Fagan v The Judges of the Circuit Criminal Court and Another

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 28 April 2006
• Neutral Citation: [2006] IEHC 151
• Court: High Court
• Date: 28 April 2006

[2006] IEHC 151

THE HIGH COURT

[No. 593 JR/2005]

FAGAN v JUDGES OF THE CIRCUIT CRIMINAL COURT & DPP

JUDICIAL REVIEW

BETWEEN

DAVID FAGAN

APPLICANT

AND

THE JUDGES OF THE CIRCUIT CRIMINAL COURT AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

CRIMINAL JUSTICE (THEFT & FRAUD) OFFENCES ACT 2001 S14

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S5

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S15

CONSTITUTION ART 38.1

CONSTITUTION ART 40.4.1

RSC O.84 r21

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

SCULLY v DPP 2005 1 IR 242 2005 2 ILRM 203

DUNNE v DPP 2002 2 IR 305 2002 2 ILRM 241

CONNOLLY v DPP & JUDGES OF METROPOLITAN DISTRICT COURT 2003 4 IR 121

RSC O.84 r21(1)

CRIMINAL LAW Evidence Procurement and preservation of evidence - Failure to preserve evidence - Whether obligation on prosecuting authority to preserve evidence - Whether sufficient for applicant to show that evidence has been destroyed or whether applicant must show there is real risk of unfair trial - Whether onus is on applicant to establish that there was serious risk of unfair trial as result of loss of evidence - Application refused (2005/593JR - Dunne J - 28/4/2006) [2006] IEHC 151 Fagan v Judges of Circuit Criminal Court

JUDICIAL REVIEW Delay Criminal prosecution - Application for judicial review brought on eve of trial - Application to extend time within which to bring application for judicial review - Discretion of court to extend time - Whether delay automatic bar to application for prohibition - Application refused (2005/593JR - Dunne J - 28/4/2006) [2006] IEHC 151 Fagan v Judges of the Circuit Criminal Court

The applicant sought an order of prohibition by way of an application for judicial review restraining the respondents from proceeding with the trial of him on certain charges on the grounds that there was a real risk he would not receive a fair trial having regard to the fact that certain CCTV footage of the alleged incident forming the subject matter of the charges, which was viewed by the Gardai was no longer available. The respondents opposed the application on the basis that the applicant delayed in seeking leave to apply for judicial review until 5 days prior to the trial date.

Held by Dunne J. in refusing the application: That inadvertence was not sufficient to excuse a delay of almost 7 months from the date the applicant became aware of the problem with the CCTV footage until the date he applied for judicial review and therefore the applicant was not entitled to an extension of time within which to bring that application. In any event the applicant failed to establish a serious risk of an unfair trial in the absence of the CCTV footage.

Reporter: L.O’S.

1 Ms. Justice Dunne delivered on the 28th day of April, 2006

2 The applicant in this case seeks an order of prohibition by way of application for judicial review prohibiting the respondents from proceeding with the trial of the applicant herein on charges of offences contrary to s. 14 of the Criminal Justice (Theft and Fraud) Offences Act, 2001 and s. 5 of the Non Fatal Offences Against a Person Act, 1997 and s. 15 of the Non Fatal Offences Against a Person Act, 1997. The matter was originally listed for trial before the Circuit Criminal Court on 15th June, 2005. The application herein was commenced on 10th June, 2005 when leave was granted by the High Court (Dunne J.) to apply for judicial review.

3 In addition to the principle relief sought, the applicant has also sought leave to extend the time within which to bring such application. Other ancillary relief is also sought. Such ancillary relief does not raise any issues on this application.

4 I do not think it is necessary to set out the grounds upon which the relief referred to above is sought save to say that this is a case in which the applicant faces trial in relation to the matters referred to above and there was CCTV footage taken of the alleged incident but in circumstances which will become clear, such footage is no longer available. As a result the applicant claims that there has been a failure to preserve evidence having a bearing on the issue of the guilt or innocence of the applicant. It is also alleged that as a result of the failure to preserve the evidence the applicant faces a real or serious risk that he will receive an unfair trial. The applicant refers to his constitutional right to a fair trial in due course of law in accordance with Article 38.1 and Article 40.4.1 of the Constitution. In essence what is complained of is that the Gardaí did not obtain CCTV footage in a timely manner so that the relevant footage when obtained by the Gardaí had in fact been overwritten with the result that the footage of the alleged incident is no longer available either to the Gardaí or to the applicant.

5 The affidavit of John M. Quinn, solicitor for the applicant sworn herein on 8th June, 2005, set out the background to this matter in some detail. It appeared that on 25th March, 2004, the applicant herein was arrested. The evidence forming the basis for the applicant's arrest was his alleged identification from CCTV footage recording a robbery at Movie Magic, Donaghmede, on 23rd March, 2004. According to the book of evidence Detective Garda Shane Davern viewed the footage of the robbery and states that he identified the applicant from the CCTV footage. A Garda Ciaran O'Neill also stated in the book of evidence that he identified the applicant as one of the parties involved in the alleged robbery. Further, having viewed the CCTV footage, Garda Ciaran O'Neill took possession of the CD containing the CCTV footage from one Lisa Plummer, the Assistant Manager of the shop. On 25th March, 2004, the CCTV CD containing the footage concerned was given by Garda Ciaran O'Neill to Garda Declan Maloney. Thereafter the applicant was, as already stated, arrested and brought to Santry Garda Station. In the course of his detention a full statement of admission was made in relation to the robbery. As Mr. Quinn states in his affidavit the statement of admission alleged to have been made by the applicant is the principle evidence against the applicant in the criminal prosecution.

6 The applicant was then charged on 25th March, 2004 as set out above. He was released on bail to appear in court on 20th April, 2004. A book of evidence was served on 30th June, 2004, and the applicant was returned for trial to Dublin Circuit Criminal Court on 23rd July, 2004. Thereafter the matter was adjourned on 23rd July, 2004, to 1st November, 2004, for mention only for the purpose of dealing with disclosure. On 30th July, 2004, the applicant's solicitor sought disclosure from the second named respondent including CCTV footage. On 1st November, 2004, the matter was further adjourned to 24th November, 2004, for mention only as the question of disclosure was outstanding. Thereafter the applicant's solicitor received a letter dated 22nd November, 2004, enclosing a number of additional statements dealing with further disclosure. Those statements comprised a statement of Garda Declan Maloney, Donal King of Advanced Digital Communications Limited, a computer technician and Susan Butterly of Movie Magic, Donaghmede.

7 The contents of those statements are summarised at para. 11 of Mr. Quinn's affidavit. From the statements referred to it appears that Garda Maloney received a downloaded copy of video evidence from Garda Ciaran O'Neill who had in turn received it from Ms. Plummer of Movie Magic on 23rd March, 2004. He (Garda Maloney) subsequently attempted to view the downloaded footage at Santry Garda Station and was unable to do so. He contacted Susan Plummer of Movie Magic a number of months subsequently arising from this difficulty and informed her that there was nothing on the disc supplied to the Gardaí on the night of the robbery. The computer technician, Donal King, confirmed that there was nothing downloaded onto the disc. The said Donal King checked to see if the digital video recorder at Movie Magic still had on its system the footage relating to the incident on 23rd March, 2004, but there was nothing in relation to that time on the system as most digital video recorder systems overwrite material after one month and this system had overwritten the alleged incident as it was more than a month since the incident had occurred when viewed by him. Accordingly it is clear that the CCTV footage is no longer available.

8 In his affidavit Mr. Quinn asserts that the CCTV footage, if available, would have the potential to exculpate as well as to inculpate the applicant. In those circumstances he states that the failure by the Gardaí to preserve the CCTV footage amounts to a breach of the duty to preserve evidence potentially relevant to the issue of the guilt or innocence of the applicant. He goes on to state that the applicant is extremely fearful and apprehensive that he will not receive a fair trial but that the same will proceed on the basis of uncorroborated alleged confession evidence.

9 Complaint was made by Mr. Quinn that although the applicant's legal advisors sought the CCTV footage by letter dated 30th July, 2004, it wasn't until 22nd November, 2004, that the second named respondent outlined what had happened in relation to the footage. He confirmed that when the matter was before the Circuit Criminal Court on 16th December, 2004, the matter was adjourned to 18th January, 2005, for arraignment. On that date counsel appearing for the applicant indicated that it was intended to bring proceedings for prohibition. A date for trial was fixed some time after that, namely, 15th June, 2005, in order to facilitate the applicant in bringing judicial review proceedings.

10 A supplemental affidavit was sworn herein by Mr. Quinn on 8th June, 2005. Having referred to an application...