Keogh v DPP

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Birmingham
• Judgment Date: 17 November 2009
• Neutral Citation: [2009] IEHC 502
• Date: 17 November 2009

[2009] IEHC 502

THE HIGH COURT

872 JR/2008

Keogh v DPP

JUDICIAL REVIEW

BETWEEN

EDWARD KEOGH

APPLICANT

AND

D.P.P.

RESPONDENT

FIREARMS ACT 1964 S27A(1)

OFFENCES AGAINST THE STATE ACT 1939 S30

CRIMINAL JUSTICE ACT 2007 S28

CRIMINAL JUSTICE ACT 2007 S29

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

DUNNE v DPP 2002 2 IR 305 2002 2 ILRM 241 2002/7/1645

C (R) v DPP UNREP SUPREME 1.4.2009 2009 IESC 32

MCFARLANE v DPP & SPECIAL CRIMINAL COURT 2007 1 IR 134 2006/35/7440 2006 IESC 11

MATTHEWS v DPP UNREP MACMENAMIN 14.12.2007 2007/39/8139 2007 IEHC 433

CRIMINAL LAW

Evidence

Preservation - âÇÿMissing evidence' case - Non availability of certain evidence -- Principles to be applied - Firearms offence - CCTV footage of scene of incident not sought by gardaí in time - Delay by gardaí in gathering relevant evidence - CCTV footage sought by applicant at early stage -Failure by gardaí to gather evidence - CCTV footage no longer available - Exceptional circumstances - Whether trial should be prohibited - Whether reasonable for gardaí to have sought CCTV footage at early stage - Whether exceptional circumstances existed - Braddish v DPP [2001] 3 IR 127, Dunne v DPP [2002] 2 IR 305, RC v DPP [2009] IESC 32 (Unrep, Supreme Court, 1/4/2009), McFarlane v DPP [200] IESC 11 [2007] 1 IR 134; Matthews v DPP [2007] IEHC 433 (Unrep, MacMenamin J, 14/12/2007) distinguished - Firearms Act 1964 (No 1), s 27A - Trial prohibited (2008/872JR - Birmingham J - 17/11/2009) [2009] IEHC 502

Keogh v DPP

Facts: The applicant had been charged on a single charge of possession of a double barrel shotgun, contrary to s. 27A (1) Firearms Act, 1964 as amended. Gardai had been called late at night to a laneway at the rear of a public house on account of suspicious activities as to individuals on motorcycles. The applicant crashed into a Garda and a large black bag was opposite the applicant at the time. The applicant was asked to account for the presence of a shotgun, cartridges and a stolen motorbike and had declined to comment. The solicitors for the applicant had written inter alia to the Gardai seeking CCTV footage of the incident, which they alleged would be exculpatory of the applicant. The applicant alleged in the present proceedings that the failure to obtain the CCTV footage warranted the prohibition of the trial, as the failure resulted in a real and serious risk of an unfair trial.

Held by Birmingham J. that it was reasonable to expect that the Gardai would have sought out the CCTV footage from the public house and would have done so at an early stage. There was a reasonable probability that the suspicious activity which gave rise to the complaint would have been captured on film. If that evidence was available, the evidence would have been of enormous significance. The delay in seeking out the footage was significant, notwithstanding that the solicitor for the applicant had disclosed a keen interest in the CCTV footage within eight days of the arrest. Vital evidence which might have been available was not obtained and instead the testimony of a single Garda would be employed, which was not a satisfactory state of affairs. This was a rare case where a trial would be prohibited.

Reporter: E.F.

1 JUDGMENT of Mr. Justice Birminghamdelivered the 17th day of November, 2009

2 1. The applicant is at present charged before the Dublin Circuit Criminal Court on a single charge, that being that he, "on 13 ^th December, 2007 at the laneway at the rear of Black Forge Inn, Drimnagh Road, Dublin 12, had in his possession a "Sarasaqueta" make double barrel shotgun, serial number 140435, and two rounds of 12 gauge shotgun cartridges, in such circumstances as to give rise to a reasonable inference that he had not got it in his possession for a lawful purpose, contrary to s. 27A(1) of the Firearms Act, 1964 as amended".

3 2. The applicant is seeking to prohibit his trial by reason of the non availability of certain evidence. This is one of the many "missing evidence" cases to come before the courts.

4 3. The factual background to the charge and indeed to the present application as it appears from the book of evidence can be summarised as follows. On the day in question two members of the Garda Síochána, Garda David Forsythe and Garda Sinead Hennessy were on duty in the Crumlin Garda station official patrol car. In the course of their tour of duty, at approximately 11.40 a.m., they received a call from thestation that three males on bikes were acting suspiciously at the rear of Elenora's public house in a laneway off Balfe Road, Drimnagh.

5 4. The Gardaí in question responded to the call and as they entered the laneway in question, saw two motorcycles in an alcove at the rear of a public house known as the Black Forge Inn public house. The motorcyclists were mounted and had their engines running. I pause, to refer to the fact that when argument concluded last Tuesday, I indicated that I would consider visiting the laneway with a view to clarifying the locations of the two public houses appearing to have a relevance to this case, i.e. Elenora's and the Black Forge Inn and I duly did visit the area last Sunday. I found that a useful exercise. In relation to the motorcycles that were visible to the gardaí one of the motorcycles was white and the driver of this motorcycle was wearing dark clothing and a black helmet. In relation to this motorcyclist, Garda Hennessy, the driver of the patrol car, according to her statement of evidence as it appears in the book of evidence, saw something dark under his right arm, did not fully notice what this was but was sure it was a black bag or sack. So far as the second male is concerned he is described by Garda Forsythe, the observer in the Garda patrol car as wearing a light coloured puffy jacket and jeans, while Garda Hennessy, describes him as wearing dark clothing.

6 5. It appears both motorcycles revved their engines and drove towards the Gardaí. Garda Forsythe got out of the patrol car and attempted to stop the driver of the black motorcycle but failed in his efforts, and this individual made his escape. Garda Forsythe then attempted to stop the driver of the white motorcycle but was likewise unsuccessful. However, the driver of the white motorcycle, on the prosecution case, the applicant now before the court, lost control and crashed into two parked vehicles. At this point, Garda Forsythe saw a large black courier bag on theground. It was "… only feet away from where he [the applicant] had come off the motorbike, this bag had not been on the ground when [they] first drove into the laneway and the patrol car would have to have driven over it to go up the laneway". The applicant was then arrested. Garda Hennessy, according to her statement, ran to assist Garda Forsythe with the arrest of the applicant. She says that she then "… observed a large black bag opposite [where the applicant] had crashed his bike into the cars. This was the bag I had seen under his right arm". The bag when examined was found to contain a sawn-off shotgun.

7 6. The applicant was arrested under s. 30 of The Offences Against The State Act 1939 and was then detained at Crumlin Garda station where he was interrogated on a number of occasions. In relation to the great bulk of questions put to him he made no comment but he did deny having the bag. By way of example in the course of an interview which commenced at 17.28, which was conducted by Gardaí Hennessy and Forsythe, the following exchange took place "Q. I saw you had a black bag under your arm, what was that for? A. I had no black bag. Q. So you're saying the black bag that I also saw under your arm wasn't yours? A. No. Q. So how did it end up beside you, when you were arrested Eddie? A. It wasn't beside me........ " Q. Was there anything in the bag? A. I don't know anything about a bag…………? Q. What was in the bag Eddie? A. I don't know anything about a bag.

8 7. Throughout subsequent interviews the applicant maintained the same position that is to say refusing to answer most questions but denying repeatedly having the bag.

9 8. During the course of the interviews s. 28 and 29 of the Criminal Justice Act, 2007 were invoked. When asked to account for the presence of the shotgun and cartridges and the stolen motorbike, he declined to comment. When asked to accountfor his presence, he replied "I don't know anything about a gun, cartridges or a black bag" and later declined to comment. I should clarify in relation to the motorcycle, that while there has been reference to the fact that the bike was stolen, there is no evidence in relation to this in the book of evidence.

10 9. The relevant history subsequent to the day of the incident is as follows:

11 (i) Just over a week after the incident in the laneway, the applicant's solicitors wrote on 21 ^st December, 2007 to Garda Forsythe. The relevant part of that letter was as follows:-

"Mr. Keogh instructs us that he believes there should be CCTV footage in relation to the incident which would be exculpatory of him. We hereby call on you to seek out and preserve this footage and look forward to hearing from you in this regard".

12 (ii) On a date unknown between December 13 ^th and December 28 ^th, Garda Forsythe attended at a branch of the Bank of Ireland which was close by seeking CCTV footage. Some footage was obtained from the bank but as it turned out is of no relevance.

13 (iii) On a date unknown but which it is suggested may have been in early January, 2008, Garda Hennessy went to the Elenora public house to inquire about the availability of CCTV footage. On this occasion, according to the affidavit she has sworn in the present proceedings, she spoke to Mr. Christy Keane,...