C.D. -v- Director of Public Prosecutions, [2009] IESC 70 (2009)

Docket Number:187/2009
Party Name:C.D., Director of Public Prosecutions
Judge:Fennelly J.



Denham J.

Fennelly J.

Kearns J.




JUDGMENT of Mr. Justice Fennelly delivered the 23rd day of October, 2009.

  1. This is yet another "missing evidence" case. Since the decision of this Court in Braddish v Director of Public Prosecutions [2001] 3 I.R. 127, many applications have been made to the High Court, and many of them appealed to this Court, for prohibition of criminal trials on the ground that some piece of evidence has been lost or never been retrieved by the gardaí. This Court has heard no less than eight such appeals in less than two years. It is not easy to avoid the suspicion that a practice has developed of trawling through the book of evidence in search of the silver bullet-rather the absent missing bullet-which can put a stop to any trial.

  2. The present appeal is brought against the refusal of O'Neill J in the High Court to make an order restraining the prosecution of the appellant in the Circuit Criminal Court for a sexual assault.

  3. The indictment preferred against the appellant contains four counts, only three being relevant. Firstly, he is charged with committing a sexual assault on a female garda officer contrary to section 2 of the Criminal Law (Rape) Amendment Act 1990 as amended by section 37 of the Sex Offenders Act 2001. Secondly, he is charged with assault on the same officer contrary to s. 19(1) of the Criminal Justice (Public Order) Act 1994. Thirdly, he is charged with threatening, abusive or insulting behaviour in a public place contrary to section 6 of the same Act. The appellant pleaded guilty to the second and third counts and the question of sentence has been adjourned. The appellant's solicitor has sworn that he maintains his innocence in respect of the first count.

  4. I will summarise, firstly, the nature of the assaults alleged as appears from the book of evidence before referring to the complaint regarding missing visual recording.

  5. The gist of the evidence generally, excluding any reference to the sexual assault, is that the appellant was walking up Kildare Street at about 2.46 pm on 5th August 2005. The complainant garda was on duty on the footpath outside Leinster House. The street was busy. The appellant was shouting and using abusive and obscene language towards the garda. She tried to calm him and told him he could not be shouting and clenching his fists, but he continued to act in a threatening manner. He kicked the garda twice on the leg. She tried to arrest him but he resisted. She called for assistance. He then boxed her in the back of her head or neck. A male garda arrived in response to the call for assistance and arrested the appellant.

  6. The present appeal is concerned only with one further aspect of the garda's complaint. She says that, at one point, the appellant reached down and tried to grab her between her legs and that his hand brushed off her thigh. This represents the alleged sexual aspect of the assault.

  7. The entire incident took a matter of a minute or less. It occurred directly outside Leinster House where the garda was on duty and in uniform. The area is, not surprisingly, covered by a number of CCTV cameras. The complaint is that not all of the possibly relevant visual recordings were downloaded, in particular that while there are very good and clear shots from one camera angle covering a crucial one second interval, there are no corresponding shots covering the half-second before the first shot at the start of a second and the half-second between the beginning and the end of that crucial second.

  8. The affidavits sworn for the High Court proceedings describe the data recording system. It consists of about twelve recorders, which are computer hard drives together with associated security cameras covering the area.

  9. Sergeant Anthony Brophy of Pearse Street Garda Station explains that there are approximately twelve to fourteen cameras. These relay video footage to each recording unit. The incident with which the prosecution is concerned was captured on camera number 1 (which is on recorder number 5) and on camera number 29, also referred to as camera number 2, (which is on recorder number 9). Camera number 1 looks up Kildare Street towards St Stephen's Green (with Leinster House on the left); Camera number 29 looks in the opposite direction, i.e., down Kildare Street. Recorded data can later be reviewed, retrieved and copied or recorded onto a compact disc (CD).

  10. On 16th August, Garda Christopher Burdock viewed the footage and copied it onto three separate CD's. He inadvertently downloaded the incorrect segment from camera 29 (looking down Kildare Street). However, a number of stills were taken from that camera. These are central to the complaint, to which I will return. The result is that there is no relevant video or moving footage from camera number 29. However, there is a moving video picture from camera number 1 covering the entire period of the incident. It remains available and has been shown at the hearings in both the High Court and this Court.

  11. The High Court (Peart J) gave leave on 6th November 2006 to apply for judicial review in the form of an order of prohibition or, alternatively, an injunction restraining the further prosecution of the appellant on the first count alleging sexual assault. Two complaints are made. Firstly, it is said that the video footage from camera number 1 is of poor quality and does not "tend to disprove or disprove" the alleged sexual assault. The second complaint as made in the Grounding Statement is:

    "The said still photographs from Camera 2 relating to the crucial period are of far better quality and clarity than the video footage from Camera 1. One still photograph from Camera 2 may be relied on by the prosecution as indicating that that the sexual assault occurred. The video footage from Camera 2 appears from the stills to have been of sufficient quality to show that no such sexual assault occurred to cast doubt on any such allegation."

  12. The complaint as there developed was that the "video evidence which was not preserved was clearly relevant and would have had a strong bearing on the issue of …guilt or innocence…" It is alleged that the "failure by the Gardaí to preserve this evidence …." amounted to a breach of the common law obligations of the Respondent to preserve potentially relevant evidence. However, a significant shift subsequently took place based following on an expert report received by the appellant's solicitors subsequent to the date of the order granting leave.

  13. O'Neill J, in his judgment of 20th March 2009, summarised the complaints made on behalf...

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