Byrne v DPP

JudgeO'Donnell, J.
Judgment Date17 November 2010
Neutral Citation[2010] IESC 54
CourtSupreme Court
Docket Number[S.C. No. 385 of 2005]
Date17 November 2010
Byrne v DPP (Garda Enright)
[2010] IESC 54
Judicial Review


Paul Byrne
Director of Public Prosecutions (At the suit of Garda Joseph Enright)

[2010] IESC 54

Fennelly, J

Finnegan, J

O'Donnell J





Seeking out and preserving - Video evidence - Duty and discretion of gardaí - Obligation to engage with facts of case - Exceptional nature of remedy of prohibition - Role of court of trial - Whether real risk of unfair trial established - Savage v DPP [2008] IESC 39, [2009] 1 IR 185, Braddish v DPP [2001] 3 IR 127, Bowes v DPP [2003] 2 IR 25, Dunne v DPP [2002] 3 IR 305 and Scully v DPP [2005] IESC 11, [2005] 1 IR 242 followed; CD v DPP [2009] IESC 70, (Unrep, SC, 23/12/2009) and McFarlane v DPP [2008] IESC 7, [2008] 4 IR 117 considered; Ludlow v DPP [2008] IESC 54, [2009] 1 IR 640 distinguished - Applicant's appeal dismissed (385/2005 - SC - 17/11/2010) [2010] IESC 54

Byrne v Director of Public Prosecutions (Gda Enright)

Facts: The proceedings related to the extent of the duty on the Gardaí to seek out and preserve evidence. The applicant had alleged that the failure to secure CCTV coverage of a public order incident in 2004 gave rise to a risk of an unfair trial, within the meaning of Braddish v DPP [2001] 3 IR 127. The applicant had obtained photographic stills and the question arose as to the extent of the obligation on the Gardaí in excess of this much.

Held by the Supreme Court per O'Donnell J. (Fennelly, Finnegan JJ concurring), that the substance of the case of the applicant had not been advanced beyond the "no video-no prosecution" case stigmatised in earlier caselaw and accordingly the trial judge was correct to reject the claim of the applicant. It was most remarkable how a summary trial had been delayed by six years. The duty to seek out and preserve evidence had to be interpreted realistically.

Reporter: E.F.




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

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

SCULLY v DPP 2005 1 IR 242 2005 2 ILRM 203 2005/54/11281 2005 IESC 11

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

MITCHELL v DPP 2000 2 ILRM 396

SCULLY v DPP UNREP KEARNS 21.11.2003 2003/47/11429


LUDLOW v DPP 2009 1 IR 640 2008/36/7748 2008 IESC 54

MCHUGH v DPP UNREP SUPREME 12.2.2009 2009/35/8699 2009 IESC 15

D (C) v DPP 2010 2 ILRM 49 2009/11/2494 2009 IESC 70

MCFARLANE v DPP & SPECIAL CRIMINAL COURT 2007 1 IR 134 2006/35/7440 2006 IESC 11



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



DPP v O'C (P) 2006 3 IR 238 2006/20/4223 2006 IESC 54


Judgment delivered by O'Donnell, J. on the 17th day of November 2010


O'Donnell J. [nem diss]


At approximately 7.30 pm on the 7th April 2004 the gardaí were called to a disturbance at the Centra store at Talbot Street in the centre of Dublin. They were met by Mr Moeed Hamid, the manager of the store. He told the gardaí that two men, one of whom was the Applicant, had ordered food from the delicatessen counter and had then attempted to leave without paying and that when he approached them they abused him verbally, took items from the shelves and threw them at him and other members of the staff. Mr Hamid pointed out the two men who were still on the premises and who appeared to the gardaí to be intoxicated. They were still verbally abusing Mr Hamid. Garda Enright arrested the Applicant for an offence under the Criminal Justice ( Public Order) Act, 1994. The Applicant was subsequently charged with assault contrary to s.2 of the Non Fatal Offences Against the Person Act, 1997 and criminal damage contrary to s.2 of the Criminal Damage Act, 1991. The DPP directed summary disposal, and jurisdiction was accepted by the District Court. On September 9 th 2004 another man pleaded guilty to charges arising from the same incident.


Thus far the incident was one which is, unhappily, a fairly routine matter in city centre shops and indeed in the District Court. However, the Centra store, like many other convenience stores and petrol stations, was equipped with CCTV. Since the landmark case of Braddish v DPP [2001] 3 IR 127 the existence, or indeed more accurately the absence, of CCTV footage and its impact on trials has been the subject of extensive consideration in the Superior Courts.


It is now accepted that the facts of each case may be critical in determining the legal consequences of the absence of CCTV footage, or indeed any other available evidence. Here the position was set out in the affidavit of Garda Enright. His account was not challenged in any replying affidavit and he was not cross-examined. On the night in question he inspected the CCTV system. Mr Hamid told him that the system did not permit the burning of a CD to copy the images but did allow for the printing out of still photographs from the film. Mr Hamid printed out eight colour pictures which he gave to Garda Enright.


On the 26th May 2004, the solicitors for the Applicant wrote a standard letter to the Superintendent in Store Street garda station seeking copies of any witness statements and if none were in existence, a precis of the evidence to be given, copies of any statements alleged to have been made by the accused, copies of the custody record, and any other documents relied on. The letter continued " with reference to video evidence, we rely on the Supreme Court rulings in DPP v Braddish and DPP v Dunne, and request that you forward a copy of any such video to this office". In response to this request the solicitors were furnished with a rudimentary precis of the case, the custody records, and the stills referred to above. The solicitors then sought a copy of the video from which the stills had been taken. The garda response on the 10th August 2004 was that there was no CD burning facility on the system and " arrangements are being made to have the images transferred for viewing". On the 10th February 2005 however, the gardaí informed the solicitors that the footage was " no longer on the hard drive". There the evidence rested, save that it appears Mr Hamid is no longer employed by the store.


The Applicant commenced judicial review proceedings seeking prohibition of the trial in the District Court. A grounding affidavit was sworn by the Applicant's solicitor. The Applicant himself did not swear an affidavit. In the solicitor's affidavit, the only thing said about the particular incident is the following:

"I say that my instructions are that the applicant denies the aforesaid charges alleged against him and has pleaded not guilty to each of these."


The affidavit recited the sequence of correspondence and concluded that the deponent had been advised that " in the circumstances the respondent [the DPP] has failed to ensure that the gardaí sought and preserved all evidence material to the allegation made against the applicant". It is apparent therefore, that this is not a case where it is alleged that the gardaí having retained evidence have somehow lost or mislaid it or returned it to the owner so that it is no longer available. Here it was suggested that the gardaí had failed to secure from a third party, evidence of undeniable relevance, being CCTV coverage of the incident the subject matter of the charges. The case thus raises the question of the extent of the duty of gardaí to seek out and preserve evidence. This was the subject matter of Dunne v Director of Public Prosecutions [2002] 2 IR 305, albeit, that in that case there was an unresolved dispute as to whether the gardaí had ever taken possession of the video tape in that case.


Since the decision in Braddish, the Superior Courts have experienced a significant number of cases about evidence, particularly video evidence, which has been lost, mislaid or as in this case, not obtained in the first place. Each case, it has been emphasised, must be determined on its own facts. However it is now recognised that Braddish was a very simple, indeed exceptionally straight-forward case (See Scully v Director of Public Prosecutions [2005] 1 IR 242, 248-249, Hardiman J.) where the missing CCTV footage which had been viewed by the gardaí not only showed the incident alleged to constitute the offence, but was the basis upon which the accused had been identified. The principle in Braddish has to be " interpreted realistically on the facts of each case" (See Braddish Hardiman J. and Dunne McGuinness J. Page 309). The realistic interpretation of the principle can be illustrated by the subsequent decision in Bowes & McGrath v Director of Public Prosecutions [2003] 2 IR 25, where the Supreme Court dealt with two applications to prohibit trials on the grounds of missing evidence. In the McGrath case, the accused was charged with dangerous driving causing death. The motorcycle of the deceased had been released by the gardaí prior to the prosecution being commenced and there was credible evidence of the importance of permitting forensic investigation of the machine. Furthermore, such investigation had been sought promptly, once the accused had been charged. That case was to be contrasted with the Bowes case where the Supreme Court upheld the High Court's refusal to prohibit the trial of an applicant on a charge of possession of drugs with intent to supply where drugs had been found in the boot of a car...

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