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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Sirbu -v- The Director of Public Prosecutions [2015] IEHC 204 (20 March 2015)
URL: http://www.bailii.org/ie/cases/IEHC/2015/H204.html
Cite as: [2015] IEHC 204
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Judgment
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Neutral Citation: [2015] IEHC 204 THE HIGH COURT JUDICIAL REVIEW [2013 No. 971 J.R.] BETWEEN VALERIU SIRBU APPLICANT AND
THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT JUDGMENT of Ms. Justice Baker delivered on the 20th day of March, 2015 1. This is a “missing evidence” case. By order of the 20th December, 2013 Peart J. granted leave to the applicant to apply for an order of prohibition by way of judicial review restraining further prosecution of the applicant for assault in proceedings currently before Dublin Circuit Criminal Court entitled the DPP v. Valeriu Sirbu, Bill No. 867/2013, on the grounds that it would be unfair if the trial proceeded absent the opportunity to view and consider relevant CCTV footage in respect of the incident giving rise to the charge. 2. The grounds on which the leave was granted were that the DPP had failed to preserve materially relevant CCTV footage which was seen by prosecution witnesses, but was lost soon afterwards, and before the defence had an opportunity to see the footage, have it examined by an expert or have it enhanced, and that this loss means that the applicant is unable to present a full defence and is being deprived of potentially exculpatory evidence. Facts 3. The charge arises from an incident that is alleged to have occurred on the 14th December, 2012 at a Christmas Party at which the applicant and a work colleague attended. The allegation is that the applicant assaulted his work colleague causing him serious injury and the charge is brought under s. 3 of the Non Fatal Offences Against the Person Act, 1997. There was no witness to the incident and the injured party has no recollection of the incident himself. The applicant does not deny that an altercation took place, but says that the incident arose as a result of his effort to defend himself upon being attacked by his work colleague. The DPP has directed trial on indictment. 4. The factual basis of this application is straightforward. It is common case that a CCTV camera was positioned and operating in the location outside the public house where the incident is alleged to have occurred and the Garda Síochána attended at the licensed premises on the day after the incident and viewed the footage. Two Gardaí viewed the footage, Garda Ciara Geraghty and Garda Eamonn McFadden. A statement of each is contained in the book of evidence. Two other persons also viewed the CCTV footage on the following day, the 17th December, they being one Tony Rice, the Finance Director of the company which employed both men, and Mr Martin McNulty the owner of the licensed premises in which the incident is stated to have occurred. Each of them has given statements which are contained in the book of evidence. 5. The respondent asserts that Garda Geraghty was told on the 15th December, 2012, the day after the alleged incident, that there was no risk that the CCTV footage would be immediately deleted or overwritten but when an attempt was made to download the footage with technical expertise on the 26th December, 2012 it became clear that the footage had been deleted by being overwritten by later recordings. The Gardaí have given evidence that they made attempts between the 20th December, 2012 and the 24th December, 2012 to contact the installer of the CCTV with a view to downloading the footage, but could not contact him. 6. One relevant factor is that the day after the incident Gardaí, having interviewed the alleged victim, knew that he had no memory of the event and also knew that the applicant was asserting that the incident that occurred arose as a result of self defence. Accordingly, it was clear from the outset of the investigation that the CCTV footage was central to the investigation, and to both prosecution and defence. Arguments of Counsel 8. The respondent asserts that any frailty in the process can be cured by the trial judge and that the jurisprudence of these courts would suggest that the right to a fair trial is a right of trial in accordance with law, and that that right is more properly preserved and engaged by permitting the trial to go ahead. It is asserted that the High Court should intervene only in exceptional cases and should be guided by the first principle of criminal justice, namely that a person is entitled to be tried in accordance with law. It is asserted that the applicant can assert a defence of self defence at trial and there is no risk of an unfair trial, particularly as the judge can rule out the secondary evidence in the form of commentary on the CCTV footage. 9. The applicant says that there is a real risk of an unfair trial that is neither remote nor fanciful and, while the trial judge can rule out secondary evidence, the injustice has already crystallised in that the applicant has lost the benefit of having the footage to support his preparation for trial and to also deal with his very specific defence to the charge. It is pointed out that there is no secondary evidence in the form of photo stills or other witnesses. It is asserted further that in total four witnesses have seen the CCTV footage and that this puts the applicant at a distinct disadvantage. The Law
12. The applicant relies on this general statement of law with regard both to the importance of the CCTV footage itself, and the duty of the Gardaí to preserve the CCTV footage which it is asserted was not done in this case. An exceptional remedy
15. A number of judgments have followed on from the judgment of the Braddish v. DPP and one factor that can be gleaned from these cases is the extent to which the courts regard the individual factors in a case as central to its decision. 16. The Supreme Court has fully considered the principles applicable in the recent case of Wall v. DPP [2013] IESC 56. Denham C.J. set out the principles that should be applied in lost evidence cases which she had already identified and reviewed in an earlier case of Savage v. DPP [2008] IESC 39. The principles which she identified in ten numbered paragraphs bear repeating:-
(ii) it is the court’s duty to protect due process; (iii) it is the duty of An Garda Síochána to preserve and disclose material evidence; (iv) this duty to preserve and disclose material evidence is to do so as far as is necessary and practicable; (v) the duty to disclose and preserve, as qualified by Lynch J. in Murphy v. Director of Public Prosecutions [1989] I.L.R.M. 71 cannot be precisely defined as it is dependent on all the circumstances of the case; (vi) the duty does not require the gardaí to engage in a disproportionate commitment of manpower and resources; (vii) in the alternative to keeping large physical objects as evidence, such as motor vehicles, it may be reasonable in certain circumstances for the gardaí to have a forensic report on the object; (viii) the duty should be interpreted in a practical manner on the facts of the case; (ix) if evidence is destroyed the reason for the destruction, whether bona fide or mala fide , is part of the matrix of the facts, but it is not a relevant factor in the test to be applied by the court; (x) all of the above are subject to the fundamental test to be applied by the court, that of “real risk” as described by Finlay C.J. in Z. v. Director of Public Prosecutions [1994] 2 I.R. 476 at p. 506”. 18. Clarke J. in that case made the point that a “decent piece of CCTV footage” can make the task both of the judge and jury, and one might extrapolate from this the task of the defence and prosecution, much easier, but he pointed out that the mere absence of CCTV footage due to happenstance could not of itself mean that a trial ought to be stopped, or because an accused could not get a fair trial. The starting point is fairness, and an applicant has to show unfairness, what he described as “the unfairness of a person being tried in the absence of evidence which ought to be available.” 19. To satisfy the test, then, an applicant must show unfairness arising from the absence of evidence which ought to be available and that the unfairness cannot be avoided. This is not to say that if it can be shown that the Gardaí were at fault in not preserving or seeking out evidence that a trial must be stopped merely on that account, but only if it can be shown that the evidence which was not preserved or sought out was important to the extent that it ought to have been available in order to ensure fairness. 20. McMenamin J. in Stirling v. DPP [2014] IESC 13 further elucidated the question in describing the relevant material as being that “plainly within the reasonably scope of the investigation”. In that case CCTV had allegedly captured the applicant in the commission of an offence but the CCTV footage was lost. The DPP sought to rely on the evidence of the Garda who had viewed the footage but the Supreme Court prohibited the prosecution. McMenamin J. stated the following point of principle:-
21. It seems to me that the judgment of McMenamin J. in Stirling v. DPP is very much on point. In this case there is no primary evidence for the prosecution save the evidence of the persons who viewed the now lost CCTV footage. As in Braddish v. DPP and Ludlow v. DPP [2008] IESC 54, the missing evidence is central to the case. 22. The accused identified his defence early, and admitted that he hit his workmate. He engaged with the specifics, and this application cannot be criticised and cannot be said to be opportunistic as occurred in Byrne v. DPP. The Gardaí knew the day after the incident that there were no witnesses to the incident and that the CCTV footage would not just be important but central to the prosecution and defence cases. The evidence now available is secondary to lost and important primary evidence where there is no other objectively ascertainable means of establishing the veracity of the secondary evidence, such as might be the case were there to be available stills, as in McFarlane v. DPP where there was objectively verifiable and preserved evidence in the form of photographs of fingerprints which were available and objectively speaking suitable for the purposes of comparison. 23. Counsel for the DPP argues that it is possible to distinguish Stirling v. DPP and Wall v. DPP in that the only evidence in those cases was the CCTV footage and it was on that basis that the prosecution was prohibited. The only building block in that case was that evidence and accordingly it was intrinsically unfair to allow the prosecution to proceed. It is argued that there is other evidence here, albeit that it is evidence of an exculpatory statement. 24. It must be noted in that context that the courts have on many occasions expressed their disquiet in convicting on the basis of an uncorroborated statement only. In essence the only building block other than the evidence of those who viewed the CCTV footage in this case is an uncorroborated statement of Mr Sirbu which itself does not admit an offence but admits the incident. The evidence that is available to the prosecution in this case is the evidence of two Gardaí and two other lay witnesses who viewed the CCTV footage before it was destroyed. They to some extent might be seen as a class of bystander, or persons who could give evidence similar to or equivalent to eye witness accounts. The question for me is whether allowing that evidence to be given creates an unfairness to the accused. 25. An opportunity has been lost to enable the applicant himself to view the CCTV footage for the purposes of the preparation of his defence, and indeed I accept the argument made on his behalf that he has lost the opportunity to have the assistance of an expert to enhance, analyse or otherwise examine the footage for the purposes of preparing his defence. The applicant has engaged with the evidence and admits that he hit his work colleague, and he has given a cautioned statement in which he so admits the incident, but says, however, that the incident arose wholly as a result of his efforts to defend himself and that his work colleague struck or attempted to strike first. 26. The answer will come down to the way in which this evidence may be tested by the accused in cross examination. The accused is not in a position where either he or any person who acts for him, or any person who might give evidence on his behalf, has seen the CCTV footage, so he is it seems to me hampered in the cross examination of the evidence of those persons who did see the footage, he may not challenge them as to precisely what they saw in the footage, and he may not challenge their recollection of the footage as there is no objectively verifiable means by which the accused may ascertain what was visible or what ought to have been visible on that footage. The prosecution will have an advantage in being able to give evidence of what was seen on the CCTV footage, and I consider that this does create an unfair disadvantage because there is no means by which the accused may challenge or test the evidence of the persons who saw the footage. Had there been other eye witnesses who actually witnessed the incident, his or her evidence could be used as a basis of testing of the prosecution witnesses, but none such exists. 27. Another factor that weighs on my mind is the fact that there is some dispute between the evidence on affidavit before me as to the quality of the CCTV footage. Mr McNulty, the owner of the bar, says that the quality was poor, and Mr Rice, the financial director of the company which employed both men, says the quality was good. The quality of the picture seen on the CCTV footage might have given scope for cross examination of the witnesses who saw the footage, but the accused may not prepare such cross examination with the benefit of any knowledge of the condition of the picture and whether it was a good or blurred image. Thus the evidence was what was seen on the CCTV may not properly be tested with regard to its quality, although I accept that the credibility of the witnesses as to their recollection of that quality may be tested. 28. The lost evidence here may be advantageous to either the applicant, the accused, or to the DPP. It is not my function to speculate or extrapolate from what is said in the affidavits as to whether the evidence will benefit one or other side or whether it is more likely than not to lead to an acquittal or conviction. The limit of my focus is whether there is a possible unfairness in the advantage that one side might gain from the fact that the evidence is missing, and I consider that there is a possible unfairness arising in the circumstances. Is the unfairness unavoidable? 30. I do not consider that the unfairness that arises in this case can be dealt with by the trial judge by giving directions or excluding certain evidence. This is because the unfairness arises at the very root of the prosecution case, and the prosecution have, as a result of being able to proffer witnesses who have seen the CCTV footage, gained an advantage in respect of which the defence may not redress the balance, by seeking to test the evidence by cross examination. 31. CCTV footage is evidence which may of itself be determinative of an issue in a trial, and it takes the form of evidence which has become frozen or crystallised in time and is not subject to the frailty of memory which may be influenced or flavoured by the emotion of the moment, or the colouring of later recollection. 32. The prosecution witnesses who have seen the CCTV footage will be able to offer secondary evidence of viewing the incident on CCTV after it was known a man was hospitalised as a result of an incident and where the footage was seen away from the heat of the moment, and the tendering of that evidence without any objective or independent means by which the accused may test it, leaves the accused in an unavoidable position of having an evidential deficit where his own memory now two years after the event is undoubtedly tempered by the passage of time, the fact that he admits to have been drinking on the evening in question, the fact that he will in his attempts to recollect the incident have telescoped or erased some of his recollection. This means that his memory of the event is potentially more fragile and less robust than that which might be tendered by the prosecution witnesses from the CCTV footage That particular imbalance or frailty is such that in my view it cannot be resolved by any directions given by the trial judge or the exclusion by him or her of any evidence on behalf of the prosecution. 33. Whatever way the question is posed a disadvantage arises in regard to one or other of the parties. That disadvantage is of itself an unfairness which is of a sufficient degree to justify me in making an order, admittedly one that is made in exceptional circumstances, to prevent this trial proceeding. The circumstances of this case are highly unusual, and a more modern CCTV footage does not get deleted, not is it usual that one party to a trial has viewed footage that is no longer available in either primary or secondary form to the other side, and where no witnesses of the incident are available to the incident in respect of which the charge is brought. 34. Accordingly, I make an order of prohibition by way of judicial review restraining further prosecution of the applicant in the form of paragraph (ii) in the amended statement of grounds. |