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Cite as: [2002] IESC 80

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THE SUPREME COURT

JUDICIAL REVIEW

McGuinness J

Hardiman J

Fennelly J

142/2001

BETWEEN

ROBERT DUNNE

Applicant

-and-

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

JUDGMENT delivered the 25th day of April, 2002 by FENNELLY J.

This case is concerned with an important development in our criminal law.

The courts have, in recent years, established 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 in which that may occur is where evidence, capable of exonerating the accused person, has been destroyed or has otherwise ceased to be available.

In the present case, the appellant has failed to persuade the learned trial judge, Kearns J, that his trial should be prohibited. He has appealed against that decision.

THE FACTS

On 18th January 1998, a robbery took place at the service hatch of the Parkway Services filling station in Palmerstown, Co Dublin. At about 6.00 pm, three youths, one armed with a knife, approached the hatch and demanded money from the female attendant.

She handed over some £300 cash and cigarettes and the culprits made their escape.

This was but one of a number of similar incidents at the premises. There was a video surveillance system in operation. A number of cameras covered the forecourt area, the inside of the shop and the till area including the service hatch. This is the crucial feature of the evidence in this case and I will return to it in more detail .

The appellant did not come under suspicion until the month of March 1998. Detective Garda Denis Kenny of Ronanstown Garda Station Detective Unit learned in March that the appellant was being detained at Clondalkin Garda Station under section 30 of the Offences Against the State Act in connection with firearms offences. He had received other information which caused him to go there and to question the appellant. It is alleged that the appellant made a signed statement of admission to the Parkway robbery, which I will refer to as the robbery. He was, nonetheless, released without charge.

On 11th August 1998, the appellant was charged with the robbery, while he was appearing before the Dublin Metropolitan District Court on other matters.

CRIMINAL PROCEEDINGS

Following the charge, a book of evidence was served on 10th November 1998. There was no evidence against the appellant other than the alleged written statement. He was returned for trial to Dublin Circuit Criminal Court and was arraigned on 16th December

1998. His trial was subsequently fixed for 28th January. He was also charged and arraigned in respect of the separate robbery at Clondalkin.

On 28th January 1999, the appellant's solicitor obtained an adjournment of the trial in order to permit his advisers to view a video recording of the robbery at Clondalkin with which the appellant was also charged. It appears that the purpose of this intended inspection was to test whether there had been sufficient reasonable suspicion to justify the appellant's detention in March 1998, because it was on that occasion that the appellant was alleged to have made the statement of admission to the robbery. Detective Garda Kenny, in his affidavit, swears that there was no mention of any video at Parkway.

On 29th January 1999, the appellant's solicitors wrote to the Chief State Solicitor asking for a copy of all video recordings made at the Parkway premises from 4 p.m. on 18th January 1998 up to and including thirty minutes after the time of the offence. Following two reminders, the Chief State Solicitor's Office wrote to say that copies of all videos in their possession and in the possession of the Garda Siochana had been supplied. Some had, indeed been supplied but none in relation to Parkway.

THE PROCEEDINGS

The judicial review proceedings, of which the present appeal forms part, were preceded and accompanied by attempts by the appellant to obtain discovery of copies of the videos. The most detailed account of the video issue arises from the material before the courts on those applications. I will, therefore, summarise them.

Firstly, in July 1999, the appellant brought an application in the context of his impending trial in the Circuit Court for discovery, specifying the video. Originally, it had been contended on behalf of the appellant that Brian Torley, the manager of the Parkway Service station, had handed the video to Detective Garda Kenny. An affidavit to that effect was sworn by the solicitor for the appellant based on a conversation with Mr Torley. It later became clear that this was not correct, as Mr Torley had never met Detective Garda Kenny. In the result, the appellant relied in the Circuit Court on an affidavit of Mr Torley. Apart from deposing to the existence of the video system over the relevant months as already described, Mr Torley said that there was a standard procedure in the event of a robbery. The Gardai would be notified by the pressing of a panic button and would arrive and view the video. The video tape would be given to the Gardai. He said that he was certain that the video system was in operation at the time of the robbery and was "likely to have captured the events immediately prior to and subsequent to same, including the culprits moving to and from the said hatch area. " He said he did not recall the particular robbery as there were a number of them, but that it was unlikely that the procedure had not been followed. He repeated that the Gardai were fully aware of the system and had taken away video tapes in respect of less serious events and in respect of periods during which no crime was committed. In response to that application in the Circuit Court Detective Garda Kenny swore that the "video was never given to or obtained by any member of the Garda Siochana connected with the Investigation of this case or otherwise. " Counsel for the appellant applied for leave to cross-examine Detective Garda Kenny but this was refused by Her Honour Judge Dunne, who decided that she could not conclude that there was in existence a video as described. She refused the application for discovery.

On 29th July 1999, the appellant applied in the High Court for leave to apply for judicial review taking the form of prohibition of the Director of Public Prosecutions ("the DPP") from pursuing the prosecution. This was refused by Geoghegan J but leave to seek judicial review was granted by this court on appeal on 5th November, 1999. The appeal was supported by written submissions which summarised the reliefs sought as follows:

(i) an Order prohibiting a trial in the Circuit Criminal Court in which the Applicant is accused of committing robbery of a service station;

(ii) a declaration that the Applicant was entitled to an opportunity to inspect a video of the location of the robbery;

(iii) a declaration that the Respondent and the Gardai were obliged to preserve such video evidence.

The grounds were:

"3. Video cameras and a recording system were in use at the time of the said offence and covered the precise locus of the said offence and the surrounding areas

4. At all material times the Gardai had access to a copy of the video recording of the location and period of the said offence

5. On numerous occasion from September 1997 to June 1999 the Gardai requested and on all such occasions were given video recordings of offences which occurred at the said location or video recordings relating to matters which were unrelated to any offence committed on the said premises

6. The claim has been made on behalf of the Respondent that the said video recording is not in the possession of the Gardai

7. It appears that the said video recording will not be available for the trial in respect of the said prosecution

8. There is a reasonable possibility that the said video recording could have provided evidence which would have tended to exculpate the Applicant

9. The failure by the Gardai to preserve the said video recording until the Applicant had an opportunity to inspect same amounts 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"

The reliefs in respect of which leave was granted were set out in detail in the Statement Grounding the Application and included an injunction and broader declarations. The affidavit grounding the application for judicial review was sworn by the appellant's solicitor. He outlined the history of the matter which I have given. He exhibited the affidavit of Mr Torley which had been sworn for the Circuit Court application rather than have him re-swear it for the High Court. The Statement of Opposition was filed on 19th January 2000. Detective Garda Kenny swore a detailed affidavit on behalf of the respondent dealing with the video. He was the officer in charge of the prosecution. His affidavit contained the following two paragraphs:

"7. I do not have, nor have I ever had, in my possession, power or procurement, a copy of or any video tape purporting to record the incident the subject matter of the offence set out in Ronanstown Charge Sheet number 498/98. In particular, I say that, prior to May 10th 1999, I had no contact with Mr Brian Torley either as alleged.... or at all. By logical implication I therefore specifically deny that I ever received a copy of the said or any video recording from Mr Torley. In that regard, I say that after the applicant's application for discovery had been adjourned by Her Honour Judge Elizabeth Dunne of the Dublin Circuit Criminal Court sitting at Court number 24 on July 7th 1999, I met Mr Torley for the first time, who spontaneously admitted that he had never seen me before.

8. I further say and believe that, in so far as it may have ever existed, the video recording the subject matter of these proceedings was never given to or obtained by any member of An Garda Siochana connected with the investigation of this offence or otherwise. "

Later he added that "the alleged video recording was never in the possession of the prosecution. "

The appellant next sought discovery, within the context of the judicial review, not in respect of the video, but in respect of all documents relating to it and "original statements of all notes of all persons who participated in the investigation of the relevant offence including the Garda or Gardai who attended the location of the relevant offence ...." An order was made by Kelly J for discovery of all documents "... touching on the existence or non existence of a video of the incident the subject matter of the charge. " The affidavit of discovery sworn on behalf of the DPP by Detective Garda Kenny denies that any such documents had ever been in the custody or power of either himself or his solicitors or agents or of any other person or persons on his behalf.

THE HIGH COURT JUDGMENT

The learned trial judge considered the affidavit evidence. No oral evidence was given. He came to the conclusion that it was more likely than not that the investigating Gardai were given the tapes. lle thus purported to resolve, without hearing any oral evidence, a conflict in the affidavits, in effect rejecting the evidence of Detective Garda Kenny. However, he also said that there were possible innocent explanations such as that the equipment was not working on the night or that the tape was then or later accidentally erased. He considered, nonetheless, that there had been delay on behalf of the appellant in seeking the videos. He measured this by reference to the date of the offence (16th January 1998) and the first request for the tape (29th January 1999). This led him to exercise his discretion against the appellant.

THE APPEAL

The appellant submits that the courts will intervene to prevent a prosecution where there is a real risk that the trial will be unfair. Murphy v DPP [1989] I.L.R.M. 71 was a case where a motor car had been released by the Gardaf following their own forensic examination and notwithstanding an arrangement with the solicitors for the accused to permit them access to it for that purpose. Lynch J, in the High Court, held that, although nothing might have been found on the requested forensic examination, the accused had been deprived of the reasonable possibility of discovering evidence to rebut the prosecution case. He made an order prohibiting the trial. Relying on the recent decision of this Court in Braddish v DPP (Unreported 18th May 2001), and in particular the judgment of Hardiman J, the appellant argued that it was no excuse to say that the prosecution did not propose to rely on the evidence. The appellant has also complained throughout the proceedings that the DPP has relied on the evidence of Detective Garda Kenny, which is essentially hearsay, whereas no affidavits were sworn by the two Gardai who, in fact, investigated the offence.

The DPP challenges the conclusion of the learned trial judge that the video had probably been given to the Gardai. To avoid the necessity for an adjournment to remedy -the absence of any notice of cross-appeal or notice to vary on this issue, it is accepted that the Court may consider this argument. The DPP lays particular emphasis on the constitutional disposition of the prosecuting function. The Court must begin by assuming that every judge presiding over a criminal trial will take all necessary and appropriate steps to ensure that the trial is conducted in accordance with due process of law. Cases such as Z v DPP [1994] 2 I.R. 471, D v DPP [1994] 1 I.L.R.M. 435, Daly v DPP, Nolan v DPP [190413 I.R. 626, demonstrate that there must be a real and unavoidable risk to the fairness of a trial before the court will intervene to prevent a trial from taking place. Counsel for the DPP referred to an analysis of English cases of evidence rendered unavailable in the case of R (Ebrahim) v Feltham Magistrates' Court [2001] 1 W.L.R. 1293 and [2001] 1 All ER 831 dividing them into cases where it would be unfair to put a person on trial because there has been an abuse of process and where it would simply be unfair because the behaviour of the prosecution was such that no trial should take place.

CONCLUSION ON THE EVIDENCE

I will begin with some remarks about the evidence. Before doing so, I will comment on the stance and some of the arguments of the parties about the form of the evidence. It must be remembered that the proceedings take the form of judicial review, which are heard on affidavit. There are, no doubt, some imperfections attendant on this system of pleading. However, judicial review aims to achieve prompt and efficient resolution of challenges to the validity of administrative decisions. On occasion, as here, it involves review of steps in criminal proceedings. In a very great number of cases, the courts are asked to consider pure points of law. It is inherent in the nature of such proceedings that the evidence is taken on affidavit. It would be quite unreal and, in my view, wrong to expect that all the evidence will be given by those who have first hand knowledge of the matters at issue. In this case, for example, the affidavits on behalf of the appellant have, quite properly, been sworn by his solicitors. Equally, those on behalf of the DPP have been sworn by Detective Garda Kenny, the officer in charge of the investigation. Hardiman J. in his judgment in P O'C v DPP [2000] 3 I.R. 87, at 116 et seq., discusses the correct approach to the use of affidavit evidence in judicial review proceedings. Where, however, there are, as there are here, specific conflicts of fact, the courts do not resolve them on the affidavits. It may be necessary for the High Court judge, in order to do so, to receive oral evidence. (see P & F Sharpe v Dublin City and County Manager [1989] I.R. 701 at 719). Where a party wishes to challenge or enquire into an averment on affidavit by or behalf of an opposing party, he also has the right to serve a notice to cross-examine. Faced with a specific denial of a fact which he asserts, a party should avail of this possibility. It is not a matter of gamesmanship but of applying the rules.

In the present case, the appellant included, as en exhibit in his grounding affidavit, the affidavit of Mr Torley, which had been sworn in the Circuit Court. Counsel for the DPP argues that Mr Torley swore no affidavit in the judicial review. On the other hand, counsel for the appellant complains that the evidence of Detective Garda Kenny regarding the existence or Garda possession of the video is hearsay. In fact, the Court has before it, whether in the form of exhibits or affidavits sworn directly in the judicial review proceedings all the material which passed between the parties both in the Circuit Court and the High Court. That appears to have been the eminently practical approach taken by the learned trial judge to the evidence.

With regard to the nub of the case, he was not in a position to resolve the dispute as to whether the video had been in the possession of the Gardaf. I recall that Her Honour Judge Dunne was not able to resolve it in the Circuit Court. In my own view, this issue remains unresolved. The appellant has produced no direct evidence that the video was given to the Gardaf, but relies on inferences to be gathered from the evidence of Mr Torley. Detective Garda Kenny, on the other hand, swears positively that it was never in his possession or "of the prosecution. " His affidavit of discovery, as we have seen, related only to documents concerning the existence or non-existence of the video. In that respect, his averment is equally broad. In compliance with the obligations incumbent on him in swearing the affidavit of discovery on behalf of the DPP, he deposes that there are or were not at any time any such documents.

If it was to be claimed that there was some remaining gap in the evidence of Detective Garda Kenny, it could only have been resolved by oral evidence, perhaps in the form of an application to cross-examine. This was not done. Accepting as I do, that the affidavit of Mr Torley should be treated as being before the court, the same treatment should be accorded to Detective Garda Kenny's repeated statements and I do not think that Mr Torley can be said to negative the clear and repeated statements of Detective Garda Kenny that neither the video nor any record in connection with it was at any time in the possession of the prosecution. The appellant cannot simply ask the Court to disregard this evidence. On the authorities, it is clear that the burden of proof is on the appellant. As matters stand, therefore, in my view, it is clear that there was a system of video recording in place at the Parkway Service Station. The Gardai were fully aware of it. They could, presumably, have taken possession of it, but there is no evidence that they did so.

RELEVANT LEGAL PRINCIPLES

Under Article 30 section 3 of the Constitution, prosecutions are brought by the Attorney General, and now, by statute, the DPP on behalf of the People of Ireland. The justice that is to be administered by the courts established under the Constitution includes the trial of criminal offences. In that regard, Article 38 section 1 guarantees the right to be tried "in due course of law. " Accordingly, I accept the submission of the DPP that this Court should assume that every judge, until the contrary is clearly shown, will take all appropriate and necessary steps to ensure that a trial will be so conducted. It requires, in my view, something exceptional to persuade the courts to intervene to prevent a trial from taking place.

There are, of course, such cases. The criteria for such intervention should be clearly set out. I believe they are.

The cases in which trials have been prevented come under a number of headings. In some cases, it has been held that a prosecution has been so long delayed that a fair trial is no longer possible. Then there are cases, in which widespread adverse publicity has been held to make a fair trial impossible. Finally, there are cases, such as the present, where the destruction or unavailability of evidence is alleged to prejudice the chances of a fair trial. Different considerations affect the application of certain common principles to these three categories of case. The risks to the fairness of the trial may take different forms and may be to a greater or lesser extent remediable.

There is, nonetheless, a common thread which runs through them. It is that, in every case, the accused person has the right to a fair trial. Furthermore, although society at large has an interest in seeing that persons charged with criminal offences are brought to justice, in the event of conflict, the right of the accused is the superior one. Denham J stated in D v Director of Public Prosecutions [1994] 2 I.L.R.M. 435:

"The applicant's right to a fair trial is one of the most fundamental constitutional rights afforded to persons. On a hierarchy of constitutional rights it is a superior right. "

It does not follow, of course, that this right can be vindicated only by preventing a trial. On the contrary, in the vast majority of cases, it is precisely at trial that the court of trial is obliged to see that it is fully protected. In those cases where the High Court is asked to halt or prevent a trial, a test has been developed which has been applied to all three types of case.

The applicant for such an order must establish, the burden being on him, that there is "a real or serious risk" that he will not have a fair trial. (per Finlay C.J. in D v DPP, loc. cit., page 436 also per Keane C.J. in J O'C v DPP [2002] 3 I.R. 478 at 480). This was

qualified, also by Finlay C.J. in Z v Director of Public Prosecutions [1994] ILRM 481, at 499, by the statement that "it necessarily and inevitably means an unfair trial which cannot be avoided by appropriate rulings and directions on the part of the trial judge. " He added that, although the "risk is a real one .... the unfairness of trial must be an unavoidable unfairness of trial. "

The import of these latter remarks is that the court will have to be persuaded that the trial judge, even by adopting the very greatest care in the conduct of the trial, is likely to be unable to eradicate the taint of unfairness. To quote an Australian judgment, cited by Hamilton P, as he then was, in Z v DPP:

"To justify a permanent stay of criminal proceedings, there must be a permanent defect which goes to the root of the trial `of such a nature that nothing a trial judge can do in the conduct of the trial can relieve against its unfair consequences. "

Z v DPP was notable for the fact that, although it was accepted by both the President in the High Court and by this Court that the accused, facing charges of very serious sexual offences in a particularly sensational and notorious case, had been subjected to the most massive, sustained and relentless grossly prejudicial publicity, of which the members of the jury panel would inevitably be aware, both courts were, nonetheless, satisfied that it would be possible for the trial judge so to direct and warn the jury that any unfairness would be eliminated from the trial.

The specific decisions in this jurisdiction on cases such as the present, where evidence is or has become unavailable at the trial are smaller in number. Before dealing with them I will refer to the judgment of the Divisional Court of the Queen's Bench Division (Brooke LJ and Morison J) in R (Ebrahim) v Feltham Magistrates' Court (mentioned above) which gathers together a group of relevant instances. Firstly, the court distinguished a separate category of cases, not relevant here, where, by reason of the misbehaviour of the prosecution, it would be unfair to allow the case to proceed simply on that ground and not by reason of the fact that the trial itself would be unfair. The court continued:

"The first category of case is founded on the recognition that all courts with criminal jurisdiction, including magistrates' courts, have possessed a power to refuse to try a case, or to refuse to commit a defendant for trial, on the grounds of abuse of process, but only where it is clear that otherwise the defendant could not be fairly tried. An unfair trial would be an abuse of the court's process and a breach of article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. In these cases the focus of attention is on the question whether a fair trial of the defendant can be had.

Two well known principles are frequently invoked in this context when a court is invited to stay proceedings for abuse of process. (i) The ultimate objective of this discretionary power is to ensure that there is a fair trial according to law, which involves fairness both to the defendant and the prosecution, because the fairness of a trial is not all one-sided; it requires that those who are undoubtedly guilty should be convicted as well as that those about whose guilt there is any reasonable doubt should be acquitted. (ii) The trial process itself is equipped to deal with the bulk of the complaints on which applications for a stay are founded.

We have derived the first of these principles from the judgment of Sir Roger Ormrod in R v Derby Crown Court, Ex p Brooks 80 Cr App R 164, 169 and the second from the judgment of Lord Lane CJ in Attorney General's Reference (No 1 of 1990) [1992] QB 630, 644B-C. The circumstances in which any court will be able to conclude, with sufficient reasons, that a trial of a defendant will inevitably be unfair are likely to be few and far between. The power of a court to regulate the admissibility of evidence by the use of its powers and under section 78 of the Police and Criminal Evidence Act 1984 is one example of the inherent strength of the trial process itself to prevent unfairness. The court's attention can be drawn to any breaches by the police of the Codes of Practice under the Police and Criminal Evidence Act, and the court can be invited to exclude evidence where such breaches have occurred.

It must be remembered that it is a commonplace in criminal trials for a defendant to rely on "holes" in the prosecution case, for example, a failure to take fingerprints or a failure to submit evidential material to forensic examination. If, in such a case, there is sufficient credible evidence, apart from the missing evidence, which if believed, would justify a safe conviction, then a trial should proceed, leaving the defendant to seek to persuade the jury or justices not to convict because evidence which might otherwise have been available was not before the court through no fault of his. Often the absence of a video film or fingerprints of DNA material is likely to hamper the prosecution as much as the defence.

In relation to this type of case Lord Lane CJ said in Attorney General's Reference (No 1 of 1990) [1992] QB 630, 644A-B that 'no stay should be imposed unless the defendant shows on the balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held: in other words, that the continuance of the prosecution amounts to a misuse of the process of the court. "'

The court then proceeded to recount the facts and decisions in a number of cases in which there had been possible or actual video evidence from CCTV installations at crime scenes but which was or would be unavailable at trial. In some cases, courts of first instance, in the exercise of their own discretion, stayed proceedings and in others they did not. Generally, such decisions were upheld on appeal as being within discretion, but the picture is a confused one and there is no authoritative decision. It appears, nonetheless, that a criminal trial will be stayed in the event of risk to a fair trial provided that there is proven misbehaviour by the prosecution, but the latter appears to emerge as an essential feature in most of the cases.

It appears that the English courts recognise a jurisdiction in the trial court to stay a prosecution if there is a risk to the fairness of the trial. Hardiman J. deals with this issue extensively in his judgment. For my own part, I do not think that the passage cited from the judgment of Finlay C.J. in State (O'Connell) v Fawsitt [1986] I.R. 362 eliminates the possibility that a trial judge may order a stay on a prosecution before him. I would prefer to leave that matter for full argument on another occasion. It has not been argued in this appeal and does not affect the conclusions I express, though the extent of the availability of that remedy to ensure the fairness of the trial may be material to the question of whether an order of prohibition will be granted. There is a small but significant body of cases in this jurisdiction, to which I now turn.

The starting point, by common accord, is the judgment of Lynch J in the High Court in Murphy v DPP, cited above. The complaint of the accused was that the Gardai, in spite of a clear and specific arrangement with the solicitor for the accused that the car involved in the commission of the alleged offences would be available for inspection, disposed of it without notifying the solicitor. Lynch J posed for himself (page 75) the question: "In what way could the actions of the DPP be said to be contrary to fair procedures? " Having referred to the fact that the Gardai were aware at an early stage that the accused wished to inspect and test the car. He held (page 76) that "the Gardai's action in the circumstances, amounted] to a breach of the rule of fair procedures. "

In Daly v DPP, a case involving damage to a stolen car, (Supreme Court, Unreported 11th 1994) Finlay C.J. gave the unanimous judgment. The State P.S.V. Inspector had examined and another State expert had carried out a fingerprint examination in the month of April. The accused was not charged until the month of August. The accused complained of having been deprived of the opportunity to have an examination of the car to discover whether there were fingerprints which would show that he was not the driver of the car. In ruling that the case fell significantly short of the proof of an unavoidable risk of an unfair trial Finlay C.J. emphasised that, in Murphy v DPP, the Gardai had effectively promised an opportunity of a forensic examination, whereas, in the case of Daly, no application had been made on behalf of the accused for an examination or for forensic evidence. The judgment also shows that the principles to be applied are the same as those which apply in the case of alleged risk to an unfair trial by reason of adverse publicity, namely, repeating the dictum from Z v DPP and similar cases, that: "the Court can and should intervene but only if there is an unavoidable or inevitable unfair trial to be seen occurring, one which cannot be avoided by directions and proper charges given to a jury by a trial judge. "

In the same year, this Court also rejected an attempt to prevent a trial on the basis of missing evidence in Nolan V DPP [1994] 3 I.R. 626. The offences were charged under the Diseases of Animals Acts and alleged the introduction of turpentine into the bloodstream of cows for the purpose of affecting the accuracy of officially conducted tuberculosis tests. The cows had been slaughtered but the Department of Agriculture had taken samples from 22 of the carcases, which were then destroyed. The result was that the accused did not have an opportunity of testing them himself. The prosecution proposed to rely on the results of the tests. As the accused had not sought to have an examination carried out before the animals were destroyed, the case for the accused in seeking prohibition rested solely on a contention that his trial would be unfair and a breach of fair procedures because parts of the carcases examined for the state were not available to him. Blayney J gave the unanimous judgment of this Court. "The real issue" was, he said, "whether in the particular circumstances the State should be entitled to give evidence of the result of the tests carried out on the samples. " That, he concluded was essentially a "matter to be decided by the District Court Judge. " If he were to rule that the evidence should not be given, than any complaint of an unfair trial, "there could not be any question of the applicant's trial being unfair. " Furthermore, the Court noted that there was other potential evidence as disclosed in the book of evidence. The learned judge did not rule whether the trial would be unfair in the event that the District Court Judge were to admit the evidence. The core of the judgment was that that was a matter for the court of trial to decide. It is a necessary inference from the terms of the judgment that the Supreme Court saw no inherent unfairness in the prosecution being in a position to give evidence against the accused of tests on samples which had not been available to the accused.

Braddish is the most recent decision of this court. In that case, as in this, there was a video system in place. It was proved that, in fact, it filmed the robbery. An important distinction is, therefore, that the Detective Garda in charge had seen the video and claimed to have identified the accused. Indeed, it was on this basis that the accused was detained pursuant to section 4 of the Criminal Justice Act, 1984, during which detention he was alleged to have made a statement of admission. He was released and not charged until almost ten months later, by which stage the tape had been given back and wiped.

Hardiman J gave the judgment of this Court with which Denham and Geoghegan JJ agreed. He pointed out, firstly, that, if the accused wished to object, at his trial, to the legality of his detention and, since that was being justified on the basis of the Garda evidence of inspection of the video, it would not be possible for him to do so unless he had the video. He went on to say:

"More fundamentally, this is a video tape which purports actually to show the robbery in progress. It is not acceptable, in my view, to excuse the absence of so vital and direct apiece of evidence simply by saying that the prosecution are not relying on it, but prefer to rely on an alleged confession. Firstly, the confession is hotly disputed. Secondly, a confession should if possible be corroborated and relatively recent history both here and in the neighbouring jurisdiction has unfortunate examples of the risks of excessive reliance on confession evidence. Thirdly the video tape has a clear potential to exculpate as well as to inculpate.

This video tape was real evidence and the Gardai were not entitled to dispose of it before the trial. It is now admitted that they should not have done so. Lest however the sentence already quoted from the State Solicitor's letter (and which can only have been based on his instructions from the Gardai) can be read to suggest that because the prosecution was based wholly on an alleged confession, other items of evidence can be destroyed or rendered unavailable, I wish to state emphatically that this is not so. It is the duty of the Gardai, 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. "

I fully agree with that reasoning. The reasons advanced for the conclusion that the further trial of the applicant should be prohibited were twofold. The first does not appear to arise in this case. The detention of the appellant in this case on 11th March 1998 was not based in any way on the video of the robbery that is in issue in this case. The second is, in any event, the more important reason. It is that, the Gardai should not have destroyed evidence in their possession by giving it back to the shop owner. They should have preserved it so that the accused could inspect it. It did not matter, in particular, that the prosecution did not intend to rely on it. The important point was that the accused should have the possibility of inspecting it to see if there was a possibility that it would assist his case.

Hardiman J added that the judgment of Lynch J, where he used the expression, may give rise to the reasonable possibility of securing relevant evidence" should be considered in the light of case-law on the rules applicable to discovery of documents in civil proceedings, i.e., that all documents should be discovered which it is reasonable to suppose may, not merely must assist the opposite party to advance that parry's own case but to damage that of his adversary. I do not find it necessary to comment on this issue, as it does not arise in this case.

The underlying principle must be to ensure that the appellant has a fair trial. This must, I think, be determined objectively. Evidence, which has existed, may have ceased to exist before trial for a multitude of reasons. A material witness may have died or have become unavailable; evidence may have been destroyed in a fire or simply been lost. None of the cases suggest, nor could they, that an accused person should be allowed to evade trial because such random events have possibly prevented him from finding exculpatory evidence. However, effect on the the fairness of a trial of the absence of evidence is the same whether or not it has been in the hands of the police. In my view, the determining element in the cases is that the missing evidence has been in the hands of the prosecution. This was so in all four of the cases cited. The rationale of the decision of Lynch J in Murphy v DPP is that the Gardai had evidence in their possession which could possibly be of assistance to the accused. They could not be allowed to pass judgment on whether it would, in fact, have assisted him. For that reason, it is correct to apply a standard based on possibility combined with real and serious risk of unfairness. All this takes place in the context of a possible trial and it is of the greatest importance that the courts ensure that the police force behaves with impeccable fairness in its handling of evidence. If it had been established, in this case, that the contested video had, in fact, been given to the Gardai, I believe that the same result should have been applied as in Braddish. In this case, however, the relevant Garda officer, Detective Garda Kenny, has denied repeatedly and emphatically and in the clearest terms, that it ever came into Garda possession. I have already explained why I do not think it suffices for the appellant to place the inferential evidence of Mr Torley in contradiction of such clear denials. It must be recalled that the burden on the appellant is to show a real or serious risk that he will not have a fair trial. His case, on the evidence, would have to be paraphrased as stating that there was a possibility that video tapes which may or may not have come into Garda possession contained evidence tending to exculpate him. Quite obviously, the evidence does not meet that standard.

The difference of opinion between myself and Hardiman J is not entirely limited to our different approaches to the assessment of the facts. In truth, the difference in that respect is not very great.

The more important issue is that Hardiman J says that the principle enunciated in Braddish is that:

"It is the duty of the Gardai, arising from their unique investigative role, to seek out and preserve all evidence having a bearing or potential bearing on the issue of guilty or innocence ".(Emphasis added)

On the facts of Braddish, the video evidence had actually been in the possession of the Gardai. 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 DPP. Where the passage, just cited, goes further so as to encompass evidence which the Gardai 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 Gardai 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 Gardai 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 Gardai have 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 does not cover 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 onto the adequacy of the police investigation rather than the guilt or innocence of the accused.

Having said all that, on the assumption that I am incorrect in my views in the present case, I agree with Hardiman J and for the reasons which he gives that such delay as the accused was guilty of did not warrant refusal of the remedy which he sought.

In Ebrahim, the court cited a Code of Practice adopted under legislation governing police investigation. One provision reads:-

"In conducting an investigation, the investigator should pursue all reasonable lines of inquiry, whether these point towards or away from the suspect. What is reasonable in each case will depend on the particular circumstances. "

A test thus formulated may be appropriate to describe the duty of the police. I would not wish to see it become a vehicle for the prohibition of trials wherever the police can be shown to have fallen short of it.

I would, however, dismiss the appeal.