Hand v DPP

JurisdictionIreland
CourtHigh Court
JudgeMR JUSTICE O'KEEFFE
Judgment Date02 July 2009
Neutral Citation[2009] IEHC 395
Docket NumberRECORD NOS 833, 834 & 835 JR/2008
Date02 July 2009

[2009] IEHC 395

THE HIGH COURT

RECORD NOS 833, 834 & 835 JR/2008
Hand v DPP
[2009] IEHC 395

BETWEEN

SHANE HAND, MARK HAND AND DEREK HAND
APPLICANTS

AND

DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT

RSC O.84 r7

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S15

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S4

LUDLOW v DPP UNREP SUPREME 31.7.2008 2008/36/7748 2008 IESC 54

DUNNE v DPP UNREP SUPREME 24.2.2009 2009 IESC 14

PERRY v JUDGES OF THE CIRCUIT CRIMINAL COURT & DPP UNREP SUPREME 28.10.2008 2008 IESC 58

CRIMINAL LAW

Evidence

Duty to preserve - Assault - CCTV footage - Failure to preserve evidence -- Whether real and substantial risk of unfair trial - Principles to be applied - Whether applicant had discharged onus of proof that risk of unfair trial - Ludlow v DPP [2008] IESC 584, (Unrep, SC, 31/7/2008), Dunne v DPP [2009] IESC 14, (Unrep, SC,24/2/2009), Scully v DPP [2005] 2 ILRM 203 and Perry v Judges of the Circuit Criminal Court [2008] IESC 58 (Unrep, SC, 28/10/2008) - Rules of Superior Courts 1986 (SI 15/1986), O84 r 7 - Non-fatal Offences Against the Person Act 1997 (No 26), ss 3 and 4 - Criminal Justice Act 1951 (No2), s 15 - Prohibition refused - (2008/833, 834 & 835 JR - O' Keeffe - 02/07/2009) [2009] IEHC 395

Hand v DPP

EX TEMPORE JUDGMENT OF
MR JUSTICE O'KEEFFE
delivered on the 2nd day of July 2009
1

There are three applications before me by Shane Hand, Mark Hand and Derek Hand. I propose to deal first with Shane Hand's case although the factual background which I will recite and the legal principles which I will recite are common to all three cases.

2

I will try this morning, I have up until some time shortly before 11.00 a.m. to deal with Shane Hand's case, if I cannot deal with it - well, I will not be able to deal with the other two, then I'll deal with them tomorrow or some convenient time but I will say what I have to say now has to be incorporated into the judgment relating to all three.

3

So the Notice of Motion in this case seeks and the liberty was given by way of to apply for judicial review for the following reliefs: an injunction by way of application for judicial review restraining the Respondent from prosecuting the Applicant in respect of the prosecution entitled"The DPP v Mark, Shane and Derek Hand".

4

A Declaration that the Applicant's right to a fair trial in the prosecution or in any other prosecution or in any other prosecution or in any other prosecution purporting to arise from the allegations, the subject matter thereof, has been irretrievably prejudiced by the failure of the Respondent to preserve the security footage following an incident which is the subject of a criminal prosecution; security footage known colloquially as "CCTV". An order pursuant to Order 84, Sub-Rule 7 of the Rules of the Superior Court staying the prosecution pending determination of proceedings and further orders and costs. The application is grounded upon the Affidavit of Mr. Collier who is from Michael J. Staines & Company, Solicitors to the Defendants in this case, and he sets out in paragraph 1 that the Applicant, that is Shane Hand, is one of the three co-accused who are all brothers and all of whom are alleged to have been involved in an incident outside a nightclub on the 24th of April, 2005.

5

The Respondent, namely the DPP, has instituted criminal proceedings against the Applicant and his brothers as a result of the incident. There were originally summonses which are now counts on the indictment. The Applicants were sent forward for trial before the Dublin Circuit Criminal Court on the 19th of June, 2007 and the solicitor refers to the Book of Evidence and the Bill of Indictment and says that the Applicant was originally charged with an offence contrary to Section 3 of the Non-Fatal Offences Against the Person Act 1997 and also with an offence of violent disorder contrary to Section 15 of the Criminal Justice (Public Order) Act, 1994. Subsequent to these matters being set forward for trial, the Respondent has added a further charge of assault causing serious harm contrary to Section 4 of the Non-Fatal Offences Against the Person Act 1997 to the indictment.

6

As appears Mr. Collier says, from the Book of Evidence, videotape evidence of CCTV footage from the Northside Shopping Centre is described in Exhibit 1 and Exhibit 2 is described as 10 photo stills from Exhibit 1. He says that the Northside Shopping Centre is adjacent to the scene of the alleged incident; the subject matters of the charges. He says that as appears from the stills, they are of very poor quality. He then says that on the 17th of April, 2008 the Respondent communicated with all the Applicants that the CCTV footage was lost and was incapable of retrieval and he says that the Applicant is at a serious disadvantage in respect of the preparation of his case, as he cannot now appraise the security footage from his own view point in like manner as that of the prosecution, wherein certain stills were obtained following their viewing of same.

7

He further says that it is incumbent upon the Respondent to preserve and secure all evidence relevant to the issue of guilt or innocence of an accused until the determination of the trial process, otherwise an accused, as in this instance, is denied the right to prepare his defence and/or challenge and/or rebut the evidence of the prosecution witness.

8

Then he deals with the background, how he attended voluntarily for interview at Coolock Garda Station so as he could be interviewed. He deals with the question of the CCTV footage and all the letters that were written in order to get that information culminating, as I say, on the 17th of April, 2008, when it was conceded by the Respondent that the CCTV footage had been lost and would be recovered. They then asked the Circuit Court to strike out the proceedings on the basis that the application had been irretrievably prejudiced. The presiding judge heard legal arguments and submissions before refusing the Applicant's application and then this application is brought. In paragraph 19 of the Affidavit, he says that "the CCTV footage has irretrievably prejudiced the Applicant's rights under the constitution of the European Convention on Human Rights to a fair trial in due course of law for all reasons as outlined in the Statement of grounds already had herein". He says "I aver and confirm that any matters of fact mentioned in that Statement of Grounds are correct and I endorse them as though set out herein". I refer to that paragraph because it purports to be confirmation by the solicitor that matters of fact mentioned in the Statement of Grounds are correct. It appears to be one of the few mentions in relation to the accuracy or truth or otherwise of the matters which are set out in the Statement of Grounds. He does say in paragraph 2 of the Affidavit that he verifies the facts stated in the Statement grounding the application. The Affidavit also refers to the engagement of an Expert which they had sought to assist the application in relation to the CCTV footage and the stills, and I think there is a report of Mr. Fergal O Lideadha, which is set out in the Affidavit in relation to that matter; setting out his experience saying that the quality of the images are poor, very little detail is evidence and he has been asked if it would be possible to extract images of a higher quality from the relevant CCTV footage. He also then refers to the fact that he has informed that the CCTV system in the Northside Shopping Centre has been altered since the time of this incident in April 2005.

9

The next matter I want to look at before I look at the Statement of Grounds is, I want to look at the various judicial authorities in relation to this matter. It is sufficient to say that there has been a considerable development of the law in this area with many cases coming before the High and Supreme Court and, in its own sector, jurisprudence has developed. Many of the cases that have historically been decided in relation to this matter, are instanced in the judgement of Ms. Justice Denham in Ludlow v DPP, and are set out on pages 8, 9 and 10 and indeed, many of them have been referred to by the Applicants in their submissions to this Court. Having considered the various judgments, I find assistance from the judgment of, again, the Supreme Court, in Robert Dunne v. DPP, a judgment of Mr. Justice Fennelly delivered on the 24th of February, 2009. That was a case in which, again CCTV footage had gone missing in relation to a robbery. I go to page 3 of that Judgment, where Mr. Justice Fennelly at paragraph 16 says as follows "I endeavoured in my judgment of the 3rd of July, 2008 in Savage v. DPP, to summarise the principles applicable to applications of this type". Hardiman J. in his judgment in that case agreed with the summary which omitting matters not relevant to the present case, is as follows, and he quotes all of these matters which I, for the purposes of the record, I'll read into the record:

10

(a) It is the duty of the prosecution authorities and in particular, An Garda Siochana, to preserve and retain all evidence which comes into their possession, having a bearing or a potential bearing on the issue of guilt or innocence of the accused. This duty flows from their unique investigative role as a police force.

11

(b) The missing evidence in question must be such as to give rise to a real possibility that in its absence, the accused would be unable to advance important material to its defence. This is like...

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