John Stirling v District Court Judge Collins and DPP

JurisdictionIreland
CourtHigh Court
JudgeMR. JUSTICE HEDIGAN,
Judgment Date25 February 2010
Neutral Citation[2010] IEHC 45
Date25 February 2010

[2010] IEHC 45

THE HIGH COURT

No. 1817 J.R./2009
Stirling v Judge Collins & DPP
JUDICIAL REVIEW

BETWEEN

JOHN STIRLING
APPLICANT

AND

DISTRICT COURT JUDGE COLLINS

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTS

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

LUDLOW v DPP 2009 1 IR 640 2008/36/7748 2008 IESC 54

ENGLISH v DPP UNREP O'NEILL 23.1.2009 2009 IEHC 27

MELLETT v JUDGE REILLY & DPP UNREP HARDIMAN 26.4.2002 2002/16/3983

AG, PEOPLE v MCGLYNN 1967 IR 232

WARD v SPECIAL CRIMINAL COURT 1999 1 IR 60 1998 2 ILRM 493

CLUNE & ORS v DPP & JUDGE CLIFFORD 1981 ILRM 17 1981/1/120

Z v DPP 1994 2 IR 476 1994 2 ILRM 481

BOWES & MCGRATH v DPP 2003 2 IR 25 2003/6/1129

CONSTITUTION ART 34

CRIMINAL LAW

Evidence

Jurisdiction - Prohibition sought - Trial commenced in District Court - Whether quia timet order sought - Whether extraordinary circumstances - Whether reliability and admissibility of evidence matter for trial judge - Evidence - Duty to preserve evidence - CCTV footage - Relevance of availability of direct evidence - Whether serious risk of unfair trial - Braddish v DPP [2001] 3 IR 127; Ludlow v DPP [2008] IESC 54, [2009] 1 IR 640; English v DPP [2009] IEHC 27 (Unrep, O Neill J, 23/1/2009); Mellet v Reilly [2002] IESC 33 (Unrep, SC, 26/4/2002); People (AG) v McGlynn [1967] IR 232, DPP v Special Criminal Court [1998] 2 ILRM 493; Clune and O Dare and ors v DPP [1981] ILRM 17; Z v DPP [1994] 2 IR 476 and Bowes v DPP [2003] 2 IR 25 considered - s Relief refused (2009/1817 JR - Hedigan J - 25/02/2010) [2010] IEHC 45

Stirling v Collins and DPP

Facts The applicant sought an order of prohibition to prevent his trial from proceeding. The applicant had allegedly been observed by a member of An Garda Siochana damaging a telephone box via CCTV. When the applicant appeared before the District Court it transpired that the CCTV footage was no longer available. The applicant sought to prohibit his trial from proceeding on the grounds that the absence of the footage severely prejudiced his chance of a fair trial.

Held by Hedigan J in refusing the application. A prima facie presumption existed that the District Court Judge would carry out the trial in a fair manner and the High Court should not intervene in this. The observing Garda was entitled to give evidence of what he had observed and could be questioned as to the accuracy of his recall. In the absence of exceptional circumstances the Court would refuse the application sought.

Reporter: R.F.

1

By order of Peart J. dated the 27 th day of July, 2009 the applicant was granted leave to apply for judicial review seeking prohibition on the continuance of criminal proceedings against him in the District Court.

Factual Background
2

The applicant was charged with certain criminal damage and public order offences relating to the early hours of March 3 rd, 2009. On the date in question, Garda Monaghan, working from Pearse Street Garda Station observed via remote surveillance of CCTV, a group of young people in the Aston Quay area of Dublin kicking a telephone box and various window. Garda Monaghan communicatedthis information to other members of the Gardaí who subsequently arrested the applicant in the Temple Bar area.

3

The applicant was charged with the aforementioned offences and duly appeared before the District Court in respect of those offences. However, when a defence application was made for disclosure of the CCTV footage, it transpired that it had been mislaid and was no longer available. The applicant argues that the absence of the CCTV footage severely prejudices his chance of a fair trial as its contents formed the basis of the prosecution's case. The applicant was unsuccessful before the first-named respondent in his contention that he faced a real or serious risk of a fair trial and seeks the relief sought.

Procedural Background
4

The applicant was arrested on the 3 rd of March, 2009. On April 3 rd the applicant's solicitors wrote a letter to Garda Garrett, of Pearse Street Garda Station, requesting a précis of the evidence and CCTV. The applicant's solicitor subsequently discovered that the CCTV footage was unavailable. The matter was heard before the first-named respondent on the 23 rd of July, and the application to dismiss proceedings was refused. The within proceedings were then initiated.

The Applicant's Submissions
5

The applicant's primary complaint is that he would be unable to receive a fair trial as the missing CCTV footage constituted the sole evidence against him. As the applicant has never viewed the footage, it is argued that the quality of the footage obtained or the ability to identify the applicant from the footage are issues which the defence cannot rebut. Moreover, as the prosecution intend to rely on the testimony of Garda Monaghan, who viewed the CCTV footage, the applicant submits that he will be unable to effectively cross-examine the prosecution witness without recourse to the footage.

6

The premise of the applicant's submission is the duty of the investigating Gardaí to preserve, within reason, all evidence relative to the prosecution of the case per DPP v Braddish [2001] 3 IR 127. In the absence of this evidence, the applicant submits that the prosecution is relying on a prosecution witness in lieu of real evidence, which fails to vindicate the right of the applicant to a fair trial. The applicant relied on the case of Ludlow v DPP [2008] IESC in support of this reasoning. In that case, the applicant was facing charges of dangerous driving causing death. The Gardaí had disposed of the car and, instead, the prosecution sought to rely on forensic evidence from an expert who had viewed the car. Hardiman J. remarked that this forensic evidence would be "virtually impossible to rebut" in the absence of the real evidence. The accused would have no way of accurately gauging the thread depth of the tyres from photos in a case where "a fraction of a millimetre may be the difference between guilt and innocence".

7

In addition to the latent unfairness of mounting a defence without real evidence, the applicant specifically contended that, contrary to the views of the respondent, identification was a major issue. The applicant questioned how reliably one could be followed via remote surveillance from Aston Quay to Temple Bar and, with a degree of certainty, be identified in a busy Temple Bar Square. If identification per the CCTV footage was a major issue, and the applicant's defence was one of mistaken identify, this, it was argued, qualified this application as one missing evidence in which the sole and pivotal source of evidence necessary to prosecute was absent.

8

The applicant further submitted that in the absence of the CCTV footage, the ability to effectively cross-examine the prosecution witness is hindered. The case of...

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2 cases
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