O'Hara v. D.P.P. & Anor [2004] IEHC 386 (10 December 2004)

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    [2004] IEHC 386

    THE HIGH COURT
    JUDICIAL REVIEW

    [2003 Rec. No. 339 JR]

    BETWEEN

    RAYMOND O'HARA

    APPLICANT

    AND
    THE DIRECTOR OF PUBLIC PROSECUTIONS AND
    DISTRICT COURT JUDGE FURLONG

    RESPONDENTS

    JUDGMENT of the Honourable Mr. Justice O'Leary delivered on the 10th day of December, 2004.

    The applicant, by way of Judicial Review, applied on the 19th May 2003 for an order in the following terms:

    (i) An Order of Prohibition restraining the first named respondent from taking any further steps in the District Court proceedings the subject matter of the within judicial review proceedings.
    (ii) An Injunction restraining the first named respondent from taking any further steps in the District Court proceedings the subject matter of the within judicial review proceedings.
    (iii) A Declaration that the first named respondent acted otherwise than in accordance with the principles of natural and constitutional justice and otherwise than in accordance with law and otherwise than in accordance with fair procedures, with the result that the applicant is precluded from receiving a trial in accordance with Article 38.1 of the Constitution of Ireland and Article 6 of the European Convention of Human Rights.
    (iv) A Declaration that the second named respondent acted without jurisdiction or alternatively exceeded his jurisdiction and/or acted otherwise in than accordance with the principles of natural and constitutional justice and otherwise than in accordance with law and otherwise than in accordance with fair procedures with the result that the applicant is precluded from receiving a trial in accordance with Article 38.1 of the Constitution of Ireland and Article 6 of the European Convention of Human Rights.
    (v) Such further or other Order as this Honourable Court may deem fit.
    (vi) Liberty to apply.
    (vii) The costs of the within proceedings.

    The application was based on the following grounds:

    (i) Order of Prohibition, Injunction, and Declaration sought at (d) (i) (ii) and (iii)
    That in conducting the prosecution, the first named respondent acted otherwise than in accordance with the principles of natural and constitutional justice and otherwise than in accordance with law and otherwise than in accordance with fair procedures in failing to seek out or preserve video evidence of actual or strongly probable bearing on the guilt or innocence of the applicant without delay or at all. As a result the applicant is precluded from receiving a trial in accordance with Article 38.1 of the Constitution of Ireland and Article 6 of the European Convention of Human Rights.
    (ii) Declaration sought at (d) (iv)
    The decision of the second named respondent of 15 April 2003 to list the above mentioned case for hearing on 16 January 2004 was made without jurisdiction or, alternatively in excess of his jurisdiction and/or otherwise than in accordance with the principles of natural and constitutional justice and otherwise than in accordance with law and otherwise than in accordance with fair procedures by reason of the submissions made by the applicant's solicitor regarding the failure to seek out and/or preserve relevant video evidence with actual or strongly probable bearing on the issue of the guilt or innocence of the applicant. As a result the applicant is precluded from receiving a trial in accordance with Article 38.1 of the Constitution of Ireland and Article 6 of the European Convention of Human Rights.

    Mr Justice O'Donovan granted leave to apply for Judicial Review in respect of the reliefs set forth at paragraphs (d) (i) and (iii) on the grounds set forth at paragraph (e) of the Statement and made certain ancillary orders dealing with the hearing of the application.

    The respondent filed a statement of opposition dated 20th August 2003 in the following terms:

    1. As of March 17th 2002, the date of the alleged offences with which the applicant is charged, the video recording system in operation at the Killiney Court Hotel, Seafield Road, Killiney, Co. Dublin did not cover the locations where it is alleged that the applicant committed the said offences.
    2. Accordingly, there is not, and never was, any video evidence of the activities constituting the offences with which the applicant is charged.
    3. In the premises, there has been no failure or delay on the part of the respondent, his servants or agents, to collect and preserve evidence of actual or strongly probable bearing upon the applicant's guilt or innocence.
    4. It is denied that the first named respondent has acted otherwise than in accordance with the principles of natural and constitutional justice, law and/or fair procedures.
    5. The applicant has not established that he cannot have a fair trial in due course of law as required by Article 38.1 of the Constitution of Ireland, either as alleged in the Statement of Grounds or at all.
    6. The determination made by the second named respondent on April 15th 2003 was made according to law, and within jurisdiction.

    The following evidence was before the Court in relation to the action.

    1. Affidavit of Anne Fitzgibbon and exhibits thereto dated 19th May 2003 on behalf of the applicant.
    2. Affidavit of Raymond O'Hara (the applicant) and exhibits thereto dated 19th May 2003.
    3. Affidavit of David Byrne and exhibits thereto dated 12th August 2003, on behalf of the first named respondent.
    4. Affidavit of John O'Dowd and exhibits thereto dated 12th August 2003 on behalf of the first named respondent.
    5. Replying affidavit of Anne Fitzgibbon and exhibits thereto dated 4th November 2003 on behalf of the applicant.

    Background Facts and Basic Conclusions:

    On the 17th March, 2002, a cigarette vending machine was allegedly removed from its location within the Killiney Court Hotel and was subsequently discovered in a toilet reserved for handicapped persons near its previous location. Also, allegedly, in the toilet was the applicant with a black plastic sack and a screwdriver. The applicant was arrested and detained for the purposes of the proper investigation of the crimes allegedly arising therefrom. These alleged crimes were later specified as Larceny under section 2 of the Larceny Act 1916 and the possession of a screwdriver in the course of a larceny contrary to the same section of the same Act. The applicant was charged with these offences on foot of summonses issued on 13th November 2002.

    The applicant had been arrested on the 17th March and was detained as outlined above. During the course of his detention the Gardaí questioned him, but the applicant made no response to any questions except to confirm that he had come to Killiney that morning and that he could not identify the time he arrived. Among the questions to which the applicant did not respond were questions relating to time of his arrival in the hotel, the purpose of his visit, whether he was aware that there was a video recording system in operation in the hotel and other questions relating to his alleged involvement in the alleged offences.

    The solicitor acting for the applicant was instructed one week before the case first came to court in February 2003. As soon as the memo of the interview was made available to her, she requested sight of the video evidence which arose on the day in question and which, by inference, was mentioned in the interview by use of the question.

    "Do you realise that there is a video recording system in operation in the hotel?"

    After some confusion, it transpired that the area within the hotel in which the cigarettes were located and the area within the toilet (or its environs) were not covered by the video system on the date in question. This information is contained in the uncontested affidavits of Garda David Byrne and Hotel Managing Director John O'Dowd. On the basis that any coverage of the area outside the scene of the alleged crime would not have been of use in the investigation of the crime, the video of the day was not sought or preserved by the Gardaí.

    The single issue in this case is whether the applicant's right to a fair trial has been compromised by the failure of the Gardaí to preserve the video evidence of the hotel premises notwithstanding the assertion that in the view of the Gardaí nothing of relevance would arise from the perusal of this video.

    The application for Judicial Review was taken within time and no time issue arises in this case.

    The Court was referred to the following judgements:

    Braddish v. DPP [2002] 1 ILRM 151; [2001] JR 127.
    Dunne v. DPP [2002] 2 ILRM 241.
    Bowes and McGrath v. DPP [2003] 2 I. R. 25.
    Scully v. DPP (Unreported, High Court, Kearns J., 21st November, 2003).
    Karen O'Callaghan v. The Judges of the Metropolitan District Court and DPP (Unreported, High Court, Kearns J., 20th May, 2004).

    The leading case is, without a doubt, Braddish v. DPP. This case dealt with the non-availability of a video from which a still photograph had been taken which purported to identify the accused. The trial judge excluded the still photograph but the issue of the missing video was relied on by the defence as creating an insurmountable difficulty to giving the accused a fair trial. The Supreme Court held that such a video had the potential to assist the defence. The defence was disadvantaged by its absence and thus the further prosecution of the offence had to be restrained. This was not of itself very different from the law as understood up to that date but the manner in which the right was expressed has formed the basis of a number of applications in the years that followed. The relevant passage reads at 157 (Hardiman J.):

    "It is the duty of the Gardai, arising from their unique investigative role, to seek out and preserve all the evidence having a bearing or a potential bearing on guilt or innocence. 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."

    In the later case of Dunne v. DPP, Hardiman J reiterated the above as a correct statement of the law but also drew attention to a lesser known portion of the Braddish judgement which states at page 159:

    "Certainly it cannot be interpreted as requiring the Gardai to engage in a disproportionate commitment of manpower or resources in an exhaustive search for every conceivable kind of evidence."

    This exception, with regard to disproportionate commitment, can have no application to the decision in this case, as the resources required to preserve the video or the adjoining area would have been minute.

    In the Dunne case, McGuinness J. reached the same conclusion as Hardiman J. on the facts of the case before the court, but looked forward to the issue of the duty of the police to seek out evidence and its limits arising in future cases.

    The minority judgement of Fennelly J. appears to question the absolute nature of the duty resting on the Gardai and the consequences of any failure on their part.

    The issue was revisited in McKeown v. Judges of the Dublin Circuit Court and DPP (Unreported Supreme Court, 9th April 2003) and quoted by Kearns J. in Michael Scully v. DPP. The following extracts give the relevant parts of the judgment of universal application:

    "There obviously are limits to the lengths to which the Gardai must go in either seeking out or preserving evidence. To that extent each case must be judged on its own facts…"

    Later having discussed the practicalities of preserving the evidence in the particular case the learned judge makes the following general observation:

    "These practicalities must be judged on the facts of each case."
    Braddish v. DPP must be considered in the light of this later judgment. Taken together, they lay down that essentially each case must be decided on its own facts, using the principles set out in DPP v. Braddish. In this regard, it must be borne in mind that the duty on the Gardaí is 'to seek out and preserve all evidence having a bearing or potential bearing on guilt or innocence'. This, of necessity, requires an assessment by the Gardai as to the relevance of the missing or unsought evidence in the light of the alleged crime and any facts already established or in respect of which there is credible evidence. This assessment must, of course, be reassessed in the light of any new information, which may come to hand. New information may impose on the Gardaí for the first time an obligation to seek out and/or preserve evidence. The corollary is that the absence of additional information may excuse the Gardaí from preserving or seeking out items that might have been transformed with that additional information from irrelevant facts to potential evidence.

    In this case, the following appears to be the information acquired by the Gardaí during the day of the alleged crime. Of course the reliability and accuracy of this evidence would have to be tested at the trial but, for the purposes of this application, the following represents the state of knowledge of the Gardaí at the time they made the decision not to access and/or preserve the hotel video.

    1. The applicant was in the general area of the crime before the cigarette machine was missed.
    2. The managing Director had the applicant under observation but left for a minute.
    3. When he returned the applicant and the cigarette machine were missing.
    4. After a search conducted immediately, the applicant, machine, screwdriver and plastic bag were discovered in the disabled toilet.
    5. There was a video system but it did not cover any relevant area of the hotel.

    The evidence of the movements of the applicant, his presence in the hotel for some time before any alleged theft, rendered academic the use of the video in relation to the exact time of his coming to the hotel. The Gardaí had no evidence as to the involvement of any other person, nor was there, then or now, any evidence on which the Gardai could be expected to act in respect of any other person. The Gardaí would have been involved in a fanciful extension of their task if they sought (in the absence of any suggestion, hint or evidence of the existence of any third party or of the late arrival of the applicant) to examine video footage, internal or external, to the hotel. However, that position could have changed if they had acquired evidence or even a suggestion or hint of these possibilities. One such source would have been the interview with the accused.

    The Courts abhor any breach of the constitutional right to silence. The applicant had an absolute right to refuse to answer the questions posed to him and no doubt that right will continue to be vindicated at his trial (if any). That does not mean that the Gardaí could ignore any information given at interview or indeed speculate on the basis of a refusal to answer questions. The Court has read the text of the interview.

    After that interview the Gardaí had no additional information tending to make the video relevant, and their duty to seek out other evidence, including video evidence of adjoining locations, had not altered as a result of the information gleaned at that interview (which amounted to very little). If the accused had used the interview to give some information to the Gardaí as to other circumstances tending to show the need to investigate alternative theories then the Gardaí might well, arising therefrom, have had a new duty to seek out new evidence including evidence from the video of the adjoining areas.

    The Court heard submissions of the applicant's legal team on multiple possible uses of the video. These involved the possible involvement of other parties and the timing of the arrival of the applicant in the hotel. These theories are not supported by any evidence before this Court, nor was there at the time of the Garda investigation, any evidence, suggestion or hint to raise them as possibilities. The reliance being placed on these multiple theories, unsupported by any evidence hint or suggestion, is in fact a submission that the obligation imposed on the Gardaí by Braddish are far more far-reaching than previously understood.

    The applicant's submission amounts to a suggestion that theories, which though possible are based on no known fact, information, suggestion or hint, imposes a duty on the Gardaí to seek out and preserve evidence consistent with these possibilities. This duty exists even in cases where substantial evidence exists for a different explanation of the facts.

    In the view of this Court this imposes an unreasonable burden on the Gardaí and goes far beyond what is suggested in Braddish.

    Accordingly, the application is dismissed.

    J Approved: O'Leary.


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