Sirbu v DPP

JudgeMs. Justice Baker
Judgment Date20 March 2015
Neutral Citation[2015] IEHC 204
CourtHigh Court
Date20 March 2015

[2015] IEHC 204


[No. 971 J.R./2013]
Sirbu v DPP





Criminal – S. 3 of Non Fatal Offences Against the Person Act, 1997 – Missing evidence – Evidence of lay witnesses – Prohibition.

Facts: The accused/applicant sought an order of prohibition by way of judicial review restraining further prosecution for indictment under s. 3 of the Non Fatal Offences Against the Person Act, 1997. The applicant contended real risk of unfair trial on the ground of loss of primary evidence.

Ms. Justice Baker held that an order of prohibition by way of judicial review restraining further prosecution of the applicant would be granted. The Court observed that the accused/applicant had no means to challenge the primary evidence which would have been the determining factor at the conclusion of the trial coupled with the fact that there were no eye witnesses of the alleged incident.


1. This is a "missing evidence" case. By order of the 20 th December, 2013 Peart J. granted leave to the applicant to apply for an order of prohibition by way of judicial review restraining further prosecution of the applicant for assault in proceedings currently before Dublin Circuit Criminal Court entitled the DPP v. Valeriu Sirbu, Bill No. 867/2013, on the grounds that it would be unfair if the trial proceeded absent the opportunity to view and consider relevant CCTV footage in respect of the incident giving rise to the charge.


2. The grounds on which the leave was granted were that the DPP had failed to preserve materially relevant CCTV footage which was seen by prosecution witnesses, but was lost soon afterwards, and before the defence had an opportunity to see the footage, have it examined by an expert or have it enhanced, and that this loss means that the applicant is unable to present a full defence and is being deprived of potentially exculpatory evidence.


3. The charge arises from an incident that is alleged to have occurred on the 14 th December, 2012 at a Christmas Party at which the applicant and a work colleague attended. The allegation is that the applicant assaulted his work colleague causing him serious injury and the charge is brought under s. 3 of the Non Fatal Offences Against the Person Act, 1997. There was no witness to the incident and the injured party has no recollection of the incident himself. The applicant does not deny that an altercation took place, but says that the incident arose as a result of his effort to defend himself upon being attacked by his work colleague. The DPP has directed trial on indictment.


4. The factual basis of this application is straightforward. It is common case that a CCTV camera was positioned and operating in the location outside the public house where the incident is alleged to have occurred and the Garda Síochána attended at the licensed premises on the day after the incident and viewed the footage. Two Gardaí viewed the footage, Garda Ciara Geraghty and Garda Eamonn McFadden. A statement of each is contained in the book of evidence. Two other persons also viewed the CCTV footage on the following day, the 17 th December, they being one Tony Rice, the Finance Director of the company which employed both men, and Mr Martin McNulty the owner of the licensed premises in which the incident is stated to have occurred. Each of them has given statements which are contained in the book of evidence.


5. The respondent asserts that Garda Geraghty was told on the 15 th December, 2012, the day after the alleged incident, that there was no risk that the CCTV footage would be immediately deleted or overwritten but when an attempt was made to download the footage with technical expertise on the 26 th December, 2012 it became clear that the footage had been deleted by being overwritten by later recordings. The Gardaí have given evidence that they made attempts between the 20 th December, 2012 and the 24 th December, 2012 to contact the installer of the CCTV with a view to downloading the footage, but could not contact him.


6. One relevant factor is that the day after the incident Gardaí, having interviewed the alleged victim, knew that he had no memory of the event and also knew that the applicant was asserting that the incident that occurred arose as a result of self defence. Accordingly, it was clear from the outset of the investigation that the CCTV footage was central to the investigation, and to both prosecution and defence.

Arguments of Counsel

7. The applicant asserts that the non-availability of the CCTV footage makes it impossible to fully defend the case, and that as there is no witness to the incident he has been deprived of essential and central evidence of a primary nature which has been lost. He asserts that the respondent proposes to try him principally on the basis of third party accounts of what they saw on the video recording and that this would be a breach of fair procedure and that the trial would be unfair if it proceeded on this basis.


8. The respondent asserts that any frailty in the process can be cured by the trial judge and that the jurisprudence of these courts would suggest that the right to a fair trial is a right of trial in accordance with law, and that that right is more properly preserved and engaged by permitting the trial to go ahead. It is asserted that the High Court should intervene only in exceptional cases and should be guided by the first principle of criminal justice, namely that a person is entitled to be tried in accordance with law. It is asserted that the applicant can assert a defence of self defence at trial and there is no risk of an unfair trial, particularly as the judge can rule out the secondary evidence in the form of commentary on the CCTV footage.


9. The applicant says that there is a real risk of an unfair trial that is neither remote nor fanciful and, while the trial judge can rule out secondary evidence, the injustice has already crystallised in that the applicant has lost the benefit of having the footage to support his preparation for trial and to also deal with his very specific defence to the charge. It is pointed out that there is no secondary evidence in the form of photo stills or other witnesses. It is asserted further that in total four witnesses have seen the CCTV footage and that this puts the applicant at a distinct disadvantage.

The Law

10. The law on missing evidence may briefly be stated. The High Court will prohibit a trial if an accused can show there is a real risk of an unavoidably unfair trial. This principle has resulted in complex and finely argued judgments of the High Court and the Supreme Court in the last number of years. The starting point was the judgement of Braddish v. DPP [2001] 3 I.R. 127 and in that case the Supreme Court identified the basis of the rule as the obligation on the Gardaí to seek out and preserve all evidence having a bearing or potential bearing on the guilt or innocence of an accused. This duty arises from the unique investigative role of the Gardaí and as Hardiman J. stated at p. 133:-

"This is so whether the prosecution proposes to rely on the evidence or not, and regardless of whether it assists the case the prosecution is advancing or not."


11. Hardiman J. noted at p. 135 with regard to CCTV footage that it would be difficult to think of "evidence more directly relevant than a purported video tape showing the commission of the crime."


12. The applicant relies on this general statement of law with regard both to the importance of the CCTV footage itself, and the duty of the Gardaí to preserve the CCTV footage which it is asserted was not done in this case.

An exceptional remedy

13. It is well established that the remedy of prohibition in a lost evidence case is exceptional. O'Donnell J. in Byrne v DPP [2010] IESC 54 stated:

"In my view, having considered the decided cases, the position has now been reached where it can be said that other than perhaps the very straight forward type of Braddish case, it would now require something exceptional to persuade a court to prohibit a trial"


14. The Supreme Court has made it clear on a number of occasions and most recently in the case of Kearns v. DPP [2015] IESC 23 that for the High Court to intervene and prevent a trial by way of an order of prohibition is an exceptional remedy and one that is made very rarely. The reason for this is that the constitutional protection of the rights of an accused, and which is founded on the presumption of...

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1 cases
  • Sirbu v DPP
    • Ireland
    • Court of Appeal (Ireland)
    • 9 November 2015
    ...was denied to him. Baker J, on 20th March 2015, granted the applicant an order of prohibition restraining his prosecution on indictment ([2015] IEHC 204). The respondent/appellant, the DPP, appealed from that judgment to the Court of Appeal. Held by Hogan J that, distinguishing Stirling v C......

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