John Stirling v District Court Judge Collins and Another
| Jurisdiction | Ireland |
| Judge | Mr. Justice John MacMenamin |
| Judgment Date | 26 February 2014 |
| Neutral Citation | [2014] IESC 13 |
| Court | Supreme Court |
| Docket Number | [S.C. No. 70 of 2010] |
| Date | 26 February 2014 |
[2014] IESC 13
THE SUPREME COURT
MacMenamin J.
Laffoy J.
Dunne J.
and
WALL v DPP 2014 2 ILRM 1 2013/52/14565 2013 IESC 56
STIRLING v DISTRICT COURT JUDGE COLLINS & DPP UNREP HEDIGAN 25.2.2010 2010/48/12158 2010 IEHC 45
BRADDISH v DPP & JUDGE HAUGH 2001 3 IR 127 2002 1 ILRM 151 2001/2/351
SCULLY v DPP 2005 1 IR 242 2005 2 ILRM 203 2005/54/11281 2005 IESC 11
CLUNE & ORS v DPP; CLUNE & ORS v DISTRICT JUSTICE CLIFFORD 1981 ILRM 17 1981/1/120
MELLETT v DISTRICT JUSTICE REILLY & DPP UNREP SUPREME 26.4.2002 2002/16/3983
AG, PEOPLE v MCGLYNN 1967 IR 232
DPP v SPECIAL CRIMINAL COURT; WARD v SPECIAL CRIMINAL COURT 1999 1 IR 60
BYRNE v DPP (GARDA ENRIGHT) 2011 1 IR 346 2010/6/1371 2010 IESC 54
TRACEY v DISTRICT JUDGE MALONE & DISTRICT JUDGE REILLY UNREP COOKE 20.1.2009 2009/55/13906 2009 IEHC 14
O'CONNELL, STATE v JUDGE FAWSITT & DPP 1986 IR 362 1986 ILRM 639
Criminal law - Constitutional law - Evidence - Lost evidence - Fair procedures - Fair trial - Prejudice - Whether was real and serious risk of an unfair trial
Facts: The appellant had been charged with criminal damage via CCTV footage. An Garda Siochana had lost or mislaid vital video footage in circumstances which were never fully explained. The Court considered whether there would be a real and unavoidable risk of an unfair trial to which the appellant would be exposed. The Court also considered the nature of prejudice in the proceedings.
Held by the Supreme Court per MacMenamin J. (Laffoy, Dunne JJ. concurring) that the High Court judge erred in declining to grant judicial review. A main building block of the case plainly within the material scope of the investigation had been lost by the prosecution. The appeal would be allowed.
Judgment of Mr. Justice John MacMenamin delivered the 26th day of February, 2014.
Judgment delivered by MacMenamin J [Nem diss]
1. Maintaining the integrity and unity of a trial process is a fundamental requirement in the administration of justice. Once a trial is commenced, that precept of uninterrupted continuity applies, whether in a prosecution before a judge and jury, or in a non-jury court. But no less important is the fundamental legal principle, arising from the Constitution itself, that an accused must not be placed on trial when there is, clearly, a real and unavoidable risk of an unfair trial. The duty of a trial judge in upholding that principle was recently, and extensively, considered in Wall v Director of Public Prosecutions [2013] IESC 56; whether judicial review was most appropriate or effective form of remedy was left over for future consideration. In this judgment, the court must weigh and balance the two principles of continuity, and risk of unfairness, in circumstances now outlined. Hedigan J. in the High Court ( Stirling v District Judge Collins & Anor [2010] IEHC 45), declined to grant relief, essentially, on the basis that the appellant was seeking relief during the currency of a criminal trial in which the appellant was the accused.
2. The appellant was charged with certain criminal damage and public order offences said to have occurred in the early hours of the 3 rd March, 2009. Garda Monaghan, who was then stationed in Pearse Street Garda Station, stated that he observed, via remote surveillance CCTV, a group of young people in the Aston Quay area of Dublin. The group were engaged in kicking a telephone box and various shop windows. Garda Monaghan contacted another member of the force by radio. This was Garda Garrett, who arrested the appellant in Temple Bar Square, after which he was subsequently charged with criminal damage and released on station bail to appear in the District Court on the 20 th March, 2009. The matter was further remanded to the 3 rd April, 2009.
3. A précis of the prosecution evidence intended to be used in the trial in the District Court stated:
"CCTV footage of the offender kicking the phone box on Aston Quay and the windows and shutters in Merchant's Arch has been obtained." (emphasis added)
There was no eyewitness to the alleged incident. The CCTV footage was, therefore, of prime importance in any intended prosecution. Garda Monaghan's testimony, coupled with the recorded material, essentially was the prosecution case. It emerged later that An Garda Síochána had lost or mislaid that vital video-footage in circumstances never fully explained.
4. On the 3 rd April, 2009, the matter came before the District Court. A garda court presenter, representing Garda Garrett, informed the court that the video tape was available in relation to the incident. The appellant's solicitor applied to remand the matter to a mention date for the purposes of obtaining and viewing this material. The then President of the Circuit Court, Judge Malone, who presided on that occasion, refused to list the matter on a further "mention date", but noted that the footage was available, and ordered that it was to be furnished to the defence. The appellant's solicitor wrote, more than once, to the Superintendent at Pearse Street Garda Station and to Garda Garrett himself, seeking disclosure of relevant evidential material, including the video evidence. Judge Malone listed the matter for hearing on the 11 th May, 2009, giving the defence liberty to re-enter the matter should the taped material not be provided.
5. Five weeks later, the appellant's solicitor received a phone call from Garda Garrett indicating that the taped material was no longer available. Obviously, therefore, it could not be furnished to the defence. In light of this, the appellant's solicitor wrote to An Garda Síochána, requesting them to indicate whether it was intended to continue with the prosecution. There was no written reply. The matter came before Judge Hamill in the District Court on the 11 th June, 2009. On that occasion, Garda Garrett outlined the usual procedure for the storage of such evidential material at Pearse Street Garda Station. This procedure involved a process whereby anyone removing from storage such a tape "signed it out". This particular tape had been removed without any signature. Garda Garrett informed the court that while he could not be entirely sure as to why the tape had not been signed out, he assumed it had been removed by another member of the gardaí who was investigating another matter.
6. In Wall, this court emphasised that judicial review by way of prohibition, if it is the appropriate remedy, should be granted only in exceptional cases, where evidence of prejudice is clear. Here, it could not be clearer. In this case, the gardaí held the one vital piece of objective evidence and then lost it. That piece of evidence was obviously within the "reasonable scope" of the investigation. It was the duty of An Garda Síochána to preserve it. On those facts, this case comes within the category of "lost evidence" cases (see Director of Public Prosecutions v Braddish [2001] 3 I.R. 127). The appellant's solicitor acted promptly in requesting this material which was self-evidently relevant to the investigation (see Scully v Director of Public Prosecutions [2005] 1 I.R. 242). (A full list of the relevant authorities on this issue, and principles derived from them, may be found in the judgments in Wall. It is unnecessary to recite them here.)
7. Judge Hamill adjourned the matter for written submissions. The issue as to whether the trial should proceed came on for consideration before the first respondent on the 23 rd July, 2009. Counsel for the appellant argued that the trial should not proceed in light of the lost evidence, and that, in its absence, there was a real and unavoidable risk of an unfair trial. A solicitor for the Director argued to the contrary effect. The first named respondent obviously gave the matter consideration. She adjourned the matter overnight. On the following day, she ruled that while she did not think the circumstances were such as to warrant restraining the trial itself, matters might arise in the course of the trial which would indicate prejudice to the appellant. The trial did not proceed further on that day - there is no indication that this had been the intention - and instead an application for leave to seek prohibition of any further trial was made to the High Court on the 27 th July, 2009. As will be seen, since that point, the criminal proceedings have been stayed. On closer analysis, however, this case has an unusual, but not unique feature. It is that the application mentioned above was made in the District Court in a discrete hearing, where the issue to be determined was whether there was an unavoidable risk of an unfair trial. The case proper was not underway.
8. Before this Court,...
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