1990. He was also charged that on the same date and place he did by force unlawfully seize a vehicle, to wit, a motor car, contrary to s. 10 of the Criminal Law (Jurisdiction) Act, 1976.
The applicant now seeks from this Court an Order of Prohibition preventing his trial on the said charges.
Leave to seek judicial review by way of prohibition or injunction was granted by O'Donovan J. on the 10th March, 2003 on grounds which may be summarised as follows:-
(1) From the Book of Evidence, it appears that it is alleged that on the 7th December, 2000 at approximately 11 p.m., Vincent McGovern, the owner of the filling station at Beechgrove, locked up his premises and walked across the forecourt to his motor van. With the keys of the van in his hand, he then received a severe blow to the back of his head. When he looked up he saw a claw hammer in a young man's hand. It is then alleged that a man got in to Mr. McGovern's van through the passenger door and that the van was driven off from the scene. At the time of the alleged offence it would appear that video cameras and a recording system were in use, covering the premises including the forecourt.
(2) At all material times the investigating Gardaí in the case had access to video recordings of the locus and period of the said alleged offence.
(3) In correspondence with the local superintendent, it had been admitted that video footage from the night in question had been viewed by the Gardaí but it was claimed that the video footage in question did not cover the area of the forecourt where the robbery took place. It is also claimed that the footage was of very poor quality and of no evidential value. It is admitted that the Gardaí did not retain possession of the video footage, nor is it available for the trial in respect of the said prosecution.
(4) It is further claimed that there is 'a reasonable possibility' that the said video recording could have provided evidence which would have tended to exculpate the applicant and that the failure by the Gardaí to preserve the said video recording until the applicant had an opportunity to inspect same, amounted to a breach of the respondent's common law obligation to preserve
evidence potentially relevant to the issue of the guilt or innocence of the applicant.
(5) It is further asserted that the applicant's constitutional right to fair procedures has been breached since the Gardaí's acts and/or omissions in the circumstances deprived the applicant of the reasonable possibility of rebutting the evidence proffered against him and it is claimed that the applicant cannot now receive a trial in accordance with law.
BACKGROUND:
Mr. Vincent McGovern is the owner and operator of a filling station and shop at Beechgrove, Drogheda. On Thursday night, the 7th December, 2000 he finished his business for the day. He locked up the shop at exactly 11 p.m. His Citroen van was parked in the garage forecourt, parallel with the Ballymakenny Road, facing in the Drogheda direction. In his statement of proposed evidence he records it was a dark, wet and windy night and only the emergency lighting was on in the forecourt area at this time. It is automatically triggered when someone walks into the range of the sensor. These lights were on as he walked across the garage forecourt to the van. He approached the front passenger door of the van and went to put the key in the door. He then received a severe blow to the back of his head and fell to the ground. He looked up and saw a claw hammer in a young man's hand. He was unable to provide a description of his assailant. At this point he had seen only one person. He got up from the ground and saw one man at the passenger door of his van with a claw hammer in his hand. He moved away from the van and this man got into the van through the passenger door. The van then drove off in the direction of Sunday's Gate. The van was recovered a short time later by the Gardaí and on Friday the 8th
December, Mr. McGovern went to Drogheda Garda Station where he checked his van and discovered that £430 worth of Eircell Go-Cards were missing. They had been removed from a briefcase which had been in the front of the van.
Following inquiries, Garda Séamus Nolan arrested the applicant in relation to the robbery on the 7th January, 2001 and brought him to Drogheda Garda Station. In the course of his detention there, the applicant allegedly made a number of statements under caution, at least one of which was made in the presence of his solicitor. In the last of these alleged statements made on the 7th January, 2001, the applicant made a full statement of admission in relation to the robbery.
This alleged statement of admission is effectively the evidence, or the principal evidence, against the applicant in this case. While the statement of the member in charge on the 7th January, 2001 indicates that the applicant did not make any complaints during the course of his detention, the applicant's solicitor deposes in his affidavit that he had received instructions from the applicant denying the veracity of "this alleged inculpatory statement and challenging the circumstances under which said statement was taken". This affidavit was sworn on the 7th March, 2003. It does not state when the deponent received such instructions, nor does it appear from any papers before this Court that the applicant had any complaint to make whatsoever about the propriety of the statement prior to this occasion.
Thereafter, the applicant was charged on the 27th May, 2002. A book of evidence was served on the applicant in October, 2002. On the 1st November, 2002 the applicant was returned for trial at Drogheda District Court to Dundalk Circuit Court on the 7th January, 2003. On that latter date, the applicant's case was adjourned by His Honour Judge Groarke until Tuesday the 11th March, 2003. This judicial
review application was therefore moved only one day prior to the date of the proposed trial.
On the 17th December, 2002, the applicant's solicitor had written to the respondent requesting information as to the existence of a copy of a video recording from the said location, for the period of the said alleged offence. On the 6th January, 2003 Superintendent Doggett responded to the applicant's solicitors by letter, stating as follows:-
"I am to inform you that the CCTV footage on the night in question was viewed by the Gardaí. It did not cover the area of the forecourt where the robbery took place. It was of very poor quality and of no evidential value. The Gardaí did not retain possession."
In his affidavit sworn on behalf of the applicant, Mr. Paul Moore, Solicitor, deposes at par. 9:-
"I say that in circumstances where there were a number of video cameras covering the filling station premises, there is a reasonable possibility that the said video recordings could have provided evidence which would have tended to exculpate the applicant."
He then exhibited a number of photographs of the locus which indicated a number of video cameras shown at four different locations outside the shop premises and at the corners of the canopy covering the petrol pumps in the garage forecourt. Mr. Moore goes on to state his belief that it is accepted practice and conduct that Gardaí in the investigation of offences in and around premises such as filling stations would examine and obtain video recordings therefrom and, in all the circumstances, the failure by the Gardaí to preserve the video recordings in this case until the applicant had an opportunity to inspect same, amounted, he says, to a breach of the
respondent's common law obligation to preserve evidence potentially relevant to the issue of the guilt or innocence of the applicant.
While I am sure that the error was completely unintentional, Mr. Moore's affidavit was seriously inaccurate because the camera system seen in the photograph was not that in place on the date of the alleged offence, namely the 7th December, 2000, but was one which had been installed subsequent to and because of the events on that date.
In an additional statement, Mr. McGovern makes clear that the only lighting as he walked to his van on the night in question was a 300 watt tingstem halogen lamp which was connected to a motion sensor. This would have been activated as he came out of the shop door and would only have remained lighting for 20 to 30 seconds once he had moved from the immediate vicinity of the shop door area. It would have extinguished prior to his putting the key in the passenger door. He states that the only cameras installed in November of 2000 were three covering the forecourt and one inside the shop. The three external cameras covered (1) the immediate area covering the shop front to a distance of 30 ft. out in daylight, (2) the forecourt on the right hand side as one looks out from the shop to a distance of 30 to 40 ft. in daylight, and (3) a camera which was mounted directly overhead where he was assaulted and which was pointing to cover the right hand petrol pump as one looks out from the shop, to a distance of 30 ft. in daylight. In his additional statement, Mr. McGovern states that these cameras were totally ineffective at night time and none of them covered the area where he was assaulted and robbed. In October of 2001, he further states that he spent £4,000 upgrading his CCTV system, including the installation of a multiplex system, four external cameras and an internal camera. He also upgraded the lighting on the forecourt to more powerful wattage. He also better directed the cameras to
cover the garage forecourt. He upgraded the emergency lighting to 2000 watt, but even so would still not see the area in which he was assaulted on the night in question, even with this improved system.
He recalled that on the night he was robbed he showed the CCTV footage to Sergeant Brendan Cadden. He could see nothing on this footage of the incident. He could not even see himself leaving the shop as he passed the sensor area which activated the lighting. It was as a result of this that he realised the ineffectiveness of the system during the hours of darkness and subsequently invested in upgrading and improving the coverage. The photographs shown to him by Detective Garda Nolan taken on behalf of the applicant of the forecourt of his garage, show the current system and not the system he had in operation on the night in question. Specifically, the camera indicated at (1) was not in existence at the time of the incident and the remaining cameras shown have been redirected since that date.
Mr. McGovern's statement was made on the 1st April, 2003 and the accuracy of the matters deposed to has not been put in issue by or on behalf of the applicant. Nor has the applicant through his counsel availed of an opportunity offered during the course of the hearing to cross-examine either Mr. McGovern or Sergeant Cadden.
Sergeant Brendan Cadden, in an affidavit sworn on the 1st July, 2003, deposes that he viewed the video footage but did not see anything of evidential value in it. The footage was in complete darkness and nothing could be seen. Had the footage shown anything at all it would have been taken possession of by him. Because the video was useless as far as visibility was concerned, it was not capable of providing evidence for either the prosecution or the defence. For this reason, he felt that there was no point in taking possession of the video and so it never came into the possession of An Garda Síochána. Shortly afterwards it was wiped, lost or replaced.
The applicant's case may be summarised in the following manner. The applicant contends that the failure by the Gardaí to preserve video evidence of the robbery amounts to a breach of the applicant's constitutional right to an adequate opportunity to conduct his defence, that the applicant cannot now receive a trial in accordance with law, since no warning to a jury could repair the 'prejudice' which he has suffered arising from the failure to preserve the video. The claim for relief is set out as follows in the written submission:-
(a) The recent proliferation of video recording systems in public and private locations has subjected citizens to constant surveillance and recording of their actions in those locations.
(b) Video recordings arising from those systems are habitually used as inculpatory evidence in criminal offences.
(c) If citizens are accused of committing an offence in such locations, they are entitled to the preservation of any recordings which are in the possession of their accusers, so that the recordings can be assessed for their exculpatory value.
(d) In all the circumstances, the alleged delays by the applicant should not ground the refusal of relief that the applicant's right to a trial in accordance with law has been breached.
DELAY
It has not been suggested in the course of this application that the applicant was at any stage without legal representation. Indeed he had the benefit of his solicitor's attendance, as was his right, whilst detained in the Garda Station.
Secondly, the awareness of the existence and proliferation of video recording facilities, particularly at locations such as filling stations, is expressly acknowledged by and on behalf of the applicant in the documentation placed before the Court. This is of some significance, having regard to the observations of Hardiman J. in Dunne v. D.P.P. [2002] 2 ILRM 241, when he stated:-
"There is also responsibility on a defendant's advisers, with their special knowledge and information, to request material thought by them to be relevant."
Despite that awareness there was 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.
In Mitchell v. D.P.P. [2000] 2 I.L.R.M. 396, Geoghegan J. refused relief in a case which also related to video evidence on grounds of delay, stating (at p. 399):-
"In these circumstances, I do not think the applicant is entitled to prohibition. Even if I were wrong in that regard, I would have to refuse the relief on the basis of the delay of fourteen months from the date the applicant was charged to the date the applicant sought the tapes."
In Connolly v. D.P.P. [Unreported decision of Finlay Geoghegan J., 15th May, 2003), it was held that a two month delay in requesting that a car be retained for examination was excessive and further that the delay in bringing the judicial review application until the 1st July, 2002, the applicant having been charged on the 8th February, 2002, was also, in the absence of an explanation for that delay, excessive.
Accordingly, while it is certainly the case that the courts are slow to refuse to entertain an application for judicial review seeking to prevent a criminal trial where
the allegation is one of a serious risk of an unfair trial on the grounds of delay in bringing the application, each case must turn on its own particular facts and there are cases where delay is a bar to relief.
Mr. Collins S.C., for the applicant, contends that this is not a case where the delay should constitute such a bar, because it is common case that the evidence was disposed of almost immediately after the incident described by Mr. McGovern, so that any delay, he says, was nihil ad rem. No earlier request for the video material following the arrest of the applicant on the 7th January, 2001 would have yielded any different result. So far as it goes I think that contention must be correct, but that does not of course dispose of the point. Had an earlier request been made which resulted in the information becoming available, as it most certainly would have done, that the video footage had been lost or destroyed, it would, of course, have been open to the applicant to apply promptly for judicial review.
In the events which transpired, and in the absence of any request until the 17th December, 2002, an interval of nineteen months had elapsed from the time that the applicant was charged with the offence. No explanation for that delay exists. As we have seen, the application for judicial review was only made, literally, on the eve of the trial.
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 relief on that ground alone.
THE MERITS
As my decision on the delay issue may be taken elsewhere, I propose also to deal with the issues raised in this case, not least because of the increasing number of applications of the sort here.
Any discussion of the legal principles applicable to the requirement to preserve evidence must begin with the statement of Lynch J. in Murphy v. D.P.P. [1989] I.L.R.M. 71, in which he stated:-
"The authorities establish that evidence relevant to guilt or innocence must insofar as is necessary and practicable, be kept until the conclusion of the trial. These authorities also apply to the preservation of articles which may give rise to the reasonable possibility of securing relevant evidence."
The general principles applying to applications to prohibit a criminal trial are those set out in the judgment of the Supreme Court in Z v. D.P.P. [1994] 2 I.R. 476 (at p. 506):-
". . . [the]onus of proof which an accused must discharge when he seeks an order prohibiting his trial on the ground that circumstances have occurred which would render it unfair is that he should establish that there is a real risk that by reason of those circumstances . . . he could not obtain a fair trial."
Later in the same judgment, Finlay C.J. stated (at p. 507):-
". . . an onus to establish a real risk of an unfair trial . . . necessarily and inevitably means an unfair trial which cannot be avoided by appropriate rulings and directions on the part of the trial judge. The risk is a real one but the unfairness of trial must be an unavoidable unfairness of trial."
The issue in this, as in other cases, is a net one. Does the fact that the video tape is unavailable because the Gardaí either failed to obtain it or parted with possession of it, require in the circumstances that the further prosecution of the
accused be restrained? Putting it another way, just how far must the Gardaí go in seeking out and/or preserving evidence in the context of a criminal prosecution? For example, in the instant case, which is effectively confined to the issue of the video, might it not equally have been submitted and argued that the requirement to keep all evidence having some possible relevance to guilt or innocence demanded that Mr. McGovern's van be preserved on the off chance that at some future time a person might be apprehended and charged, at which point he might seek to claim he was entitled to have had an examination of the van carried out for finger print or other evidence which might conceivably have exculpated him? If that be so, might there not also be a requirement to keep and preserve any vehicles parked in the immediate vicinity where Mr. McGovern's van had been parked on the night in question, for precisely the same reason, namely, that one or more of such vehicles might have yielded up similar information?
A review of the cases relating to video material is therefore of some importance in determining, at least insofar as video material is concerned, where the line should be drawn.
In Braddish v. D.P.P. [2002] 1 ILRM 151, the facts were as follows. On the 2nd July, 1997 a robbery occurred in a shop in Limerick. The shop was protected by video surveillance and the Gardaí, having viewed the video tape, believed that it showed the robbery in progress. The appellant was arrested on foot of the video evidence and while being detained pursuant to s. 4 of the Criminal Justice Act, 1984, allegedly made and signed a statement admitting to the robbery. He was later charged and in the District Court his solicitor requested that he be furnished with, inter alia, the video footage. However, the video was unavailable as it had been returned to the owner of the shop after the appellant had allegedly confessed to the crime. The
Supreme Court, in reversing Ó Caoimh J., prohibited the trial, the unanimous decision of the Court being delivered by Hardiman J. At p. 157 of his judgment he stated:-
"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. This is so whether the prosecution proposes to rely on the evidence or not, and regardless of whether it assists the case the prosecution is advancing or not."
While these views were expressed obiter in Braddish they were repeated and confirmed by Hardiman J. in Dunne v. D.P.P. [2002] 2 ILRM 241, another Supreme Court judgment concerning video evidence. Before considering the facts of this case, it is also appropriate to quote the qualification to those views expressed in Dunne v D.P.P. at p. 258:-
"I would, however, repeat that view in the present case, where of course it is central to the resolution of the issue, and not obiter. It must, of course, be read in the context of the limiting statement also to be found in my judgment in Braddish (at p. 159):-
'It would be difficult to think of evidence more directly relevant than a purported video tape showing the commission of the crime. But in cases where the evidence is not of such direct and manifest relevance, the duty to preserve and disclose has to be interpreted in a fair and reasonable manner. It must be recalled that, in the words of Lynch J., the duty to preserve evidence is to do so "so far as is necessary and practicable". A duty so qualified cannot be precisely or exhaustively defined in words of general application. Certainly, it cannot be
interpreted as requiring the Gardaí to engage in disproportionate commitment of manpower or resources in an exhaustive search for every conceivable kind of evidence. The duty must be interpreted realistically on the facts of each case.'"
The learned judge went on to express the hope (at p. 259):-
". . . that no remote, theoretical or fanciful possibility will lead to the prohibition of a trial."
The facts of Dunne v. D.P.P. were not altogether dissimilar from those of Braddish, although in the former case, where the decision of this Court not to prohibit a trial was also reversed, there was a degree of uncertainty as to whether the video material had ever come into the actual possession of the Gardaí or not.
In that case, the applicant was charged with robbery of a petrol station. Various areas of the petrol station were covered by video camera surveillance. On previous occasions relevant video tapes from the petrol station had been acquired by the Gardaí in the course of other investigations. The owner of the petrol station could not recall whether the Gardaí had requested or obtained the video tapes of the alleged robbery. The officer in charge of the investigation, who was not present at the petrol station on the night in question, swore in affidavit that no video tapes of the robbery were given to or obtained by the investigating Gardaí. This was also a case where the accused had allegedly made a statement admitting the particular offence.
In the course of his judgment, Hardiman J. stated as follows (at p. 257):-
"I would also add that, in my view, parting with the possession of a video tape, or failing to take possession of it in the first place, can
never be justified solely on the basis that a garda has formed the view that the tape is not helpful or is unlikely to be helpful.
Further, if, on the balance of probabilities, video evidence is likely to have been available, I believe that there is an onus on the Gardaí or the Director to give some explanation as to why it was not sought or obtained."
The strong views of Hardiman J. in Braddish and Dunne (as so described in the subsequent Supreme Court decision in McKeown v. Judges of the Dublin Circuit Court and D.P.P. (Unreported, Supreme Court, 9th April, 2003)), are tempered somewhat not only by his own qualifications to same but also by the judgment of McGuinness, J. who, in the course of her judgment in Dunne , while agreeing with Hardiman J., stated:-
"Where a court would be asked to prohibit a trial on the grounds that there was an alleged failure to seek out evidence, it would have to be shown that any such evidence would be clearly relevant, that there was at least a strong probability that the evidence was available, and that it would in reality have a bearing on the guilt or innocence of the accused person. It would also be necessary to demonstrate that its absence created a real risk of an unfair trial."
This formulation of the test found favour with the Court of Criminal Appeal in D.P.P. v. O'Brien (Unreported, C.C.A., 27th January, 2003). In his dissenting judgment in Dunne v. D.P.P., Fennelly J. expressed concern with any development in the law which wo-uld bring about a situation that a real and serious risk to a fair trial would be deemed to arise whenever an accused person might be in a position to show
that the Gardaí had failed to seek out evidence which would have had a potential bearing on the innocence of the accused. At p. 277 he stated:-
"The more important issue is that Hardiman J. says that the principle enunciated in Braddish is 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.' (emphasis added)
On the facts of Braddish, the video evidence had actually been in the possession of the Gardaí. For that reason, the decision of the Court was consistent with the line of authorities commencing with the judgment of Lynch J. in Murphy v. Director of Public Prosecutions where the passage just cited goes further so as to encompass evidence which the Gardaí should have sought out, I believe it is obiter. More importantly, it represents a very significant new step in the law. The passage states that the Gardaí are under a duty to 'seek out and preserve all evidence having a bearing or potential bearing on the issue of guilt or innocence'. That is no doubt a reasonable statement of the duties of policemen in the performance of their work. It does not, however, necessarily follow that, where an accused person is in a position to show that the Gardaí have failed to seek evidence which would have had a potential bearing on the innocence of the accused, that will suffice to meet the test of a real and serious risk to a fair trial. On such an assumption, a trial will be prohibited, wherever a court
can be persuaded that the Gardaí failed to seek out any identifiable evidence which might even possibly tend to exonerate the accused. I cannot agree that our criminal law should go so far. It is difficult to say where the line will be drawn. Giving the increasing prevalence of CCTV in our towns, it is to be anticipated that there will be a rash of applications for prohibition wherever video evidence is not produced. Even where it has not covered the crime scene, why should it not be arguable that video recordings of activity in surrounding areas should be obtained. The danger is that there will develop a tendency to shift the focus of criminal prosecution on to the adequacy of the police investigation rather than the guilt or innocence of the accused."
In the subsequent case of Bowes v. D.P.P. (Unreported, Supreme Court, 6th February, 2003), this debate was revisited in cases which concerned the loss of a motor car and motor cycle respectively. They were not video evidence cases.
In the course of his judgment, Hardiman J. (with whom the other members of the Court agreed), went to some pains to explain that the role of the Court was not that of some sort of disciplinary tribunal over the conduct of investigations. At p. 17 he stated:-
"The submissions of the respondent at least hinted at a more general criticism of the ratio of Braddish. This is based on a misinterpretation of it as extending to the proposition that a trial may be prohibited on the sole basis that there was some shortcoming in the investigation so that the hearing of the application is, in the words of the respondent's submissions, 'a species of disciplinary tribunal over the conduct of
investigation'. This view is simply not maintainable on the basis of the judgments in Braddish or any other case. In Dunne, the fault based test adopted by the English Divisional Court in Ebrahim v. Feltham Magistrates Court (2001) 1 All ER 831, was specifically rejected and it was said at p. 257:-
'The "real risk of an unfair trial" (test), on the other hand, does not necessarily involve blaming any person. The main focus in these applications should be on the fairness of the intended trial without the missing evidence, and not on whose fault it is that the evidence is missing, and what the degree of that fault may be. The latter factors, however, are not always irrelevant'.
Later in my judgment in that case I said:-
'Like Fennelly J., I do not consider that a trial should be prohibited merely because the police can be shown in a particular respect to have fallen short (of the proper standards of investigation)'.
I added 'There is also responsibility on a defendant's advisers, with their special knowledge and information, to request material thought by them to be relevant.'"
The most recent Supreme Court decision of relevance to this debate is McKeown v. The Judges of the Dublin Circuit Court and the D.P.P. (Unreported, Supreme Court, 9th April, 2003), in which McCracken J., (in a judgment in which all
members of the Court agreed), stressed the duty of the Court on an application of this nature to maintain and keep a reasonable balance. At p. 9 of the Court's judgment he stated:-
"The jurisdiction of the High Court to prohibit a trial is based on the basic and constitutional right of an accused to a fair trial. It is the duty of the Court to keep a reasonable balance between the obligation of the prosecution to present as strong a case as possible against wrongdoers, and the right of an accused to defend himself and in so doing, by all legal means, to attempt to show that there may be a reasonable doubt as to his guilt or innocence. The Gardaí are, of course, independent of both the Director of Public Prosecutions and the accused. That they must act independently seems to me to be part of the foundation of our system of justice, and I have no doubt that there is an obligation on the Gardaí to disclose to both the prosecution and the defence all matters which might be of assistance either to the prosecution or to the defence. It should be noted, that in indictable offences such as this, it is for the Director of Public Prosecutions and not for the Gardaí to decide what evidence will be used against an accused. I fully accept that these principles must be tempered by the application of the concept of reasonableness. There obviously are limits to the lengths to which the Gardaí must go in either seeking out or preserving evidence. To that extent each case must be judged on its own facts . . ."
In a passage which is of some relevance to the instant case, McCracken J. continued as follows (at p. 10):-
"To return to the facts in the present case, the motor car, indeed with the petrol can in it, was returned to the owner of the motor car the day after the incident without any forensic examination having taken place. While the Gardaí may have been satisfied in their own minds that their belief that they saw the applicant getting out of a stolen car in the early hours of the morning, attempting to leave the scene and ultimately assaulting the Gardaí was sufficient to obtain a conviction, I would strongly emphasise that that is not the test. The question is not whether the Gardaí might want to use any available evidence, or might wish to assist the Director of Public Prosecutions by producing it, but rather whether this evidence, even if it is not to be used by the prosecution, could be of assistance to the defence. If a person is accused of driving a stolen motor car, quite clearly that car is often a vital piece of evidence. If the car could provide potential evidence favourable to the defence, it should certainly be made available to the accused person or his advisors where reasonably practicable before being returned to the owner. Regard must be had to the practicalities, and in particular to the rights of the unfortunate owner of a stolen car who obviously is entitled to have it returned to him as quickly as possible. These practicalities must be judged on the facts of each case."
However, useful as it is to have these principles emphasising 'reasonableness' further clarified by the Supreme Court, it seems to me that my decision on the facts of the instant case is greatly facilitated by the judgment delivered by Geoghegan J. in Mitchell v. D.P.P. [2000] 2 I.L.R.M. 396.
In that case the applicant contended that the Garda video recording system in operation in the Temple Bar area of Dublin and the video system in a restaurant in Westmoreland Street, were in a position to record matters which could have been of crucial assistance to him in defending certain charges. The applicant contended that he had a right to be informed of the existence of such evidence before it was destroyed and in the absence of that evidence he could not now receive a fair trial. The applicant also sought declaratory relief regarding his purported right to be informed as to the existence of video evidence and the right to have an opportunity to examine it.
The respondent contended that it was both unnecessary and impractical for the Gardaí to have retained custody of the video recordings at issue, since the evidence was that neither video recording contained any relevant data and the applicant had made no request to either retain or view the video recordings for a fourteen month period from the date he was charged.
In refusing the application to halt the trial, Geoghegan J. held that the video tape taken at the restaurant was privately owned and the Gardaí accepted, as they were entitled to, that the camera in the restaurant had not been pointing in a direction that would be useful to their investigations. Under the circumstances, it was going too far to assert that the respondent, before permitting the destruction of the tapes (which would have required taking possession of the tapes) was required to give the applicant
adequate notice of the intention to destroy the tapes. Secondly, regarding the Garda operated video recording system linked to cameras on the public streets, Geoghegan J. held that the applicant went too far in suggesting that once an offence is committed on a part of a street which is covered by the system, it is necessary to retain the tapes and ensure they are not destroyed unless adequate notice was given to the accused. Such a standard would be impossible to implement and the Gardaí are entitled to discard certain physical evidence as irrelevant.
At p. 398 of his judgment, Geoghegan J. stated:-
I think that Mr. Ó Lideadha makes a valid point that issues relating to video evidence give rise to new questions for consideration and that the whole culture of the proliferation of video recording systems in shops and on the streets is relatively new and that the legal implications of this has probably not been explored fully. I would accept that, and these remarks are obviously obiter dicta, as a general proposition, there would be cases where the Gardaí, in the interests of justice and fair procedure, would quite definitely be obliged to inform an accused person of the existence of video evidence and notify him of an intention to destroy that video evidence. An example is where the Gardaí fully intended in the first instance to use the video evidence in the investigation or prosecution of the offence and then subsequently decided not to do so. But I think the duty goes beyond such a situation. For example, where Gardaí take away tapes (say from a shop) and retain them for a period on the basis that they may arguably be of evidential value but subsequently decide that the tapes would not be
used by them, a requirement to inform the accused person before the tapes were destroyed or erased arises.
However, it seems to me that this case is quite different. In respect of the restaurant, one is dealing with privately owned video tapes from a camera and associated video equipment owned by the restaurateur. It is clear from the evidence that the Gardaí accepted that the camera in the restaurant was directed in the wrong direction and that therefore the tapes from that camera were of no use. Having formed that view, I think it is farfetched and going too far to hold that the Director of Public Prosecutions, before permitting the destruction of the tapes (which would require the Director of Public Prosecutions taking possession of the tapes) is required to give the accused adequate notice of the intention to destroy the tapes.
Regarding the Garda operated video recording systems linked to cameras on the public streets, the suggestion made on behalf of the applicant is that once an offence is committed on a part of a street (or possibly in a premises on such a street) which is covered by the video recording system, it is necessary to retain the tapes and ensure that they are not destroyed unless adequate notice is given to the accused. Again I think that is going too far. Following on any crime in the ordinary course, Gardaí go to the scene of the crime and make initial decisions (whether they be right or wrong) that certain physical evidence is not relevant, for example physical items which may be movable, structures or marks left behind. On foot of those decisions
the Gardaí may leave such items alone and do nothing about them. I think such situations are analogous to the circumstances under consideration in these proceedings. From a sheer practical point of view, the applicant's contention would be impossible to implement. There may be many crimes committed on a particular night in locations covered by the Garda video recording systems. The idea that all such tapes would have to be kept for considerable periods and each accused informed of their existence is not practicable. It may be that the tapes would not have to be kept for a long time. Notice could then be given quickly enough. I have already indicated that it may be necessary to give such notice where tapes have been taken in circumstances where it was genuinely considered that such tapes might be relevant to criminal proceedings. There are circumstances where there might be a duty to give such notification before the tapes were destroyed and there would always be such a duty if the Gardaí were asked to keep such a tape in accordance with the principles set out in the decision of Lynch J. in Murphy v. D.P.P. [1989] I.L.R.M. 71. However, that does not arise in this case."
This decision confirms my own view that, where evidence has either not been obtained or been lost, which it is contended might have some relevance in establishing guilt or innocence, the Court should not too quickly yield to an application to prohibit a trial, and indeed should not accede to such an application where an explanation is forthcoming for the absence of the evidence and that explanation establishes to the satisfaction of the Court that the evidence or material could have no possible bearing on the guilt or innocence of the accused. The judgment also makes it clear that,
subject to the qualifications clearly spelt out by Geoghegan J., the Gardaí must be allowed to function and perform their duties without having impossible requirements heaped upon them. In that case, as in this, the video camera could yield up nothing useful for the reasons stated. On it being established that there is no actual prejudice to an applicant there is, in my view, no basis for prohibiting a trial.
This judgment and the recent decision of the Supreme Court in McKeown reinforces my own view that some sort of commonsense parameters of reasonable practicality must govern any determination of the scope of the duty on the Gardaí when seeking out or preserving evidence. This must of necessity imply that some margin of appreciation be extended to Gardaí when investigating crime to determine what they may reasonably consider to have some possible relevance in establishing guilt or innocence. What is the alternative? Is it for the accused person or his legal advisers to dictate the parameters? Alternatively, must the Gardaí go on seeking out and preserving any and every possible piece of evidence which might, by the remotest chance, admit of being relevant in some fashion in a subsequent trial? I think not. To set the bar too high for Gardaí in seeking out and/or preserving evidence is more likely in my opinion to frustrate the administration of justice and due process than to uphold it. I am leaving altogether to one side considerations of malicious behaviour on the part of the Gardaí, or any kind of bad faith, which would render these observations entirely inapplicable. However, where a Garda bona fide exercises his judgment on reasonable grounds that a particular article or item could be of no conceivable benefit to an accused person, then it seems to me, that on proof of having met a requirement to establish that fact, an application for prohibition for its non-availability should not succeed.
It was, of course, possible that the mere presence of functioning video equipment at the Beechgrove Filling Station might have offered some possibility of producing evidence of relevance to one side or the other in this case. That is a far remove from saying that the video did record something of relevance which has now been lost or destroyed in such a way as to create the risk of an unfair trial.
Without attaching blame in any way to the applicant or his legal advisers for their incorrect assumption as to the scale or range of video equipment in operation on the 7th January, 2001 at Beechgrove Filling Station, the fact remains that the uncontroverted evidence on this application is to the effect that the video material was useless, providing nothing of relevance to either side, because nothing could be seen having regard to the time of night, the bad lighting at the scene and the poor quality of the equipment. As already pointed out, no application was made to cross-examine either Mr. McGovern or Sergeant Cadden as to the content of their affidavits and statements as to what they saw, or rather failed to see, when reviewing the tapes on the night of the incident. There is no possibility, for the reasons described, that anything of value could have emerged from the video and a full explanation has been afforded to the Court to explain why the video material was not retained.
The Garda evidence on this point is corroborated not only by the evidence of Mr. McGovern, but also by the other material in the papers which clearly indicates that the applicant was apprehended and charged in January of the following year, not because of anything on the video footage, but rather from information from what is described as 'a previously reliable source' which suggested that the applicant may have been involved in the robbery and was allegedly selling 'Ready to Go' mobile 'phone cards around the town of Drogheda.
There may well be cases, perhaps many cases, where the loss or destruction by the Gardaí of evidence which might be of relevance in the context of ensuring a fair trial, will lead to a prohibition order being made. However, the particular circumstances and facts of this case convince me that this is not one of them. I therefore refuse the application.
I would add only this. Where there has been delay in making the application, it does appear to me that where an applicant in a case of this nature has made a statement, albeit that it must still be seen as an alleged statement, it should be seen as a factor of relevance to be taken into account by the Court in exercising its judicial review discretion, particularly where the application for relief is being made, as in the present case, at the eleventh hour. In B. v. Director of Public Prosecutions [1997] 3 I.R. 140 at p. 202, the following passage occurs:-
"(g) Admission of Guilt
If there has been an admission by the accused of all or any of the alleged crimes this would be a factor for consideration. If the admission is contested that is also a matter to be considered by the Court on an application to prohibit the trial on the ground of delay."
This approach was also followed by Lynch J. in P.C. v D.P.P. [1999] 2 I.R. (at p. 80). I can see no reason why a similar approach should not be followed in cases such as the present one. However, I am not adopting this view as part of my decision in this case because, although delay was canvassed as a reason for refusing relief, the role of an alleged inculpatory statement in that context by an accused person who applies for prohibition was not the subject of detailed debate. It must therefore remain over to be more fully dealt with in some other case.