Scully v DPP

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Kearns
Judgment Date16 Mar 2005
Neutral Citation[2003] IEHC 92
Docket Number[S.C. No.

[2003] IEHC 92

THE HIGH COURT

No. 175 J.R./2003
SCULLY v. DPP
JUDICIAL REVIEW
BETWEEN/
MICHAEL SCULLY
APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT

Citations:

FIREARMS & OFFENSIVE WEAPONS ACT 1990 S11

CRIMINAL LAW (JURISDICTION) ACT 1976 S10

DUNNE V DPP 2002 2 ILRM 241

MITCHELL V DPP 2000 2 ILRM 241

CONNOLLY V DPP & JUDGES OF THE METROPOLITAN DISTRICT COURT 2003 4 IR 121

MURPHY V DPP 1989 ILRM 71

Z V DPP 1994 2 IR 476

BRADDISH V DPP 2002 1 ILRM 151

CRIMINAL JUSTICE ACT 1984 S4

MCKEOWN V JUDGES DUBLIN CIRCUIT COURT UNREP SUPREME 9.4.2003

DPP V O'BRIEN UNREP CCA 27.1.2003 (EX TEMPORE)

BOWES & MCGRATH V DPP 2003 2 IR 25

EBRAHIM, R V FELTHAM COURT 2001 1 WLR 1293 2001 1 AER 831

B V DPP 1997 3 IR 140

C (P) V DPP 1999 2 IR 80

1

Judgment of Mr. Justice Kearns delivered the 21st day of November, 2003.

2

The applicant in these proceedings was on 27 th May, 2002 charged that on the 7 th December, 2000 at Beechgrove Service Station, Drogheda, Co. Louth, he did, while committing an offence, to wit, the unlawful seizure of a motor vehicle, produce in a manner likely unlawfully to intimidate another person, an article capable of inflicting serious injury, to wit, a hammer, contrary to s. 11 of the Firearms and Offensive Weapons Act, 1990. He was also charged that on the same date and place he did by force unlawfully seize a vehicle, to wit, a motor car, contrary to s. 10 of the Criminal Law (Jurisdiction) Act, 1976.

3

The applicant now seeks from this Court an Order of Prohibition preventing his trial on the said charges.

4

Leave to seek judicial review by way of prohibition or injunction was granted by O'Donovan J. on the 10 th March, 2003 on grounds which may be summarised as follows:-

5

(1) From the Book of Evidence, it appears that it is alleged that on the 7 th December, 2000 at approximately 11 p.m., Vincent McGovern, the owner of the filling station at Beechgrove, locked up his premises and walked across the forecourt to his motor van. With the keys of the van in his hand, he then received a severe blow to the back of his head. When he looked up he saw a claw hammer in a young man's hand. It is then alleged that a man got in to Mr. McGovern's van through the passenger door and that the van was driven off from the scene. At the time of the alleged offence it would appear that video cameras and a recording system were in use, covering the premises including the forecourt.

6

(2) At all material times the investigating Gardaí in the case had access to video recordings of the locus and period of the said alleged offence.

7

(3) In correspondence with the local superintendent, it had been admitted that video footage from the night in question had been viewed by the Gardaí but it was claimed that the video footage in question did not cover the area of the forecourt where the robbery took place. It is also claimed that the footage was of very poor quality and of no evidential value. It is admitted that the Gardaí did not retain possession of the video footage, nor is it available for the trial in respect of the said prosecution.

8

(4) It is further claimed that there is “a reasonable possibility” that the said video recording could have provided evidence which would have tended to exculpate the applicant and that the failure by the Gardaí to preserve the said video recording until the applicant had an opportunity to inspect same, amounted to a breach of the respondent's common law obligation to preserve evidence potentially relevant to the issue of the guilt or innocence of the applicant.

9

(5) It is further asserted that the applicant's constitutional right to fair procedures has been breached since the Gardaí's acts and/or omissions in the circumstances deprived the applicant of the reasonable possibility of rebutting the evidence proffered against him and it is claimed that the applicant cannot now receive a trial in accordance with law.

BACKGROUND:
10

Mr. Vincent McGovern is the owner and operator of a filling station and shop at Beechgrove, Drogheda. On Thursday night, the 7 thDecember, 2000 he finished his business for the day. He locked up the shop at exactly 11 p.m. His Citroen van was parked in the garage forecourt, parallel with the Ballymakenny Road, facing in the Drogheda direction. In his statement of proposed evidence he records it was a dark, wet and windy night and only the emergency lighting was on in the forecourt area at this time. It is automatically triggered when someone walks into the range of the sensor. These lights were on as he walked across the garage forecourt to the van. He approached the front passenger door of the van and went to put the key in the door. He then received a severe blow to the back of his head and fell to the ground. He looked up and saw a claw hammer in a young man's hand. He was unable to provide a description of his assailant. At this point he had seen only one person. He got up from the ground and saw one man at the passenger door of his van with a claw hammer in his hand. He moved away from the van and this man got into the van through the passenger door. The van then drove off in the direction of Sunday's Gate. The van was recovered a short time later by the Gardaí and on Friday the 8 th December, Mr. McGovern went to Drogheda Garda Station where he checked his van and discovered that £430 worth of Eircell Go-Cards were missing. They had been removed from a briefcase which had been in the front of the van.

11

Following inquiries, Garda Seamus Nolan arrested the applicant in relation to the robbery on the 7 th January, 2001 and brought him to Drogheda Garda Station. In the course of his detention there, the applicant allegedly made a number of statements under caution, at least one of which was made in the presence of his solicitor. In the last of these alleged statements made on the 7th January, 2001, the applicant made a full statement of admission in relation to the robbery.

12

This alleged statement of admission is effectively the evidence, or the principal evidence, against the applicant in this case. While the statement of the member in charge on the 7th January, 2001 indicates that the applicant did not make any complaints during the course of his detention, the applicant's solicitor deposes in his affidavit that he had received instructions from the applicant denying the veracity of "this alleged inculpatory statement and challenging the circumstances under which said statement was taken". This affidavit was sworn on the 7 th March, 2003. It does not state when the deponent received such instructions, nor does it appear from any papers before this Court that the applicant had any complaint to make whatsoever about the propriety of the statement prior to this occasion.

13

Thereafter, the applicant was charged on the 27 th May, 2002. A book of evidence was served on the applicant in October, 2002. On the 1 st November, 2002 the applicant was returned for trial at Drogheda District Court to Dundalk Circuit Court on the 7 thJanuary, 2003. On that latter date, the applicant's case was adjourned by His Honour Judge Groarke until Tuesday the 11 th March, 2003. This judicial review application was therefore moved only one day prior to the date of the proposed trial.

14

On the 17 th December, 2002, the applicant's solicitor had written to the respondent requesting information as to the existence of a copy of a video recording from the said location, for the period of the said alleged offence. On the 6 th January, 2003 Superintendent Doggett responded to the applicant's solicitors by letter, stating as follows:-

"I am to inform you that the CCTV footage on 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."

15

In his affidavit sworn on behalf of the applicant, Mr. Paul Moore, Solicitor, deposes at par. 9:-

"I say that in circumstances where there were a number of video cameras covering the filling station premises, there is a reasonable possibility that the said video recordings could have provided evidence which would have tended to exculpate the applicant."

16

He then exhibited a number of photographs of the locus which indicated a number of video cameras shown at four different locations outside the shop premises and at the corners of the canopy covering the petrol pumps in the garage forecourt. Mr. Moore goes on to state his belief that it is accepted practice and conduct that Gardaí in the investigation of offences in and around premises such as filling stations would examine and obtain video recordings therefrom and, in all the circumstances, the failure by the Gardaí to preserve the video recordings in this case until the applicant had an opportunity to inspect same, amounted, he says, to a breach of the respondent's common law obligation to preserve evidence potentially relevant to the issue of the guilt or innocence of the applicant.

17

While I am sure that the error was completely unintentional, Mr. Moore's affidavit was seriously inaccurate because the camera system seen in the photograph was not that in place on the date of the alleged offence, namely the 7 th December, 2000, but was one which had been installed subsequent to and because of the events on that date.

18

In an additional statement, Mr. McGovern makes clear that the only lighting as he walked to his van on the night in question was a 300 watt tungsten halogen lamp which was connected to a motion sensor. This would have been activated as he came out of the shop door and would only have remained lighting for 20 to 30 seconds once he had moved from the immediate vicinity of the shop door area. It would have extinguished prior to his putting the key in the passenger door. He...

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