Dunne -v- D.P.P., [2002] IESC 27 (2002)

Docket Number:142/01
Party Name:Dunne, D.P.P.
Judge:Hardiman J. / McGuinness J. / Fennelly J.

JUDGMENT BY: Hardiman J.

THE SUPREME COURTMcGuinness J. 142/01

Hardiman J.

Fennelly J.







JUDGMENT delivered the 25th day of April, 2002, by Mr. Justice Hardiman.

We are long habituated to the idea that technology and science can snare the criminal. From the familiar photograph and fingerprint to the microscopic fragment of hair or tissue, the role of their products in detection and the proof of guilt has entered into the public consciousness. The work of the criminalist, the SOCO, chemist, the photographer, above all the DNA expert, are firmly established. The law itself has changed to accommodate them. A suspect may be fingerprinted, photographed, compelled to give up his clothing and possessions for testing and to supply samples of his hair, tissue or bodily

fluids under a variety of statutes. Apart from specific powers, the essential criteria for such testing is set out in the Criminal Justice (Forensic Evidence) Act, 1990, in Section 2(5)(b) that there is reasonable ground for believing that "the sample will tend to confirm or disprove the involvement of the person from whom the sample is to be taken in the ........ offence". See also the Road Traffic Act 1994 Sections 12 - 15, the Measuring and Photography of Prisoners Regulations 1955, (made under the Penal Servitude Act 1981), Criminal Justice Act 1984 Sections 4,6, and 28, Criminal Evidence Act 1992 Section 16, Criminal Justice Act, 1997 Sections 7, 11, 12, 19, the Health Safety and Welfare Act, 1989 Section 34.

None of this is controversial. If science or technology can provide certainty in matters of great importance which would otherwise be determined on human testimony which may be fallible or worse, who but a guilty man would not willingly invoke its aid? On this theory both individuals on whom suspicion has fallen (mandatorily) and whole populations (voluntarily) have been submitted to scientific and technological tests. The balance has long been struck in favour of the use of technology in the search for the perpetrators of crime, even when the processes involved are minimally invasive or transiently painful or undignified for innocent people. The greater good prevails.

This development is due in large measure to the development of techniques of previously unimagined sophistication, from the telephoto lens and the video camera to the extraordinary precision of DNA analysis. Additionally, and at much the same time, our faith in some older techniques has been undermined. From visual identification to alleged confessions, the last three decades have provided excellent reason for avoiding over reliance on them.

This case does not challenge any of these developments. It seeks to take them further. It raises the question, is it open to the authorities on whom such wide powers and resources have been conferred by law or by technology, to decide in a particular case, that they will not use them? Alternatively, if for no stated reason the authorities simply do not avail of some technical assistance in the detection of crime, which might have inculpated or exculpated the suspect, is this relevant to their ability to prosecute him using evidence of a more traditional sort?

Video cameras are now a prominent part of the street furniture of our towns and cities, including some housing estates, and of the equipment of business premises. Their role in the prevention and detection of crime is obvious and well publicised. The Gardaí regularly appeal for assistance on the "Crimeline" programme by showing video tapes of robberies. Witnesses are asked to view video footage. Notorious crimes such as the murder of the late Jamie Bulger were solved in large part by inspecting video film from dozens of retail outlets. Even when a video film does not allow positive identification of an individual it may allow an expert to gauge the height and build of a person shown, so as to put one sort of suspect within the net of suspicion, and thereby exculpate another sort. Recent weeks have seen the allocation of millions of Euro of public money to provide video coverage of the public areas of large provincial towns, and an expansion of the existing video coverage in the capital. Shops routinely display notices to the effect that the premises are covered by video cameras "for your protection and for the detection of crime". In particular, premises which stay open late at night and specifically Filling Stations and the shops often associated with them, are obviously and routinely subject to video surveillance.

Video Evidence.

Video evidence, accordingly, can have very dramatic effect in appropriate cases. If the film is clear, it approximates to having a good eye witness. Unlike human witnesses, however, what the camera sees can be played over and over again and consistencies or inconsistencies with other evidence noted. Even an unclear image can permit the exclusion of a particular person. In my judgment in Braddish v. DPP (Supreme Court unreported 18th May, 2001) I said:-

"It would be difficult to think of evidence more directly relevant than a purported video tape showing the commission of the crime".

Despite this, it has often been the experience of those concerned with the defence of criminal cases, and with civil litigation, that when video evidence is sought from public or private sources it is unavailable either due to alleged malfunction of the equipment or, more commonly, because it has been "wiped". The unavailability of video evidence may not be, and in the majority of cases is not, sinister in the sense of suggesting deliberate destruction. The Defendant in a criminal case may not (as in Braddish) have been arrested for some months after the crime and may not have been charged until many more months have elapsed. At least until arrest, and probably until after a charge has been preferred, it is difficult to see that the eventual Defendant would have had any right to require the procurement of evidence. The prosecution rarely suffer this particular disadvantage: they are first on the scene and usually in a position to ascertain whether there is a video camera and to take possession of the tape before it is "wiped".

Precisely because video footage may be definitive of guilt or innocence its absence will be bitterly regretted by an innocent Defendant and a guilty one will ape the same sentiment.

Legal aspects of video evidence

The Court has not been referred to any statute or regulation relating specifically to video evidence. Nor is there any statutory or regulatory rules in relation to the obtaining and preservation of evidence generally. The matter has been left to the Courts. In my judgment in Braddish I cited with approval the statement of Lynch J. in Murphy v. DPP [1989] ILRM 71 where, having surveyed the authorities, the learned judge said:-

"The authorities establish that evidence relevant to guilt or innocence must in so far as is necessary and practicable be kept until the conclusion of the trial. These authorities also apply to the preservation of Articles which may give rise to the reasonable possibility of securing relevant evidence".

In arriving at this conclusion Lynch J. had surveyed a number of early authorities including the judgment of Pallas C.B. in Dillon v. O'Brien and Davis [1897] 20 LR IR 300. There, the learned Chief Baron had said:-

"The interest of the State in the person charged being brought to trial in due course necessarily extends as well to the preservation of material evidence of his guilt or innocence as to his custody for the purpose of the trial. His custody is of no value if the law is powerless to prevent the abstraction or destruction of this evidence, without which his trial will be no more than an empty form. But if there be a right to production or preservation of this evidence I cannot see how it can be enforced otherwise than by capture".

Dillon v. O'Brien and Davis was a civil action for detinue of certain article which police officers had taken possession of at the time of an arrest. The Defendants said that the items were required as evidence to support charges of combination and conspiracy. They therefore pleaded that they had "necessarily seized taken and detained the chattels for the purpose of producing the same as evidence.....". This plea was upheld in an exhaustive judgment of the Chief Baron in which Dowse B. and Andrews J. concurred.

Accordingly, the power to seize goods of evidential significance is based in the interest of the State itself, and that interest is described as an interest "in the person charged being brought to trial in due course....". (Emphasis added) The right to seize or "capture" such items exists in order to prevent their destruction, which is a manifest risk in the case of a video tape. The learned Chief Baron also spoke in terms of a "right to production...... of this evidence", which can scarcely be understood as a right existing in one party only. Very significantly the right is to the production of evidence of innocence as well as guilt.

A few years earlier, the Queen's Bench Division in England had taken a view similar to that of Pallas CB. In R. v. Lushington, ex parte Otto [1894] I QB 420 the Defendant had sold goods to Mr. Otto. He was subsequently arrested on foot of an extradition warrant alleging the theft of the same goods in France. His extradition was ordered and Otto sought an order for the return of the goods to him. He was unsuccessful. Wright J. said:-

"In this country I take it that it is undoubted law that it is within the power of, and is the duty of, Constables to retain for use in court things which may be evidences of crimes......".

The word "retain" in this sense is defined by the Oxford English Dictionary as "to keep in custody or under control, to prevent from departing, issuing or separating, to hold fixed in some place or position".

In my view, the existence of these...

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