O'Callaghan v Dublin District Court

JurisdictionIreland
JudgeMr. Justice Kearns
Judgment Date20 May 2004
Neutral Citation[2004] IEHC 605
CourtHigh Court
Docket Number[2002 No. 414 JR]
Date20 May 2004

[2004] IEHC 605

THE HIGH COURT

No. 414 J.R. 2002
O'CALLAGHAN v. JUDGES OF THE DUBLIN METROPOLITAN DISTRICT COURT & DPP
JUDICIAL REVIEW

BETWEEN

KAREN O'CALLAGHAN
APPLICANT

AND

THE JUDGES OF THE DUBLIN METROPOLITAN DISTRICT COURT
FIRST NAMED RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTION
SECOND NAMED RESPONDENT

Synopsis:

- [2004] 2 IR 442

Facts: The applicant was charged that with an offence contrary to section 2 of the Larceny Act, 1916 as amended by section 9 of the Larceny Act, 1990. Brendan Duffy was also charged with the same offence. On 11 April 2002 Judge Malone directed that a security video tape for the night in question be made available to Mr Duffy. However it emerged that the relevant tape was no longer available and accordingly an unopposed order for prohibition was made in favour of Mr Duffy by the High Court on 10 March 2003. The applicant was granted leave to seek judicial review by way of an order of prohibition preventing her trial on the said charge on the grounds that her right to a fair trial had been violated by the failure of the Gardai to obtain and/or preserve the aforementioned video tape. The applicant further submitted that she was entitled to an order of prohibition on the basis of equality before the law as contained in Article 40.1 of the Constitution as her co-accused had been granted prohibition on the same grounds.

Held by Kearns J in refusing the application:

1. That the applicant failed to show or demonstrate how the absence of the video material might conceivably prejudice her trial or create a real risk of an unfair trial.

2. That the omission of the Gardai to obtain and preserve the video was not of such significance as to warrant the making of a prohibition order given the existence of the identification evidence and the fact that the applicant had admitted committing the offence.

3. That the applicant had delayed in seeking the relief. In the context of video evidence delay had a special meaning derived from the short life expectancy of video surveillance material.

Reporter: L.O'S.

1

Mr. Justice Kearns delivered the 20th day of May, 2004.

2

The applicant in these proceedings was on 10 th March 2002 charged that on the 9 th March 2002 at Shellbourne Park, South Lotts Road, Ringsend, Dublin 4, she did steal property to wit, a black wallet and £60 in cash, the property of Emma Hawkins, contrary to s. 2 of the Larceny Act, 1916 as amended by s. 9 of the Larceny Act, 1990.

3

Another person, Brendan Duffy, was similarly charged on the said occasion, both in respect of stealing the said wallet and of handling same contrary to s. 33 of the Larceny Act 1916 as amended by s. 3 of the Larceny Act 1990.

4

The applicant now seeks from this court an order of prohibition preventing her trial on the said charge.

5

Leaves to seek judicial review by way of prohibition was granted by this court on 15 th July, 2002 on grounds which may be summarised as follows:-

6

(1) that the right of the applicant to a fair trial has been violated by the failure of the Gardai to obtain and/or to preserve a video tape of the incident the subject matter of the charge against the applicant

7

(2) that the second named respondent failed to comply with the principles of natural and constitutional justice and basis fairness of procedures by failing in their duty to seek out and obtain all relevant evidence having a bearing or a potential bearing on the guilt or innocence of the accused

8

(3) that such failure amounted to a violation of the rights of the applicant to a fair trial in accordance with natural and constitutional justice

Background
9

On Saturday night, 9 th March 2002, Emma Hawkins went to Shellbourne Park Dog Track in Dublin with her boyfriend Joseph Sullivan. At the dog track she met Mary Harnett, Matt Lee, who is or was Mary Harnett's partner and Sarah Sullivan, who is a sister of Joseph Sullivan. Towards the end of the evening, the group was gathered in a downstairs bar near the entrance to the outdoor viewing area. They were standing close to a pillar which bad a shelf built on to it where they had placed their drinks. The group had removed their bags and jackets and had placed them on the floor beside the pillar.

10

Emma Hawkins, in her statement of proposed evidence, states that she saw a woman whom she did not know drag her handbag away from the pillar with her right foot. She then realised that her handbag was open and, on checking her bag, discovered her black leather wallet was missing. On making some exclamation to this effect, the woman who had been dragging the bag away with her foot, commenced to run towards the exit and Emma Hawkins pursued her, grabbing her right arm. This person, who later identified herself as the applicant herein, then threw the wallet towards another man, but Joseph Sullivan managed to grab the wallet before this other man, later identified as Brendan Duffy, got to it. At this stage, security personnel moved in, surrounding the woman and man who had tried to get the wallet and held them until the Gardai arrived.

11

Garda Patrick French and Garda Bernadette Lacey arrived at Shellbourne Park Race Track at about 10.30 p.m. and were brought by security personnel to a room at the rear of the ground floor where they met Emma Hawkins. She described the incident, including the fact that the man to whom the wallet had been thrown had attempted to flee but was stopped by security personnel. Garda French also spoke to Joseph Sullivan and Mary Harnett who had also witnessed the incident and who corroborated the account furnished by Emma Hawkins. Garda French also spoke to Karen O'Callaghan and, having cautioned her, asked her if she had stolen the wallet. It is alleged that in response she nodded and muttered yes. The assertion that she made this admission is corroborated in the statement of proposed evidence of Garda Barnadette Lacey. The applicant gave her name to the Gardai on request, as did Brendan Duffy, who made no reply to various questions put to him by the investigating officers. Based on the information they had received from the three eye witnesses, the Gardai proceeded to arrest both Karen O'Callaghan and Brendan Duffy and bring them to Irishtown Garda Station. Having been charged as aforesaid, both were granted station bail to appear at Court 46 on 28 thMarch 2002. On that occasion evidence of arrest, charge and caution was given and the case was remanded until 11 th April 2002. On that occasion, Brendan Duffy's solicitor made an application to the court that a copy of the security video tape from Shelbourne Park for the night of 9 th March 2002 be furnished to Mr. Duffy's legal advisers before the next court date.

12

In this regard it should be noted that Brendan Duffy had attended his legal advisers on 9 th April 2002 and told them in the course of a consultation that he had been told by the Gardai after his arrest that the incident was on video. Garda French, however, denies in his affidavit that he made any reference whatsoever to Mr. Duffy about a video, asserting instead that he believed the evidence of the three eye witnesses would be sufficient to prosecute the case. In his statement of proposed evidence, he further asserts that the video cameras in Shelbourne Park are passive in the sense that they are not monitored. He further asserts that the incident may not have been on tape.

13

Judge Malone on 11 th April 2002 directed that the video be made available to the accused Brendan Duffy or his legal advisers. Accordingly on 18 th April 2002 Garda French called to Shellbourne Park Where he was informed by security personnel that they had 31 video tapes, one for each day of the month. This meant that the tape for the 9 th March 2002, had been taped over on 9 th April 2002, some two days before Mr. Duffy's solicitor had been granted the production order for same in court.

14

Thereafter Judge Malone remanded the case against Brendan Duffy for hearing to Court 46 on 15 th October 2002. Separate judicial review proceedings were brought on behalf of Brendan Duffy seeking precisely the same reliefs as are sought by the applicant in the present case. Leave for that purpose was granted by the High Court (McKechnie J.) on 1 st July, 2002. Those proceedings were not contested by or on behalf of the D.P.P. but were, on a date subsequent to the leave application in the instant case, resolved on the basis that the D.P.P. was not proposing to proceed further with the prosecution against Brendan Duffy arising out of this incident. Accordingly an unopposed order for prohibition was made by the High Court ( Ó Caoimh J.) on 10 th March, 2003.

15

That being so, the applicant sought, with the consent of the respondent in the instant case, to enlarge the grounds in the present case, to include the additional ground that the applicant was or is entitled to an order of prohibition on the basis of the guarantee of equality before the law contained in Article 40.1 of the Constitution in circumstances where here co-accused, having been charged with the same offence, was granted prohibition in judicial review proceedings where prohibition had been sought on the same grounds relating to the non-availability of the video. Given that these developments took place subsequent to the granting of leave by this court in the present case, I decided to grant the application to allow the applicant argue this further additional ground in these proceedings.

Submissions of the Parties
16

On behalf of the applicant, Dr. Forde SC submitted that there was a clear duty and obligation on the Gardai in the instant case to seek out and preserve all relevant evidence going to guilt or innocence, including, in particular, video evidence of the area of Shelbourne Park Stadium where the alleged offence took place. His client had furthermore asserted that he had been informed by the Gardai that...

To continue reading

Request your trial
10 cases
  • McFarlane v DPP
    • Ireland
    • Supreme Court
    • 7 March 2006
    ...EVIDENCE 5ED 1979 15 CRIMINAL EVIDENCE ACT 1992 S30 MCGRATH EVIDENCE 2005 691 O'CALLAGHAN v JUDGES OF DUBLIN METROPOLITAN DISTRICT COURT 2004 2 IR 442 315/2003 & 49/2006 - Hardiman [Murray Geoghegan Fennelly agr] Kearns - Supreme - 7/3/2006 - 2007 1 IR 134 2006 35 7440 2006 IESC 11 1 JUDGM......
  • McFarlane v DPP
    • Ireland
    • Supreme Court
    • 5 March 2008
    ... ... /Prosecutor AND THE MEMBERS OF THE SPECIAL CRIMINAL COURT Notice Parties [2008] IESC 7 ... v WATERFORD & LIMERICK RAILWAY CO 1885 16 LR IR 314 COX v DUBLIN CITY DISTILLERY (NO. 2) 1915 1 IR 345 AKRAM v MIN JUSTICE 2004 1 ... 161 and that of Gannon J in O'Flynn v District Justice Clifford [1988] I.R. 740 ... While these were authorities ... ...
  • Dowling and Others v Judge Flann Brennan
    • Ireland
    • High Court
    • 11 November 2010
    ...1977 IR 193 SWEENEY v DISTRICT JUSTICE BROPHY & DPP 1993 2 IR 202 O'CALLAGHAN v JUDGES OF DUBLIN METROPOLITAN DISTRICT COURT & DPP 2004 2 IR 442 2004/37/8581 2004 IEHC 187 DPP v MCCARTHY & ORS 2008 3 IR 1 2007/19/3965 2007 IECCA 64 LENNON v DISTRICT JUDGE CLIFFORD & DPP 1992 1 IR 382 1993 I......
  • Molloy v DPP
    • Ireland
    • High Court
    • 13 January 2006
    ...UNREP SUPREME 9.4.2003 2003/41/9855 Z v DPP 1994 2 IR 476 1994 2 ILRM 481 O'CALLAGHAN v JUDGES OF THE DUBLIN METROPOLITAN DISTRICT COURT 2004 2 IR 442 CONNOLLY v DPP 2003 4 IR 121 COLE v JUDGE OF THE NORTHERN CIRCUIT & DPP UNREP HIGH COURT MACKEN 17.6.2005 2005/11/2311 ROAD TRAFFIC ACTS 1......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT