Supreme Court allows appeal against High Court order restraining prosecution due to missing CCTV evidence.

THE SUPREME COURT

APPEAL NO 382/2005

Denham J.

Hardiman J.

Fennelly J.

Between:-

Robert Dunne

Applicant/ Respondent

-and-

Director of Public Prosecutions

Respondent/Appellant

JUDGMENT of Mr. Justice Fennelly delivered the 24th day of February, 2009.

1. By an order made 15th March 2004 on foot of an ex tempore judgment of Quirke J, the High Court made an order

restraining the Appellant (“the Director”) from continuing with the prosecution of the respondent on a charge of robbery of

mobile phone cards, Playstation games and IR£200 cash at an Xtravision video shop at Greenhills, Tallaght, Co Dublin. The

Director appeals against the order.

2. This is yet another “missing evidence” case. The gardaí have lost or mislaid the copy of the CCTV video footage of the

robbery. At any rate, they are unable to produce it. It is unfortunate, to use no stronger expression, that the Court has to

entertain so many applications for the prohibition of criminal trials for the sole reason that important evidence has been lost

by the prosecuting authorities.

3. In the present case, the Director frankly admits his responsibility for the absence of the evidence. He limits his case to

submitting that the respondent has not discharged the onus of establishing that there is a real risk that he will not have a fair

trial. That requirement is, of course, the central matter to be established in all these cases. While other issues have arisen in

a number of the cases, the present case is concerned only with whether the absence of the CCTV video recording leads to a

real risk that the respondent will not have a fair trial.

4. It is necessary, therefore, to summarise the facts. The facts regarding the offence emerge from the book of evidence.

Those regarding the absence of the CCTV video appear from the affidavits sworn in the course of the judicial review

proceedings.

5. On 23rd March 2001 at about 10:40 pm, a robbery took place at the Xtravision video shop at Greenhills, Tallaght. There

were two female staff behind the counter. Two youths came in. They were shouting. Both had their faces covered, one with

white material, which turned out to be the sleeve of a white tee shirt with holes cut for the eyes, and the other with the hood

of a dark coloured sweat shirt. One shouted: “where’s the money” and pointed to the till; he ran around the counter to the

till, which was open; he took money (later estimated at £200) from it. The one with a hood produced and waved a knife and

demanded that the other till be opened. When it could not be opened, he demanded phone cards. One of the girls took him

to the back of the shop where the phone cards were in a white plastic bag and gave it to him. The other youth (with the

“white thing around his face”) shouted: “where are the DVD’s and Playstations. He grabbed all the Playstation games from

the shelves; he put them into a big holdall bag. They then ran out of the shop.

6. Three other witnesses, customers in the shop, described both youths as being masked. The two girls later saw and

identified the two youths on the video recording of the security tape. Though they could be seen, they could not be

identified from the video, because their faces were covered. The time was recorded on the tape as being 22:47. The security

video tape of these events was handed to the gardaí.

7. Garda David Weir of Tallaght received a call about the robbery from Garda Control while on duty in a patrol call in the

area at 10:55 pm. He saw two youths who matched the description given. One was carrying a large bag. They ran and one

escaped, but one youth, who is the respondent, dropped the bag as he was caught. The bag contained a large number of

Playstation games which were duly identified as being from the Xtravision store.

8. The respondent was arrested and detained pursuant to section 4 of the Criminal Justice Act, 1984. He made a complete

signed statement of admission, after caution, to the robbery and of his role in it. This was completed after 1 am on 24th

March. The respondent was then released.

9. On a search of the area travelled by the two youths, the gardaí found a tee-shirt sleeve with two eye holes cut in it. This

was shown to the respondent who identified it as the one he had used to cover his face during the robbery.

10. The respondent was arrested and charged with the robbery on 16th September 2002 and was returned for trial on 4th

November 2002. The Court has not been given any reason for the lapse of time between March 2001 and September 2002.

Indeed the respondent’s solicitor mistakenly gave 4th November 2001 as the date of return for trial.

11. The respondent’s solicitor asked for disclosure of the video by letter dated 5th November 2002. According to the

affidavit of Garda Weir, the video was placed in a safe in Tallaght Garda Station. It was to be an exhibit in the book of

evidence. When he later went to recover it, it was missing. He has sworn that there is no reason to believe that it can be

located. No other explanation has been offered for its absence. On 22nd December 2002, the respondent’s solicitors were

informed that the security video tape had been mislaid.

12. On 13th January 2003, the respondent was granted leave by the High Court (Murphy J) to apply for an order of

prohibition by way of judicial review restraining the Director from continuing with the prosecution. The application was

based, in the first instance, on the absence of the security video tape.

13. The respondent claimed, in addition, that his interview in the Garda Station had been recorded on video, describing the

procedure in some detail. The application for judicial review was thus based, secondly, on the failure of the Director to

produce a video recording of the interview of the respondent in Tallaght Garda Station on the night of 23rd February 2001,

when it is alleged that he made a complete confession. The respondent, in his grounding affidavit, denied that he had made

the admissions set out in the memorandum of interview.

14. The latter aspect of the application for judicial review was not in issue on the appeal. Three members of An Garda

swore affidavits for the High Court denying that the interview had been recorded on video at all. This conflict of evidence

was not resolved. The respondent did not serve notice of intention to cross-examine the gardaí. This Court was informed at

the hearing of the appeal that the matter of the recording of the interview was a matter for the trial judge at the criminal trial

of the respondent. He did not deal with it in his judgment. Accordingly, this Court has not been asked to rule in any respect

on this issue.

15. The question which remains is whether the learned trial judge was correct to restrain the further prosecution of the

respondent on the ground that, in the absence of the security video tape, there is a real risk that he will not have a fair trial.

16. I endeavoured, in my judgment of 3rd July 2008, in Savage v Director of Public Prosecutions [2008] IESC 39 to

summarise the principles applicable to applications of this type. Hardiman J, in his judgment in that case, agreed with that

summary, which, omitting matters not relevant to the present case, is as follows:

a. It is the duty of the prosecution authorities, in particular An Garda Síochána, to preserve and retain all

evidence, which comes into their possession, having a bearing or potential bearing on the issue of guilt or

innocence of the accused. This duty flows from their unique investigative role as a police force. (Braddish at

page 133)………………………;

b. The missing evidence in question must be such as to give rise to a real possibility that, in its absence, the

accused will be unable to advance a point material to his defence. This is, like the garda obligation to retain

and preserve evidence, to be interpreted in a practical and realistic way and “no remote, theoretical or

fanciful possibility will lead to the prohibition of a trial.”(Dunne page 323);

c. The fact that the prosecution intends to rely on evidence independent of the missing evidence at issue in

order to establish the guilt of the accused does not preclude the making of an order of prohibition. In Dunne,

the prosecution intended to rely on a confession. This did not defeat the applicant’s complaint of the failure of

the gardaí to take possession of a video tape covering the scene of the robbery;

d. The application is considered in the context of all the evidence likely to be put forward at the trial. The

court will have regard to the extent to which aspects of the prosecution case are contested. In Bowes, the fact

that the motor car in which the applicant was alleged to have been travelling had been lost by the gardaí was

insufficient, when the applicant did not contest the fact that he was driving it and the charge related to

possession of drugs found in the boot of the car. In McGrath, the court had regard to the “circumstantial”

character of the prosecution case of dangerous driving. In McFarlane, the existence of photographic evidence

of the missing fingerprints was highly material to the complaint that the original items had been lost by the

gardaí;

e. The applicant must show, by reference to the case to be made by the prosecution, in effect the book of

evidence, how the allegedly missing evidence will affect the fairness of his trial. Hardiman J said in

McFarlane (page 144) that:

“In order to demonstrate that risk there is obviously a need for an applicant to engage in a specific way with

the evidence actually available so as to make the risk apparent.”

f. [timely request: not relevant to this case]

g. The essential question, at all times, is whether there is a real risk of an unfair trial. (Scully page 257). The

court should focus on that issue and “not on whose fault it is that the evidence is missing, and what the degree

of that fault may be.” (Dunne page 322).

17. It is worth repeating what Hardiman J said at page 257 of his judgment in the case of Scully v Director of Public

Prosecutions [2005] 1 I.R. 242: “One is concerned, first and last, with whether there is a real risk of an unfair trial.”

18. The matter must be considered in the light of all the relevant circumstances. These include the evidence as a whole, the

extent to which it is contested and, in particular, the respondent’s response to it in the judicial review proceedings.

19. The respondent accepts, in his affidavit, that he was arrested by Garda Weir and conveyed to Tallaght Garda Station.

Following an account of the setting up of a video machine, which, for reasons already given, is not now relevant, he states:

“It is your Deponent’s contention that I did not make the admissions set out in the memorandum of interview. If this

matter is to proceed to full Trial it is my intention to challenge these alleged confessions.” He does not deny signing the

statement and confines himself to expressing a “contention.” This evidence from the respondent is, at best, ambiguous and,

at worst, evasive. It does not address the important issue of the existence of an apparent admission of the offence in a direct

and clear way, or propose any basis for contesting them.

20. The respondent has not addressed at all the garda evidence regarding the facts surrounding his apprehension and

detention, the finding of the stolen Playstation games in a bag in his possession, the finding and production to him of the

white the-shirt sleeve or, indeed, any other feature of the case. He does not even assert that he is not guilty or that he

intends to plead not guilty.

21. It need hardly be said that the fact that this Court does not prohibit the trial does not in any way limit the respondent’s

freedom to raise in his defence to the charge of robbery any relevant defence, including the admissibility of his statement of

admission.

22. Mr Roderick O’Hanlon, Senior Counsel, on behalf of the respondent, relied strongly on the cases of Dunne v Director

of Public Prosecutions [2002] 2 I.R. 305 and Braddish v Director of Public Prosecutions [2001] 3 I.R. 127. However, in

Braddish, the prosecution, in the absence of the video tape, was, as was stated by Hardiman J at page 133 “based wholly

on an alleged confession.” Similarly, in Dunne, McGuinness J observed at page 309, “the only other evidence against the

applicant [was] a brief inculpatory statement…” Clearly, that is not so in the present case.

23. Mr O’Hanlon responded to questions concerning the uncontested evidence of the respondent being caught “red-handed”

that the video tape could have exonerated the respondent in respect of the robbery. This submission is apparently based on a

proposition that the respondent might have come into possession otherwise than through the robbery. Apart from the

obvious fact that this is a remote and fanciful contention, the respondent has offered nothing in his afffidavit to give it

support or even to render it plausible.

24. I do not think that, on the facts of this case, the respondent has been able to demonstrate that the loss of the security

video tape exposes him to the risk of an unfair trial. The learned trial judge, in his ex tempore judgment said: “There is a

risk, however, remote, of a miscarriage of justice.” The respondent needs to establish a real risk and he has not done so.

25. I would allow the appeal, set aside the order of the High Court and substitute an order refusing the application for

judicial review.