Baltutis v Judge O'Shea and Others

JurisdictionIreland
JudgeMr. Justice Hedigan,
Judgment Date19 August 2009
Neutral Citation[2009] IEHC 402
CourtHigh Court
Date19 August 2009

[2009] IEHC 402

THE HIGH COURT

RECORD NO. 502 JR/2008
Baltutis v Judge O'Shea & Ors
[2009] IEHC 402

BETWEEN:

NERIJUS BALTUTIS
APPLICANT

AND

HIS HONOUR JUDGE MICHAEL O'SHEA and THE DIRECTOR OF PUBLIC PROSECUTIONS and THE COMMISSIONER OF AN GARDA SÍOCHÁNA
RESPONDENTS

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S14

PROSECUTION OF OFFENCES ACT 1974

CONSTITUTION ART 38.1

KEARNEY v DPP UNREP HEDIGAN 15.7.2009 2009 IEHC 347

BRADDISH v DPP & JUDGE HAUGH 2001 3 IR 127 2002 1 ILRM 151 2001/2/351

LUDLOW v DPP UNREP SUPREME 31.7.2008 2008/36/7748 2008 IESC 54

SAVAGE v DPP 2009 1 IR 185 2008/58/12074 2008 IESC 39

BOWES & MCGRATH v DPP 2003 2 IR 25 2003/6/1129

DUNNE v DPP 2002 2 IR 305 2002 2 ILRM 241 2002/7/1645

CRIMINAL LAW

Evidence

Duty to seek out and preserve evidence - Possible exculpatory evidence - Failure to seek out and preserve CCTV video footage - Whether investigation deficient owing to failure to seek out video evidence - Timing of request for disclosure - Whether CCTV footage material -Whether right to fair trial irreparably prejudiced - Prejudice - Applicable principles - Trial in due course of law - Onus on applicant to show how allegedly missing evidence will affect fairness of trial - Factors to be weighed in exercise of court's discretion - Kearney v DPP [2009] IEHC 347, (Unrep, Hedigan J, 15/7/2009), Dunne v DPP [2002] 3 IR 305, Braddish v DPP [2001] 3 IR 127, Murphy v DPP [1989] ILRM 71, Ludlow v DPP [2008] IESC 54, (Unrep, SC, 31/7/2008), Savage v DPP [2008] IESC 39, [2009] 1 IR 185, McFarlane v DPP [2006] IESC 11, [2007] 1 IR 134 and Bowes v DPP [2003] 2 IR 25 applied - Constitution of Ireland 1937, Article 38.1- Criminal Justice (Theft and Fraud Offences) Act 2001 (No 50), s 14 - Prosecution of Offences Act 1974 (No 22) - Application for prohibition refused (2008/502JR - Hedigan J - 19/8/2009) [2009] IEHC 402

Baltutis v Judge O'Shea & Ors

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Judgment of Mr. Justice Hedigan, delivered on the 19th day of August, 2009

2

1. The applicant is a Lithuanian national who is currently facing a charge of robbery contrary to section 14 of the Criminal Justice (Theft and Fraud Offences) Act 2004 ('the 2004 Act') before the Circuit Criminal Court.

3

2. The first named respondent is a Judge of the Circuit Court, sitting at Dundalk in the County of Louth.

4

3. The second named respondent is the authority responsible for the prosecution of criminal offences in Ireland. His statutory authority to carry out this function is derived from the Prosecution of Offences Act 1974.

5

4. The third named respondent is the senior official within An Garda Síochána. He retains oversight over all the activities of the force.

6

5. The applicant seeks the following relief by way of judicial review:-

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(a) An order of prohibition or, in the alternative, an injunction restraining the second the named respondent from taking further steps to prosecute him in respect of the charge of robbery; and

8

(b) A declaration that An Garda Síochána have failed in their duty to seek out and preserve evidence that bears on the guilt or innocence of the applicant and in particular which would have tended to support the claim of innocence made by him.

I. Factual and Procedural Background
9

6. The applicant was summoned to appear before Drogheda District Court on the 18 th of May 2007 on a charge of robbery contrary to section 14 of the 2001 Act. On the 22 nd of June 2007, District Judge Brennan declined to accept jurisdiction and adjourned the matter for the service of a book of evidence. On the 27 th of July 2007, the applicant was served with the book of evidence and sent forward for trial to the next sittings of the Circuit Criminal Court in Dundalk. The applicant's co-accused failed to appear on the 27 th of July 2007 and a warrant was issued for his arrest.

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7. The case contained within the book of evidence was that the applicant, together with his co-accused, did at approximately 3.15am on the 19 th of March 2006 at Beamore Road in Drogheda rob one Graham Carroll. The particulars of the offence are that the applicant and his co-accused followed the alleged victim; attacked him by striking his head and kicking him; and stole his wallet containing an identification card, a bank card and €30 in cash.

11

8. The alleged victim did not provide any substantive identification of the assailants, save that they were two males. Rather, the main identification evidence in the case comes from two members of An Garda Síochána, both of whom were off-duty at the time they witnessed the incident. The first of these, Garda James McCormack, was living opposite the scene of the robbery and describes how he looked out the window of his home to witness two males kicking and punching a man who was lying on the ground. Garda McCormack also provides a general description of the assailants. The second off-duty member was Garda Aidan Maguire, who states that he was travelling in his motorcar when he observed two men running away from a third man, who was lying on his back on the ground. Garda Maguire details how he followed the two assailants, travelling slowly in his car behind them. He maintains that he kept the assailants in his sight at all times and contacted Drogheda Garda Station and asked them to send assistance. Garda Maguire also gives further details of his journey and explains that eventually, he spotted his Garda colleagues approach the two assailants in a patrol car and stop them. He then recalls drawing near to his colleagues and identifying the two men as the same ones he had seen running from the scene of the robbery. It should be noted that there are some discrepancies between the accounts given by Garda McCormack and Garda Maguire. For example, Garda McCormack describes the robbery as having taken place at approximately 3.30am whereas Garda Maguire recalls spotting the two men running from the scene at around 4.00am.

12

9. One of the Gardaí in the patrol car was Garda Austin Kelly. His evidence is that he was sent by Drogheda Garda Station in response to the call of Garda Maguire. He drove towards the scene of the robbery and noticed two men of foreign nationality walking in the opposite direction. He states that he drew close to them in the squad car and confronted them. At the same time, he recalls that Garda Maguire made himself known to him and identified the two men as those who had carried out the robbery.

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10. It is not in dispute that the two men who were spoken to by Garda Kelly were the applicant and his co-accused. It is also common case that neither of the men was arrested at the time nor asked to make a statement. However, there is considerable disparity between the account given by the applicant of what occurred during the course of the encounter, and that given by Garda Kelly. The applicant maintains that he and his co-accused were stopped by Garda Kelly and another female Garda. He contends that they were then searched by the female Garda and that two mobile phones and a driver's licence were removed from his pocket. The mobile phones were then returned to him and the two men were permitted to continue on their way. The applicant suggests that this exchange was followed by a second encounter, during which he and his co-accused were again searched by the female Garda. On this occasion, the two mobile phones were retained by the Garda as well as some loose change which the applicant had been carrying. On Garda Kelly's version of events, only one such encounter took place. Garda Kelly states that although another female Garda was present, she took no part in the search which he attests he carried out personally.

14

11. When the applicant and his co-accused arrived home, the applicant asserts that they spoke with another housemate of theirs, who had a superior command of the English language. They promptly went to Drogheda Garda station with their housemate and sought to speak with Garda Kelly in relation to the events which had taken place earlier in the evening. When Garda Kelly agreed to speak to the applicant and his co-accused, the applicant requested the return of the two mobile phones which had been taken from him. These were duly given to him while his driver's licence was retained. Garda Kelly explained to the applicant that he did not wish to take any statements at that time. The explanation which he now provides for such a decision is that he had yet to fully interview the alleged victim at that point, and was therefore not in a position to question any suspects. Again, some conflict arises on the evidence at this point. The applicant maintains that Garda Kelly indicated that the applicant ought to return at a later date to make a statement in relation to the offence and that, on foot of this recommendation, he returned on three subsequent occasions but was unable to speak to Garda Kelly each time. He claims that he left at the Garda station the telephone number of a male friend with good spoken English, with a view to scheduling meeting with Garda Kelly. Garda Kelly, by contrast, denies any knowledge of such an arrangement.

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12. On the 7 th of September 2006, the applicant's co-accused was contacted and interviewed in relation to the alleged offence. A memorandum of this interview records that the applicant's co-accused informed Garda Kelly that neither he nor the applicant had been involved in the robbery. The applicant's co-accused further stated that at the time when he and the applicant were approached by the Gardaí, they were on their way home from a nightclub called 'Storm' and they had not travelled past the scene of the alleged offence during the course of their journey. Their only stop, according to him,...

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