Braddish v DPP

JudgeMr. Justice Hardiman
Judgment Date18 May 2001
Neutral Citation[2001] IESC 45
CourtSupreme Court
Docket Number[S.C. No. 7 of 2001]
Date18 May 2001





[2001] IESC 45

Dehnam J.

Hardiman J.

Geoghegan J.





Criminal law

Prohibition - Trial - Circuit Criminal Court - Evidence - Relief refused in High Court- Duty to preserve evidence - Role of Garda Síochána - Whether unfair to accused to permit trial to proceed - Bunreacht na hÉireann, articles 38.1 and 40.4.1° (7/2001 - Supreme Court - 18/5/01) - [2001] 3 IR 127- [2002] 1 ILRM 151

Braddish v DPP and Haugh

The applicant had sought an order of prohibition against his impending prosecution. Video evidence of the alleged crime had been in the possession of the Gardaí but was no longer available. The relief sought was refused in the High Court. On appeal Hardiman J was satisfied that the applicant was entitled to the relief sought and accordingly made the appropriate order.









Mr. Justice Hardimandelivered the 18th day of May, 2001 . [nemdiss]


On the 2nd July, 1997 a robbery took place in a shop in Limerick. The premises were protected by video surveillance and it appears from the statements exhibited in the affidavits herein that a Detective Garda O'Neill viewed the video tape. He believed that the video tape showed the robbery in progress and that the Appellant was the person shown committing it. On this basis he arrested the Appellant on the 14th October, 1997. The Appellant was detained pursuant to Section 4 of the Criminal Justice Act, 1984. During hisdetention, which was extended pursuant to the Act, the Appellant is alleged to have made and signed a statement admitting to therobbery.


The Appellant was released from custody on the 14th October, 1997. He was not charged with the robbery until the 2nd July, 1998, a period of approximately nine months. It is alleged by the Appellant, and doubted but not expressly denied by the First-named Respondent, that on the first appearance in the District Court the Appellant's then Solicitor requested any signed statements, any video footage and any stills of such video footage.


This request was subsequently repeated in correspondence in December 1998. Finally, in January 1999, the Appellant's then Solicitor was told in correspondence:-

"In relation to the videos these are no longer available as they were returned to the owners after the accused admitted thecrime".


A further issue arose in relation to the investigation of this offence. The Appellant avers that he was asked to take part in an identification parade while in custody, and that he agreed to do so. This is consistent with the Statement of Evidence of Superintendent Patrick O'Boyle, who was asked to extend the Appellant's decision. He said:-

"The direction to further detain the prisoner was granted following a request from and a discussion with Sergeant D. Gaffney, member in charge at Henry Street Garda Station. Sergeant Gaffney outlined the circumstances to me. I based my decision to extend the detention on the following grounds which I considered reasonable i.e. the further questioning of the prisoner was necessary. Further enquires had to be carried out and the holding of an identification parade which was being organised had to be carried out".


However, no identification parade was in fact held. Moreover, in one of his affidavits sworn in these proceedings Detective Garda O'Neill states that "The applicant was never asked to stand in an identification parade" and "at no stage, in whole or in part, was the said authorisation (i.e. the authorisation to further detain) sought to obtain an identificationparade".


The Appellant was tried in the Limerick Circuit Criminal Court, commencing on the 24th March, 1999. This trial ended in a disagreement of the jury. On the hearing of this appeal, neither side had any information as to what happened in the course of the first trial.


A retrial took place on the 20th April, 1999 before His Honour Judge Haugh and a jury. On this trial, objection was taken to the introduction in evidence of stills which had been made from the video tape while it was in the possession of the Gardaí. The learned trial judge excluded the stills from evidence on the basis that it was unfair to produce them when the video film from which they had been taken was not available. Subsequent to this, Counsel for the Appellant cross examined Detective Garda O'Neill about the circumstances in which the video tape became unavailable. The learned trial judge thereupon discharged the jury. It was frankly stated to this Court by Mr. Blaise O'Carroll S.C. on behalf of the Appellant that this was done because the learned Judge was concerned that the disclosure of the fact that there had been video evidence might be unfair to the accused.

Judicial Review Proceedings

On the 14th June, 1999 the Appellant was granted leave to seek judicial review. He sought to restrain the further prosecution of the indictment preferred against him on the grounds that:-

"(1) The Applicant cannot have a fair trial in due course of law and according to law as is required by the provisions of Article 38.1 and Article 40.4.1 of the Constitution of Ireland because the first-named Respondent herein has failed refused and/or neglected to furnish to the Applicant's legal adviserscopies of and/or an opportunity to inspect the originals of (a) original still photographs, (b) video."


Shortly before the hearing in the High Court Detective Garda O'Neill filed a further affidavit in which he stated that the video was returned to the owner of the shop where the robbery took place "mistakenly on an unknown date between.........the 3rd July, 1998 and 23rd December, 1998 when Mr. Murray raised queries with the Gardaí regarding the video and other matters enquired into by the Defence".


It will be seen that the issue raised by the Appellant is a net one. Does the fact that the video tape is unavailable because the Guards parted with possession of it require in the circumstances that the further prosecution of the Appellant be restrained? In addressing this issue it is important to recall that the video allegedly shows the crime in progress and allows the identification of the perpetrator. No other identification evidence was apparently available and no person was asked to see if he or she could identify the Appellant even though it appears from the papers that there was at least one eye witness to therobbery.

The High Court Order .

In a very detailed judgment delivered the 21st December, 2000 O'Caoimh J. refused the relief sought. He did so on the basis that the prosecution case was not one relying on visual identification itself, but one which rested on the statement alleged to have been made by the Appellant when arrested by the Gardaí. He observed however that if the prosecution were to rely on the photographic stills, a real problem would exist because the Appellant would be deprived of his opportunity of testing the evidence as the video tape was missing. He stated that he was influenced by the fact that the written request for the videos was not made until about eighteen months after the Appellant had been arrested. The learned judge held that he could not conclude that if a timely application had been made, the Appellant would have been deprived of an opportunity of viewing the video evidence. The learned judge also held that the Appellant had not moved promptly for relief by way of judicial review.

Entitlement to items of evidence.

It is well established that evidence relevant to guilt or innocence must, so far as necessary and practicable, be kept until the conclusion of a trial. This principle also applies to the preservation of articles which may give rise to the reasonable possibility of securing relevantevidence.


These propositions were established in the judgment of Lynch J. in Robert Murphy v. DPP [1989] ILRM 71. In his judgment the...

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