'Common sense' urged on video evidence

A High Court judge yesterday urged a "common-sense" approach to requiring gardaí to preserve all evidence which might be remotely relevant in a criminal trial. The call came in light of an increasing number of applications to prevent trials on grounds that gardaí failed to procure or preserve video evidence.

Gardaí must be allowed to perform their duties without having "impossible requirements heaped upon them", Mr Justice Kearns said.

To propose that the courts must prohibit every trial where video evidence has either not been sought, or, having been sought and obtained has thereafter been mislaid, could lead to strange results, he added. The courts should assess each case on its own facts.

Mr Justice Kearns made the comment when dismissing an application by a woman to prevent her trial on a charge of theft of a wallet at Shelbourne Park greyhound racing stadium in Dublin. It was alleged the woman had run off with the wallet, pursued by its owner, and the alleged thief had then thrown the wallet towards a man.

Both the alleged thief and the man were apprehended by gardaí.

The alleged thief's alleged accomplice had later taken judicial review proceedings seeking an order prohibiting his trial on grounds that the security video tape for Shelbourne Park that night was not available.

The proceedings were not contested by the DPP and were later resolved after the DPP said he was not proposing to prosecute the alleged accomplice.

In her proceedings, the woman argued her right to a fair trial was prejudiced by the failure of the gardaí to obtain and/or preserve the video tape.

In his reserved judgment, Mr Justice Kearns said there was a growing body of case law dealing with the requirement to seek out and preserve evidence in the context of a proposed criminal trial.

Where video evidence was not obtained or was lost, it was his view the courts should not yield too quickly to applications to prevent trials if there was an explanation for the absence of the evidence, and where this explanation satisfied the court that the evidence could have no possible bearing on the guilt or innocence of the accused.

Some margin of appreciation must be extended to gardaí to allow them determine what they may reasonably consider to have possible relevance in establishing guilt or innocence, he said.

He was impressed by arguments on behalf of the DPP in this case that there was an onus of proof on applicants in such cases to place some evidence before the court to help it decide whether the absence of some piece of evidence would result in an injustice that could only be prevented through an order of prohibition.

In this case, there was no claim that eye-witnesses or gardaí had misidentified the woman. Nor was there a suggestion she had an alibi for the night in question. Had such a case been made, the video might assume some importance. There was simply an assertion, notwithstanding a multiplicity of eye-witnesses to the alleged incident, that the failure to obtain the video was itself sufficient to prevent a trial.

There was a complete failure on the part of the applicant in this case to show how the absence of video material might prejudice her or create a real risk of an unfair trial, the judge said.