Dunne v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Fennelly delivered
• Judgment Date: 24 February 2009
• Neutral Citation: [2009] IESC 14
• Court: Supreme Court
• Date: 24 February 2009

[2009] IESC 14

THE SUPREME COURT

Denham J.

Hardiman J.

Fennelly J.

APPEAL NO 382/2005

Dunne v DPP

Between:-

Robert Dunne

Applicant/ Respondent

-and-

Director of Public Prosecutions

Respondent/Appellant

CRIMINAL JUSTICE ACT 1984 S4

SAVAGE v DPP UNREP SUPREME 3.7.2008 2008 IESC 39

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

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

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

CRIMINAL LAW

Evidence

Failure to preserve - CCTV footage - Robbery - Whether respondent discharged onus of establishing real risk of unfair trial - Apprehension - Finding of stolen videos in bag - Finding of disguise - Admissions - Duty of prosecution authorities - Failure to contest available evidence - Failure to deny guilt - Freedom to challenge admissibility of statements at trial - Savage v DPP [2008] IESC 39 (Unrep, SC, 3/7/2008); Scully v DPP [2005] IESC 11 [2005] 1 IR 242 and Dunne v DPP [2002] 2 IR 305 considered; Braddish v DPP [2001] 3 IR 129 distinguished - Appeal allowed (382/2005 - SC - 24/2/2009) [2009] IESC 14

Dunne v DPP

Facts: The High Court had restrained the prosecution of the respondent on a charge of robbery and the Director sought to appeal the order. The Gardai had lost or mislaid the CCTV footage and responsibility was admitted by the Director. The issue arose as to whether the absence of the CCTV video resulted in a real and serious risk of an unfair trial to the respondent.

Held by the Supreme Court per Fennelly J. (Denham & Hardiman JJ. concurring) in allowing the appeal and setting aside the order of the High Court and substituting an order refusing the application for judicial review, that the respondent was not able to demonstrate that the loss of the security tape exposed him to the risk of an unfair trial. The respondent had not sufficiently answered the assertion that there was uncontested evidence of the respondent having being caught red handed.

Reporter: E.F.

1 1.By an order made 15 ^th March 2004 on foot of an ex temporejudgment of Quirke J, the High Court made an order restraining the Appellant ("the Director") from continuing with the prosecution of the respondent on a charge of robbery of mobile phone cards, Playstation games and IR£200 cash at an Xtravision video shop at Greenhills, Tallaght, Co Dublin. The Director appeals against the order.

2 2.This is yet another "missing evidence" case. The gardaí have lost or mislaid the copy of the CCTV video footage of the robbery. At any rate, they are unable to produce it. It is unfortunate, to use no stronger expression, that the Court has to entertain so many applications for the prohibition of criminal trials for the sole reason that important evidence has been lost by the prosecuting authorities.

3 3.In the present case, the Director frankly admits his responsibility for the absence of the evidence. He limits his case to submitting that the respondent has notdischarged the onus of establishing that there is a real risk that he will not have a fair trial. That requirement is, of course, the central matter to be established in all these cases. While other issues have arisen in a number of the cases, the present case is concerned only with whether the absence of the CCTV video recording leads to a real risk that the respondent will not have a fair trial.

4 4.It is necessary, therefore, to summarise the facts. The facts regarding the offence emerge from the book of evidence. Those regarding the absence of the CCTV video appear from the affidavits sworn in the course of the judicial review proceedings.

5 5.On 23 ^rd March 2001 at about 10:40 pm, a robbery took place at the Xtravision video shop at Greenhills, Tallaght. There were two female staff behind the counter. Two youths came in. They were shouting. Both had their faces covered, one with white material, which turned out to be the sleeve of a white tee shirt with holes cut for the eyes, and the other with the hood of a dark coloured sweat shirt. One shouted: "where's the money" and pointed to the till; he ran around the counter to the till, which was open; he took money (later estimated at £200) from it. The one with a hood produced and waved a knife and demanded that the other till be opened. When it could not be opened, he demanded phone cards. One of the girls took him to the back of the shop where the phone cards were in a white plastic bag and gave it to him. The other youth (with the "white thing around his face") shouted: "where are the DVD's and Playstations. He grabbed all the Playstation games from the shelves; he put them into a big holdall bag. They then ran out of the shop.

6 6.Three other witnesses, customers in the shop, described both youths as being masked. The two girls later saw and identified the two youths on the video recording of the security tape. Though they could be seen, they could not be identified from the video, because their faces were covered. The time was recorded on the tape as being 22:47. The security video tape of these events was handed to the gardaí.

7 7.Garda David Weir of Tallaght received a call about the robbery from Garda Control while on duty in a patrol call in the area at 10:55 pm. He saw two youths who matched the description given. One was carrying a large bag. They ran and oneescaped, but one youth, who is the respondent, dropped the bag as he was caught. The bag contained a large number of Playstation games which were duly identified as being from the Xtravision store.

8 8.The respondent was arrested and detained pursuant to section 4 of the Criminal Justice Act, 1984. He made a complete signed statement of admission, after caution, to the robbery and of his role in it. This was completed after 1 am on 24 th March. The respondent was then released.

9 9.On a search of the area travelled by the two youths, the gardaí found a tee-shirt sleeve with two eye holes cut in it. This was shown to the respondent who identified it as the one he had used to cover his face during the robbery.

10 10.The respondent was arrested and charged with the robbery on 16 th September 2002 and was returned for trial on 4 ^th November 2002. The Court has not been given any reason for the lapse of time between March 2001 and September 2002. Indeed the respondent's solicitor mistakenly gave 4 ^th November 2001 as the date of return for trial.

11 11.The respondent's solicitor asked for disclosure of the video by letter dated 5 ^thc November 2002. According to the affidavit of Garda Weir, the video was placed in a safe in Tallaght Garda Station. It was to be an exhibit in the book of evidence. When he later went to recover it, it was missing. He has sworn that there is no reason to believe that it can be located. No other explanation has been offered for its absence. On 22 ^nd December 2002,...