Scully -v- DPP, [2005] IESC 11 (2005)

Docket Number:424/03
Party Name:Scully, DPP
Judge:Hardiman J.


Murray C.J. 424/03

McGuinness. J.

Hardiman J.







JUDGMENT of Mr. Justice Hardiman delivered the 16th day of March, 2005.

On the 7th December, 2000, a vehicle was unlawfully seized in the forecourt of a filling station in Drogheda, Co. Louth. It belonged to the owner of the filling station who was struck with a hammer in the course of the seizure. On the 27th May, 2002, the applicant, who is the appellant in these proceedings, was charged with the unlawful seizure of the motor vehicle and with producing in the course of the seizure an article capable of inflicting serious injury. A Book of Evidence was served in October, 2002. Apart from establishing the above facts the Book of Evidence shows that the prosecution case was that the applicant had been arrested in January, 2001, in relation to the unlawful seizure. He allegedly made a number of exculpatory statements before making an inculpatory one. Despite this, no charges were brought for 16 months. There was no other evidence against the applicant. On the 1st November, 2002, the applicant was returned for trial to Dundalk Circuit Court on the 7th January, 2003. On that date the case was adjourned until the 11th March, 2003. On the 10th March, 2003, the applicant obtained leave to seek judicial review restraining the continuance of the prosecution against him.

Grounds for seeking judicial review.

On the 17th December, 2002, about six weeks after the applicant's return for trial, his solicitor wrote to the Superintendent of the gardaí in Drogheda saying:"We understand that there is a Video recording of the events of the 7th December, 2000, at Beech Grove Service Station and should be obliged if you could please furnish us with a copy thereof in advance of the return date".

On the 6th January, 2003, the Superintendent replied:"With reference to above and your correspondence of the 17th ult. I am to inform you that the CCTV footage from the night in question was viewed by the gardaí. It did not cover the area of the forecourt where the robbery took place. It was of very poor quality and of no evidential value. The gardaí did not retain possession".

On that basis, the applicant sought leave to apply for judicial review, alleging that there was a reasonable possibility that the video which the gardaí had viewed could have provided evidence which would have tended to exculpate him and that the failure by the gardaí to preserve the video recording amounted to a breach of the State's common law obligation to preserve evidence potentially relevant to the issue of guilt or innocence. He also claimed that his rights to fair procedures had been breached since the acts or omissions of the gardaí had deprived him of the reasonable possibility of rebutting the evidence tendered against him.

Additional facts.

After leave to seek judicial review was granted, the gardaí served two additional statements on the applicant. The first was the statement of a detective guard who said that he had taken an additional statement from the owner of the filling station substantially to the effect that the video surveillance of the filling station had been greatly improved by him in October, 2001. The relevance of this information was that in the affidavit verifying the facts stated in the applicant's statement of grounds there were exhibited certain photographs of the forecourt of the filling station which showed the position of video cameras. From these photographs it would certainly appear that the whole of the forecourt was covered by video surveillance. There was also an additional statement of Mr. Vincent McGovern, the owner of the filling station. This was to the effect that in late 2000, once one closed his shop door, the only lighting in the area of the forecourt was a 300 watt Halogen lamp which was activated by a sensor as one came out of the shop door. He said that this light would be on for 20 to 30 seconds after activation. It would have been extinguished by the time he got to his van. In late 2000, he said, there were only three cameras covering the forecourt and one the inside of the shop. They did not cover the area where the van was parked and in any event were totally ineffective in darkness. In October, 2001, he very significantly upgraded his surveillance system and the lighting associated with it, but even the new system would not have covered the area where his van was parked. He also said that on the night of the robbery he and the gardaí had watched the surveillance footage and could see nothing of the episode. He said he could not even see himself leaving the shop on this film.

It therefore appears that the grounds on which the application for judicial review was initially moved were to some extent based on the misapprehension that the video surveillance system in place in early 2003 had been in place at the time of the crime in December, 2000, and that this system covered the area where the robbery took place.

Structure of Judgment.

The learned trial judge (Kearns J.) refused the applicant relief in a judgment delivered on the 21st November, 2003. He dealt first with the question of the applicant's delay in seeking relief and concluded that "the delay has been of such a magnitude as to disentitle the applicant [to] relief on that ground alone". For the reasons set out below I agree with this conclusion: I consider that the lapse of time between the charging of the applicant and his application for relief on the eve of his trial was, in all the circumstances of this case, excessive. Because my reasons for this conclusion are not identical to those of the learned trial judge I propose to set them out in some detail. And because it is important, for the integrity of our system of criminal justice and for the avoidance of miscarriages of justice, to ensure that all reasonably available and potentially probative evidence is available to both sides of a criminal case, I propose to consider the learned trial judge's obiter findings on other aspects of the case. I substantially agree with his comment that "Some sort of common sense parameters of reasonable practicality must govern any determination of the scope of the duty of the gardaí when seeking out or preserving evidence": this has been repeatedly emphasised in the recent decisions of this Court from Braddish v. DPP [2002] 1 ILRM 151 onwards.

Delay. The learned trial judge, in his findings on this aspect said:"In the events which transpired, and in the absence of any request until the 17th December, 2002, an interval of nineteen months had elapsed from the time that the applicant was charged with the offence. No explanation for that delay exists. As we have seen, the application for judicial review was only made, literally, on the eve of the trial.

On the facts of this case, I have no hesitation in concluding that the delay has been of such a magnitude as to disentitle the applicant [to] relief on that ground alone."

In fact, the applicant was not charged with the relevant offences until the 27th May, 2002. The Book of Evidence, which disclosed the case against him, was served on an unspecified date prior to the 1st November, 2002, and probably at some stage in the preceding month. Accordingly, the application for leave to seek judicial review was made about nine months after the applicant was charged and a little over four months after the Book of Evidence was served. The learned trial judge's misapprehension in this regard is wholly understandable because there is no explanation at all on the papers as to why the applicant was not charged with these offences for some eighteen months after they occurred. This is especially mysterious because, on the State's case, they were in possession of an incriminating statement for all but one month of that time.

Despite this significant chronological difference, however, I agree with the learned trial judge's conclusion. This is because one is concerned not simply with the temporal extent of the delay but with the time lapse in all the circumstances of the case. It is essential that the Court should view any lapse of time in its context in a particular case if, on the one hand, the requirements of fair procedure are to be met and, on the other, the administration of justice is not to be compromised by artificial, tactically grounded complaints.

Cases reviewed.

The learned trial judge has surveyed in his judgment a...

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