Dunne v DPP

JudgeKearns J.
Judgment Date23 March 2001
Neutral Citation[2001] IEHC 45
CourtHigh Court
Docket NumberNo. 297 JR/1999
Date23 March 2001

[2001] IEHC 45


Kearns J.

No. 297 JR/1999









DUTTON V DPP UNREP FLOOD 9.7.1997 1998/5/1475

DALY V DPP UNREP SUPREME 11.4.1994 1998/5/1167



Criminal Law

Criminal; fair trial; inspection of evidence by defence; judicial review; applicant seeking inter alia order prohibiting his trial for robbery; applicant had been accused of committing robbery at a service station; video tape relating to service station on date of robbery had not been made available to accused, nor was any explanation furnished for its non existence or non production; whether Gardai had been given the relevant tapes; whether delay of accused in seeking to inspect the tapes compels the court to exercise its discretion against granting relief; whether the absence of the material rendered it impossible for the trial judge to give appropriate instructions to the jury; whether any injustice would be done to the applicant; whether the court should intervene to restrain a trial were an unfair trial can be avoided by directions and proper charges given to the jury by the trial judge.

Held: Relief denied.

Dunne v. D.P.P. - High Court: Kearns J. - 23/03/2001

The applicant sought to prohibit his impending trial on the grounds that a video of the incident was not available. Kearns J was satisfied that the trial judge could deal with such matters by way of instructions to the jury and refused the relief sought.


Kearns J.delivered the 23rd day of March, 2001.


This is an application for Judicial Review made pursuant to an Order granting leave to proceed made on the 5th November, 1999 by the Supreme Court. The relief sought is an Order prohibiting a trial in the Circuit Criminal Court in which the Applicant is accused of committing robbery at a service station in Palmerstown, Co. Dublin on the 18th January, 1998. The Applicant further seeks a declaration that the Applicant was entitled to an opportunity to inspect a video of the location of the robbery, and to a further declaration that the Respondent and the Gardai were obliged to preserve such video evidence.


At 6 p.m. on the date in question Catherine Pidgeon was working at the service hatch of Parkway Service Station in Palmerstown. Three youths approached the service hatch, one of whom had a knife, demanding money which the terrified young girl duly handed over, together with some cigarettes. The youths then ran off.


There was a video system in operation in the forecourt of the garage which covered the precise locus of the said offence and the surroundingareas.


In an Affidavit sworn by the Applicant's Solicitor, Mr. Murrough O'Rourke deposes that he spoke with Mr. Brian Torley, the Manager of the garage, who advised that theGardai, on numerous occasions between September 1997 and June 1999 either requested or were given video recordings of offences which occurred at the said location, and indeed were also given video recordings for periods when no offence on the said premises had been reported. Mr. Torley advised Mr. O'Rourke that during the weeks before and after the 18th January, 1998 at least three and possibly four robberies or attempted robberies took place at the same premises.


Arising out of other enquiries, the Applicant was interviewed and made a statement on the 11th of March, 1998 in the presence of Garda Denis Kenny, the main investigating officer, admitting his involvement in the offence. The Applicant was subsequently charged and a book of evidence was served on the 10th of November, 1998. The Applicant was sent forward for trial to the Dublin Circuit Criminal Court and was arraigned on the 16th December, 1998. His trial was subsequently fixed for the 28th January, 1999.


On that date, an application was made on the Applicant's behalf to adjourn the trial so as to permit his legal advisors to view a video tape of a separate robbery at Chapman Superstore in Clondalkin on March 6th, 1998 in respect of which the Applicant was charged in separate proceedings and to which offence he pleaded guilty. The adjournment application was granted and a new trial date was fixed for February 26th, 1999.


On the 29th January, 1999 the Applicant's Solicitors wrote to the Office of the Chief State Solicitors seeking copies of the video tape of both the Clondalkin robbery and also all video recordings made at Parkway Service Station on January 18th, 1998. Certain videos were furnished to the Applicant's advisors, but the same did not include a video for the 18th January, 1998.


Subsequently in July 1999 an application for discovery of this particular video recording was made before the Circuit Court, which said application was refused as theCircuit Judge was not satisfied that any video was in existence in relation to the matter. On July 29th, 1999, Geoghegan J. in the High Court refused leave to apply for Judicial Review. which said Order was reversed on appeal to the Supreme Court.


For whatever reason, the tape relating to the service station on the 18th January, 1998 is not available, nor has any explanation been furnished for either its non existence or non production.


Mr. Brian Torley in an Affidavit sworn on the 7th day July, 1999 deposed to the existence of the video camera and to the regular occurrence of robberies and other offences at the premises. In the ordinary course when the Gardai would arrive on the premises following an incident, he would show the relevant video tape of the time period of the said offence to them and immediately thereafter give the video cassette containing the relevant video to the Gardai.


Although the video system was in situ on the day in question, Mr. Torley states that he does not recall the particular robbery or the procedure adopted in respect of the video, mainly because of the multiplicity of incidents around the same period. He believes it is very unlikely that the usual procedure of handling over the video would not have been followed and that he would be likely to remember a departure from the procedures worked out with the Gardai.


In an Affidavit sworn on the 21st February, 2000. Garda Denis Kenny of Ronanstown Station deposed that he does not have, nor did he ever have, in his possession any video tape purporting to relate to the 18th January, 1998 at the service station. Nor to the best of his belief, was it ever given to or obtained by any other member of an Garda Siochana concerned with the investigation of the offence.


For the sake of completeness I should state that a further application for discovery was brought before Kelly J. in the High...

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