Dunne v DPP

JurisdictionIreland
CourtSupreme Court
JudgeMrs Justice McGuinness, Mr. Justice Hardiman, FENNELLY J.
Judgment Date25 Apr 2002
Neutral Citation[2002] IESC 27
Docket Number[S.C. No. 142

[2002] IESC 27

THE SUPREME COURT

McGuinness, J.

Hardiman, J.

Fennelly, J.

142/2001
DUNNE v. DPP
JUDICIAL REVIEW

BETWEEN

ROBERT DUNNE
APPELLANT/APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT

Citations:

BRADDISH V DPP & HAUGH 2001 3 IR 127 2002 1 ILRM 151

MURPHY V DPP 1989 ILRM 71

CRIMINAL JUSTICE (FORENSIC EVIDENCE) ACT 1990 S2(5)(B)

ROAD TRAFFIC ACT 1994 S12

ROAD TRAFFIC ACT 1994 S13

ROAD TRAFFIC ACT 1994 S14

ROAD TRAFFIC ACT 1994 S15

MEASURING & PHOTOGRAPHING OF PRISONERS REGS 1955 SI 114/1955

PENAL SERVITUDE ACT 1981

CRIMINAL JUSTICE ACT 1984 S4

CRIMINAL JUSTICE ACT 1984 S6

CRIMINAL JUSTICE ACT 1984 S28

CRIMINAL EVIDENCE ACT 1992 S16

CRIMINAL JUSTICE ACT 1997 S7

CRIMINAL JUSTICE ACT 1997 S11

CRIMINAL JUSTICE ACT 1997 S12

CRIMINAL JUSTICE ACT 1997 S19

SAFETY HEALTH & WELFARE AT WORK ACT 1989 S34

DILLON V O'BRIEN & DAVIS 1897 20 LR IR 300

R V LUSHINGTON EX-PARTE OTTO 1894 1 QB 420

CHIC FASHIONS (WEST WALES) LTD V JONES 1968 1 AER 229

GHANI V JONES 1969 3 AER 1700

EBRAHIM V ELTHAN MAGISTRATESD 2001 1 AER 831

O'CONNELL, STATE V FAWSITT 1986 IR 362

NOLAN V DPP 1994 3 IR 626

B V DPP 1997 3 IR 140

O'C(P) V DPP 2000 3 IR 87

CRIMINAL PROCEDURE ACT 1993 S10(1)

BYRNE & BINCHY ANNUAL REVIEW OF IRISH LAW 1993

R V SWINGLER UNREP 10.7.1998 (EX TEMPORE)

US V LOUD HALK 628 F 2D 1139

ARIZONA V YOUNGBLOOD 1988 488 US 51

DINGER SHOULD LOST EVIENCE MEAN A LOST CHANCE TO PROSECUTE? STATE REJECTIONS OF THE US SUPREME COURT DECISION IN YOUNGBLOOD 2000 27 AJCL 329

COLLINS V YOUNGBLOOD 497 US 37

OFFENCES AGAINST THE STATE ACT 1939 S30

Z V DPP 1994 2 IR 471

D V DPP 1994 1 ILRM 435

NOLAN V DPP 1994 3 IR 626

P & F SHARPE V DUBLIN CITY & COUNTY MANAGER 1989 IR 701

CONSTITUTION ART 30.3

CONSTITUTION ART 38.1

J O'C V DPP 2002 3 IR 478

R V DERBY CEROWN COURT EX-PARTE BROOKS 80 CAR 164

AG REFERENCE (NO 1 OF 1990) (COURT OF APPEAL) 1992 QB 630

DALY V DPP UNREP SUPREME 11.4.1994 1998/5/1167

CRIMINAL JUSTICE ACT 1984 S4

Synopsis:

CRIMINAL LAW

Prohibition

Judicial review - Evidence - Practice and procedure - Discovery - Right to fair trial - Preservation of video evidence - Investigation of crime - Obligations of An Garda Síochána - Inculpatory statement made by applicant - Whether delay in seeking evidence would preclude granting relief sought - Whether real risk of unfair trial - Criminal Procedure Act, 1993 (142/2001 - Supreme Court - 25/4/2002)

Dunne v DPP - [2002] 2 IR 305 - [2002] 2 ILRM 241

Facts: The applicant had been charged with a robbery that had taken place at a filling station. There was a video surveillance system in operation. The applicant had allegedly made a statement admitting to the robbery. Before the applicant's trial came on for hearing the applicant's solicitor sought an adjournment in order to view video recordings made at the filling station on the day in question. A discovery application was brought before the Circuit Court by the applicant's solicitor seeking copies of the relevant video tapes. A member of An Garda Síochána maintained that video evidence relating to the day in the question had not been received by them.

The owner of the premises gave evidence that although he could not recall the particular robbery it was standard procedure that the Gardaí would remove any relevant video evidence when they arrived on the scene. Judge Dunne in the Circuit Court held that it could not be concluded that the video sought existed and refused the discovery application. The applicant's initiated judicial review proceedings seeking an order prohibiting the trial from proceeding on the basis of the failure to furnish the video evidence in question. In the High Court Mr. Justice Kearns refused the order sought holding that there was an onus upon an accused to seek such evidence as soon as reasonable possible and the applicant had delayed in this instance. Furthermore the making of an inculpatory statement by an accused at a relatively early stage in the investigation, which of itself provided independent evidence, would weigh against granting the relief claimed. The applicant appealed the judgment to the Supreme Court.

Held by the Supreme Court (McGuinness J, Hardiman J and Fennelly J (dissenting) delivering judgments) in allowing the appeal. McGuinness J held that there was no question of the Gardaí having failed to preserve evidence as there was no evidence that the

actual tapes had actually been in the possession of the Gardaí. There was however a duty by the Gardaí to seek out relevant evident when it was clearly relevant. On the facts of the case the appeal would be allowed. Hardiman J held that video cameras were now a prominent part of the street furniture of towns and cities and their role in the prevention and detection of crime was obvious and well-publicised. It was the duty of the Gardaí to seek out and preserve all evidence having a bearing or potential bearing on the issue of guilt or innocence. It would have been reasonable for a member of the Gardaí attending the scene to have inquired about the video evidence and no explanation had been offered as to why a tape was not obtained. The evidence against the applicant consisted of a few lines of a written statement. It was extraordinary that a very obvious means of obtaining independent evidence was not availed of. In cases where video evidence was likely to have been available there was an onus upon the Gardaí to explain why it was not sought or obtained. In addition it would be harsh to disqualify the applicant from the relief sought on the grounds of delay.

The appeal should be allowed and an order of prohibition granted. Fennelly J was not satisfied that the issue regarding the possession of video tape had been resolved. There was no evidence that the Gardaí had taken possession of the tape. From previous case law it appeared that a criminal trial would be stayed in the event of a risk to a fair trial provided there was proven misbehaviour by the prosecution. However none of the cases suggested that an accused person should be allowed evade trial because random events

had possibly prevented him from finding exculpatory evidence. There was a danger that there would be a shift to the adequacy of a police investigation rather than the guilt of an accused. The appeal should be dismissed.

1

Judgment of Mrs Justice McGuinnessdelivered the 25th day of April 2002

2

I have had the advantage of reading in draft form the judgments about to be delivered by Mr Justice Hardiman and Mr Justice Fennelly. Both judgments extensively review the facts of this case and the applicable law. I do not consider that I have anything relevant to add either in regard to the facts or in regard to the law. I shall therefore confine myself to a few brief remarks regarding the conclusions to be drawn in this case.

3

In his judgment Hardiman J. refers to and relies on what he rightly describes as "the main point of principle" in his earlier judgment (with which Denham J. and Geoghegan J. agreed) in Braddish v DPP (Supreme Court, unreported 18th May2001). In that judgment he stated:-

"It is the duty of the Gardai, arising from their unique investigative role, to seek out and preserve all evidence having a bearing or potential bearing on the issue of guilt orinnocence."

4

In the instant case the Applicant, Mr Dunne, is charged with the robbery of a sum of money from the Parkway Filling Station in Palmerstown on the 18th January 1998. The evidence of Mr Torley, the owner of the filling station, is that the various areas of the filling station were all covered by video camera surveillance. On previous occasions relevant video tapes from the filling station had been acquired by the Gardai in the course of other investigations. Mr Torley, however, cannot recall whether the Gardai either requested or obtained the video tapes covering the period of the robbery on the 18th January 1998. He is, however, certain that the video cameras were operative on that date.

5

The evidence of Detective Garda Denis Kenny, who is the officer in charge of the investigation but who was not present at the filling station on the night of the robbery is that no video tape of the events that occurred at the Parkway Filling Station was given to or obtained by any member of the Garda Siochana. This evidence is uncontradicted. No affidavit was sworn by the Garda or Gardai who actually attended at the scene of the robbery.

6

Since there is no evidence that the video tapes in question were ever in the possession of the Garda Siochana, there can be no question of a failure to preserve that evidence, as there was in the Braddish case or, for example, in Murphy v DPP [1989] ILRM 71. The decision of this Court turns, therefore, on whether the further prosecution of the Appellant should be prohibited on the ground that the Garda Siochana failed in their duty to "seek out" evidence which had "a bearing or potential bearing on the issue of guilt orinnocence".

7

In his judgment Fennelly J. expresses the view that to impose on the Gardai such a duty to seek out evidence represents a "verysignificant new step in the law". He envisages a danger that "there will develop a tendency to shift the focus of criminal prosecution on to the adequacy of the police investigation rather than the guilt or innocence of the accused" and that trials will be prohibited wherever a Court can be persuaded that the Gardai have failed toseek out any identifiable evidence which might even possibly tend to exonerate the accused. It seems to me that Fennelly J's anxieties in this regard are reasonable and that such dangers do exist. It is essential that a duty on the part of the Gardai to seek out relevant evidence should not be too widely interpreted. As was stated by Hardiman J. in Braddish v DPP, such a duty "cannot be interpreted as requiring the Gardai to engage in a disproportionate commitment of manpower or resources in an exhaustive search for...

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