Supreme Court allows appeal prohibiting prosecution due to police failure to seek out relevant video evidence.

THE SUPREME COURT

JUDICIAL REVIEW

McGuinness, J.

Hardiman, J.

Fennelly, J.

142/2001

BETWEEN

ROBERT DUNNE

APPELLANT/APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Judgment of Mrs Justice McGuinness delivered the 25th day of April 2002

I have had the advantage of reading in draft form the judgments about to be delivered by Mr Justice Hardiman and Mr Justice

Fennelly. Both judgments extensively review the facts of this case and the applicable law. I do not consider that I have anything

relevant to add either in regard to the facts or in regard to the law. I shall therefore confine myself to a few brief remarks regarding

the conclusions to be drawn in this case.

In his judgment Hardiman J. refers to and relies on what he rightly describes as “the main point of principle” in his earlier judgment

(with which Denham J. and Geoghegan J. agreed) in Braddish v DPP (Supreme Court, unreported 18th May 2001). In that judgment he

stated:-

“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.”

In the instant case the Applicant, Mr Dunne, is charged with the robbery of a sum of money from the Parkway Filling Station in

Palmerstown on the 18th January 1998. The evidence of Mr Torley, the owner of the filling station, is that the various areas of the

filling station were all covered by video camera surveillance. On previous occasions relevant video tapes from the filling station had

been acquired by the Gardai in the course of other investigations. Mr Torley, however, cannot recall whether the Gardai either

requested or obtained the video tapes covering the period of the robbery on the 18th January 1998. He is, however, certain that the

video cameras were operative on that date.

The evidence of Detective Garda Denis Kenny, who is the officer in charge of the investigation but who was not present at the filling

station on the night of the robbery is that no video tape of the events that occurred at the Parkway Filling Station was given to or

obtained by any member of the Garda Siochana. This evidence is uncontradicted. No affidavit was sworn by the Garda or Gardai who

actually attended at the scene of the robbery.

Since there is no evidence that the video tapes in question were ever in the possession of the Garda Siochana, there can be no

question of a failure to preserve that evidence, as there was in the Braddish case or, for example, in Murphy v DPP [1989] ILRM 71.

The decision of this Court turns, therefore, on whether the further prosecution of the Appellant should be prohibited on the ground

that the Garda Siochana failed in their duty to “seek out” evidence which had “a bearing or potential bearing on the issue of guilt or

innocence”.

In his judgment Fennelly J. expresses the view that to impose on the Gardai such a duty to seek out evidence represents a “very

significant new step in the law”. He envisages a danger 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” and that trials 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. It seems to me that Fennelly J’s anxieties in this regard are reasonable and that such dangers do exist. It

is essential that a duty on the part of the Gardai to seek out relevant evidence should not be too widely interpreted. As was stated

by Hardiman J. in Braddish v DPP, such a duty “cannot be interpreted as requiring the Gardai to engage in a 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.”

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.

On the facts of the present case, and bearing in mind in particular that the only other evidence against the Appellant is a brief

inculpatory statement, I agree with the reasoning and conclusions of Hardiman J. I would allow the appeal and grant an order

prohibiting the Respondent from proceeding further with the prosecution of the Appellant on the charge relating to the Parkway Filling

Station.

I would add that the questions raised in this case as to the duty of the police to seek out evidence and as to the limits of that duty

are extremely important in the context of the investigation of crime and the prosecution of offenders. It is to be hoped that these

issues will arise again in a future case where they may be considered by a full Court. In the meantime I would limit my decision to the

facts of the instant case.