McHugh v DPP

JudgeMr. Justice Fennelly
Judgment Date12 February 2009
Neutral Citation[2009] IESC 15
CourtSupreme Court
Date12 February 2009

[2009] IESC 15


Denham J.

Hardiman J.

Fennelly J.

No. 492 of 2006
McHugh v DPP



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



Failure to preserve - CCTV footage - Robbery - Whether real risk of unfair trial - Identification by witnesses by recorded CCTV footage - Evidence based on inspection of footage - Absence of access to original moving footage - Availability of still photographs - Inability of defence to test identification evidence - Apprehension - Finding of stolen videos in bag - Finding of disguise - Admissions - Braddish v DPP [2001] 3 IR 129 considered - Appeal dismissed (492/2006 - SC - 24/2/2009) [2009] IESC 15

McHugh v DPP

Facts: The respondent obtained on order of the High Court prohibiting his trial on a charge of theft. The original CCTV footage had been obliterated. The sole issue arose as to whether the respondent had established that in the absence of any possibility of access to the original moving CCTV footage that there was a real and serious risk of an unfair trial. It was alleged that if the case was sent to trial that the prosecution would be relying on unusual evidence of identification recorded on CCTV footage which was now unavailable.

Held by the Supreme Court per Fennelly J. (Denham & Hardiman JJ. concurring), that there was a real risk to the fairness of the trial in the circumstances of the case. The defence was simply unable to test the identification evidence of the State witnesses. This did not entail that still photographs taken from a missing video were generally inadmissible. The appeal would be dismissed and the order of the High Court affirmed.

Reporter: E.F.


1.The Respondent obtained an order in the High Court, pursuant to the ex temporejudgment of Quirke J, prohibiting his trial on a charge of stealing a leather jacket from a Lidl supermarket in Ballinasloe. The original CCTV footage has been obliterated. It is a "missing evidence" case.


2.The Director of Public Prosecutions ("the Director") appeals against the judgment of the High Court.


3.The events took place in the Lidl store on 30 th September 2005 shortly after 6:30 pm. There are statements from the Store Manager, Mr Stephen McGrath, and the security guard, Mr James Valance. There were leather jackets on sale at €99.99. Mr Valance was suspicious of the movements and behaviour of two individuals, apparently shopping in the store, one a man in his forties or fifties (suspected to be the respondent) and the other a teenager in his company. They made inquiries about the leather jackets. Mr Valance soon found that a jacket was missing. He checked with various customers and with the check-out staff. None had been sold.


4.Mr Valance got Mr McGrath to check the CCTV. When they inspected the recorded CCTV footage, Mr Valance observed the same two males: the elder one had removed his top, had put on the leather jacket and put back on his top over it. Having seen the recording, he went outside with Mr McGrath. He saw the older man at a black car. Mr McGrath says that he saw one of the leather jackets on the front passenger seat. They approached the man and invited him back in on the pretext of his having been overcharged for something. They did not take possession of the jacket.


5.The elder man was the respondent. He made no admissions at any time. Members of An Garda Síochána were called to the store. In the company of the manager they watched the CCTV recording. An Garda Síochána could not take possession of the hard disk of the CCTV system. Garda John Costello asked the manager to burn a copy of the material seen by An Garda Síochána onto a compact disk. That request was complied with only insofar as five still photographs were put on a computer disk (CD), which was given to the gardaí.


6.The only other evidence of possible relevance is of the gardaí asking the respondent to have the jacket returned and of his phoning such a request to somebody on his mobile phone.


7.The respondent was charged. The book of evidence was served and he was...

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