Byrne -v- DPP:Neutral citation (2010) IESC 54
Supreme Court
Judgment was delivered on November 17th, 2010, by Mr Justice Donal O’Donnell, Mr Justice Nial Fennelly and Mr Justice Joseph Finnegan concurring.
Judgment
The Supreme Court dismissed an appeal against a High Court decision that a case should go ahead in the District Court, despite the absence of the CCTV tapes of the incident concerned.
Background
In April 2004, gardaí were called to a Centra store in Talbot Street, Dublin, where two men had been involved in an incident with the manager, including refusing to pay for food bought at the delicatessen counter, verbally abusing the manager and taking items from the shelves and throwing them at him and other members of staff.
The men were still in the store when gardaí arrived and were still abusing the manager, Moeed Hamid. They were arrested and charged under the Criminal Justice (Public Order) Act 1994 and later with charges of assault and criminal damage.
The DPP directed summary disposal in the District Court, and in September another man pleaded guilty to charges arising out of the incident.
There was a CCTV system in the store which was examined by gardaí, who were told by the manager that it did not permit the burning of a CD but that still photographs could be printed off from it. Mr Hamid printed off eight stills for gardaí.
In preparing the case, the solicitor for the appellant sought a copy of the video and was told it was unavailable, as there was no CD-burning facility on the CCTV system. He was also told the footage was unavailable.
The solicitor then took judicial review proceedings to prevent the trial proceeding in the District Court on the grounds that the DPP had failed to ensure that gardaí had sought and preserved all evidence material to the allegation. The case thus raises the question of the extent of the duty of gardaí to seek out and preserve evidence.
Decision
Mr Justice O’Donnell outlined the development of jurisprudence in “lost evidence” cases since the landmark case of Braddish-v-DPP (2001).
Applying the principles which evolved in a number of cases to this particular one, he said this was not a case in which it could be said the alleged missing evidence was central to the case being made by the prosecution.
There was direct evidence from witnesses placing the accused at the scene, and he was arrested there by gardaí, who witnessed him being abusive.
“The applicant has wholly failed to engage with the specifics of the case made,” he said, adding that this was particularly relevant here as it was by no means self- evident how the missing evidence would assist the case he wished to make.
It was also relevant that the trial court retained the discretion to exclude the still photographs if it came to the conclusion that producing them in the absence of the video would be unfair to the accused.
This was also not a case of inaction or incompetence on the part of gardaí. The Garda had sought to copy the CCTV footage, but was told it was not possible. “The duty to seek out and preserve evidence is one which must be . . . interpreted realistically,” he said.
He concluded that Mr Justice Murphy was entirely correct to reject the applicant’s claim.
Mr Justice O’Donnell added he was struck that a summary trial of a relatively minor offence had now been delayed for more than six years by the judicial review and appeal. The two lines of authority that have occupied a substantial part of the judicial review lists of the High and Supreme Courts, delay and missing evidence, can be traced back to a single observation that judicial review was the appropriate remedy where a challenge was brought, he said.
Whether this was so was a matter that deserves further consideration.
An application for dismissal of a summary case would not only be an alternative remedy, but would be both speedier and cheaper than an application to the High Court for judicial review.
The full judgment is on www.courts.ie
Feargal Kavanagh SC and Lorcan Staines BL, instructed by Michael Staines Co, for the appellant; Tom O’Malley BL, instructed by the Chief Prosecution Solicitor, for the DPP