D (C) v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Fennelly
• Judgment Date: 23 October 2009
• Neutral Citation: [2009] IESC 70
• Court: Supreme Court
• Date: 23 October 2009

[2009] IESC 70

THE SUPREME COURT

Denham J.

Fennelly J.

Kearns J.

APPEAL No. 187/09

D (C) v DPP

JUDICIAL REVIEW

BETWEEN

C.D.

APPELLANT/APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

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

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S2

SEX OFFENDERS ACT 2001 S37

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S19(1)

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S6

Z v DPP 1994 2 IR 476

C (D) v DPP 2005 4 IR 281 2006 1 ILRM 348 2005 IESC 77

MCFARLANE v DPP 2008 4 IR 117 2008/37/7968 2008 IESC 7

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

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

MURPHY v DPP 1989 ILRM 71

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

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

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

MCHUGH v DPP UNREP SUPREME 24.2.2009 2009 IESC 15

HAY v O'GRADY 1992 1 IR 210 1992 ILRM 689 1992/2/502

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

PERRY v JUDGES OF THE CIRCUIT CRIMINAL COURT & DPP UNREP SUPREME 28.10.2008 2008 IESC 58

TOOHEY v DPP & JUDGES OF THE CIRCUIT COURT UNREP SUPREME 3.12.2008 2008/60/12497 2008 IESC 64

O'DRISCOLL v DPP UNREP SUPREME 24.3.2009 2009 IESC 23

O'BRIEN v DPP UNREP SUPREME 16.12.2008 2008/48/10377 2008 IESC 67

CRIMINAL LAW

Evidence

Seeking out and preserving evidence - Duty of gardaí - Video evidence - CCTV cameras - Not all possibly relevant visual recordings downloaded - Absence of still photographs - Absence of photographs at half second intervals - Level of duty of gardaí regarding preservation of evidence - Whether duty must be interpreted realistically on the facts of each case - Whether risk of unfair trial established - Onus of proof - Applicable legal principles - Jurisdiction of trial judge to exclude evidence - Braddish v DPP [2001] 3 IR 127, [2002] 1 ILRM 151, Z v DPP [1994] 2 IR 465, DC v DPP [2005] IESC 77, [2005] 4 IR 281, [2006] ILRM 348, McFarlane v DPP [2008] IESC 7, [2008] 4 IR 117, McFarlane v DPP [2006] IESC 11, [2007] 1 IR 134, Dunne v DPP [2002] 3 IR 305, [2002] 2 ILRM 241, Savage v DPP [2008] IESC 39, [2009] 1 IR 185, Scully v DPP [2005] IESC 11, [2005] 1 IR 242, [2005] 2 ILRM 203, Murphy v DPP [1989] ILRM 71, Bowes v DPP [2003] 2 IR 25, McHugh v DPP [2009] IESC 15, (Unrep, SC, 24/2/2009), Hay v O'Grady [1992] 1 IR 210, [1992] ILRM 689, Ludlow v DPP [2008] IESC 54, (Unrep, SC, 31/7/2008), Perry v DPP [2008] IESC 58, (Unrep, SC, 28/10/2008), Toohey v DPP [2008] IESC 64, (Unrep, SC, 3/12/2008), O'Driscoll v DPP [2009] IESC 23, (Unrep, SC, 24/3/2009) and O'Brien v DPP [2008] IESC 67, (Unrep, SC 16/12/2008) considered - Criminal Law (Rape) (Amendment) Act 1990 (No 32), s 2 - Sex Offenders Act 2001 (No 18), s 37 - Criminal Justice Public Order Act 1994 (No 2) - Prohibition refused (187/09 - SC - 23/10/2009) [2009] IESC 70

D (C) v DPP

Facts: The appellant appealed to the Supreme Court against an order of the High Court restraining the prosecution of the appellant in the Circuit Criminal Court for a sexual assault on a female Garda officer. The incident took place outside Leinster House and was in an area covered CCTV cameras. A Garda inadvertently downloaded an incorrect segment from a camera but a number of stills were taken from the camera. The appellant complained that the absence of still photographs covering half-second intervals was unfair and prejudicial. The trial judge concluded that the missing evidence did not have a bearing on the guilt or innocence of the appellant.

Held by Fennelly J. (Denham, Kearns JJ. concurring), that the evidence surrounding the incident was carefully considered by the learned trial judge and he had committed no error of law, nor was any alleged. The Court was being asked to disagree with his view. Given the availability of footage from camera No. 1 and other stills., there was no basis for alleging a real risk of an unfair trial by reason of the absence of the video footage. The argument as to the alleged absence of stills based on half-second intervals was highly novel and technical. It posited a level of duty on the Gardai with regard to the preservation of evidence which went beyond anything that had occurred before. The standard proposed was not fair or reasonable, but far-fetched. The appellant had not discharged the burden of proof and had not demonstrated a real risk of an unfair trial. The appeal was without merit.

Reporter: E.F.

1 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 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 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 1990as 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 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 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 5 ^th 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 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 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 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 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 10. On 16 ^th 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 11. The High Court (Peart J) gave leave on 6 ^th 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...