Spellman v DPP

CourtHigh Court
JudgeMs. Justice Irvine
Judgment Date06 October 2010
Neutral Citation[2010] IEHC 506
Date06 October 2010

[2010] IEHC 506


[No. 225 J.R./2010]
Spellman v DPP





BRADDISH v DPP 2001 3 IR 127

SAVAGE v DPP 2009 1 IR 185

D (C) v DPP UNREP 2010 ILRM 49

IRWIN v DPP UNREP KEARNS 23.4.2010 2010/23/5769 2010 IEHC 232

LUDLOW v DPP 2009 1 IR 185


LEAHY v DPP UNREP CHARLETON 5.2.2010 2010/28/7032 2010 IEHC 22

KEOGH v DPP UNREP BIRMINGHAM 17.11.2009 2009/31/7649 2009 IEHC 502

DUNNE v DPP 2002 2 IR 305

IRWIN v DPP UNREP KEARNS 23.4.2010 2010/23/5769 2010 IEHC 232



Unavailability - CCTV - Evidence by people who had viewed CCTV - Evidence circumstantial - Whether CCTV central to prosecution case - Reason for loss of evidence not determining factor - Onus on applicant - Whether exceptional circumstances present - Whether scenario posited by applicant borne out by evidence - Whether real and serious risk of unfair trial - Burglary - Applicant under surveillance - Savage v DPP [2008] IESC 39 [2009] 1 IR 185, CD v DPP [2009] IESC 70 (Unrep, SC, 23/10/2009) and Dunne v DPP [2002] 2 IR 305 applied; Keogh v DPP [2009] IEHC 502 (Unrep, Birmingham J, 17/11/2009) followed; Irwin v DPP [2010] IEHC 232 (Unrep, Kearns P, 23/4/2010), Ludlow v DPP [2008] IESC 54 [2009] 1 IR 640, Fagan v Judges of the Circuit Court [2006] IEHC 151 (Unrep, Dunne J, 28/4/2006) and Leahy v DPP [2010] IEHC 22 (Unrep, Charleton J, 5/2/2010) considered; Braddish v DPP [2001] 3 IR 127 distinguished - Application refused (2010/225JR - Irvine J - 6/10/210) [2010] IEHC 506

Spellman v DPP


JUDGMENT of Ms. Justice Irvine delivered on the 6th day of October, 2010


1. The applicant in the present proceedings seeks, inter alia, the following relief:


(a) an order of prohibition or injunction prohibiting the respondent from dealing with the proceedings brought against the applicant on foot of four charge sheets all relating to offences allegedly committed by the applicant at the premises of D.I.D. Electrical, Briarhill Business Park, Galway on 16 th December, 2009.


2. Leave to apply for the aforementioned relief was granted by McMahon. J. on 1 st March, 2010, on the grounds set out at para. E of the statement required to ground the application for judicial review dated 27 th February, 2010.


3. At the heart of the within proceedings is the fact that certain CCTV footage, which captured movements outside and inside the premises of D.I.D. Electrical (hereinafter "D.I.D.") on the morning of the alleged offences, is no longer available. Consequently, the applicant maintains that there is now a real and serious risk of him being unable to have a fair trial should the Court fail to make an order of prohibition.


4. There is no dispute between the parties as to how the CCTV footage of approximately one and a half hours duration has become unavailable. It was viewed by Damien Devlin, the store manager of D.I.D., along with Garda Gerard O'Callaghan on the morning of 16 th December, 2009, and also momentarily by Garda Liam Walsh, all of whom have made statements. Detective Garda Darragh Browne attended at the premises of D.I.D. on 21 st December, 2009, when his request for the relevant CCTV footage was logged by the staff. He returned to collect the same on 27 th December, 2009, but was asked, because the store was exceptionaly busy, to return on 29 th December, 2009. On that date, he was told that the security firm retained all CCTV footage for 30 days and that it would be available for collection on 4 th January, 2010. Unfortunately, when he returned on 4 th January, 2010, he was advised that the relevant video cameras had not been set up correctly and that consequently the relevant footage had been overwritten after a period of only fifteen days.


5. Of central importance to the applicant's claim is the fact that in the early hours of the morning on the 16 th December, 2009, the gardaí had the applicant under surveillance. As a result of that surveillance, the applicant and his girlfriend Sarah Long, who has also been charged with offences arising out of the same events, were observed as being at or near her apartment at 6 Santa Maria, Ballybane, Galway at 3.00am and also at 4.00am.


6. The applicant's solicitor, Valerie Corcoran, in the affidavit she has sworn on the applicant's behalf, states that it is the prosecution's case that the applicant was one of three youths who were involved in this burglary. She refers to the fact that one Patrick Flaherty and one Jonathan King have both pleaded guilty to similar charges to those brought against the applicant. Having read the book of evidence, including the statement of Damien Devlin, Ms. Corcoran states that, whilst the video footage which has been overwritten was of poor quality, it was sufficiently clear to allow Mr. Devlin state that the three individuals involved in the robbery were male and that it was the same three individuals that he saw together on the CCTV footage on a number of occasions. He was also in a position to note a man mounting and later falling from a ladder, whom he stated was wearing white Nike runners.


7. Ms. Corcoran, in stressing the importance of the CCTV footage, also referred to the statements of Garda O'Callaghan and Garda Walsh both of whom described the three men as "youths". She also maintained that Patrick Flaherty and Jonathan King had been identified based upon what was seen on the CCTV footage and that they had both been excluded as the man on the ladder, once again in reliance on what was seen on the CCTV footage. In this regard, she relies on the fact that the applicant was questioned about being on the ladder and whether he cut himself falling from it.


8. As to the evidence, Ms. Corcoran finally refers to the fact that an analysis carried out on blood found at the scene did not match that of Jonathan King, Patrick Flaherty or the applicant and she states that this is material to her client's position that he was not involved in the robbery.


9. On the applicant's behalf it was submitted that if the CCTV footage was now available, having regard to the times that the applicant was observed at his girlfriend's flat, it could prove that he was not one of the three burglars. This, it was submitted, could occur in two ways, namely:-


(a) the CCTV footage might provide direct visual evidence demonstrating that the identity of the third burglar was somebody other than the applicant; or


(b) that all three burglars were on the D.I.D. premises at one or both of the times when the applicant was observed by gardaí at his girlfriend's apartment, thus excluding him as the third man involved in the burglary.

Legal Submissions on behalf of the Applicant.

10. Helpful written legal submissions were filed on behalf of the applicant and these set out the principles which emerge from the long line of authority which now exists in relation to missing evidence. Amongst many others, the Court was referred in particular to the decision in Braddish v. Director of Public Prosecutions [2001] 3 I.R. 127 and the decisions of Fennelly J. in Savage v. Director of Public Prosecutions [2009] 1 I.R. 185 and C.D. v. Director of Public Prosecutions (Unreported, Supreme Court, 23 rd October, 2009). A helpful analysis of how these principles apply to the facts of the case was set out in these submissions and it is not necessary to rehearse this in the course of this judgment as it was accepted by both parties that the most important issue was whether the Applicant could demonstrate a real risk of an unfair trial by reason of the lost CCTV footage. This, counsel submitted, had been established on the evidence of Ms. Corcoran.


11. It was submitted that the case law established that where missing evidence was central to the case of the prosecution or the defence an order of prohibition should be made. The applicant contended that the missing CCTV footage was central to the prosecution's case and that this was borne out by the fact that there are a number of statements in the book of evidence made by those who viewed the CCTV footage before it was overwritten. It was submitted that if the CCTV footage was now available, having regard to the facts alluded to in Ms. Corcoran's affidavits, clearly it would have the potential to exculpate the applicant from any involvement in the burglary and that he was accordingly impaired in his ability to defend the charges brought against him. Thus applying the well established principles regarding missing evidence to this case he was entitled to an order of prohibition.


12. The applicant relied upon the fact that the prosecution's case against him was entirely circumstantial and that they had no evidence placing him within the business park at the relevant times. He further maintained that he had at all times protested his innocence and that he had accounted for his movements. Thus the loss of the CCTV footage, in the context of the facts of this case, puts him at a real risk of an unfair trial.


13. Finally, the applicant maintained that the rules of evidence which govern criminal trials cannot afford him adequate protection should the case against him be permitted to proceed. Counsel submitted that the risk of an unfair trial cannot be remedied by any ruling that might be made by the trial judge in the course of the trial nor by any direction to the jury as to the significance to be attached to missing CCTV footage given that what it might have shown is unknown. Accordingly, the only remedy for the applicant is an order of prohibition.

The Respondent's Case

14. The respondent disputed the applicant's assertion that...

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