THE HIGH COURT
			No. 228 JR of 1999
BETWEEN
DANIEL BRADDISH
			APPLICANT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS AND HIS HONOUR JUDGE KEVIN HAUGH
			RESPONDENTS
JUDGMENT of Mr.  Justice Aindrias Ó Caoimh delivered the 21st  day of December 2000  
	By Order of this Court made the 14th of June 1999 the Applicant was given leave to bring the within proceedings by way of an application for Judicial Review for (1) an Order of Prohibition or an Injunction directed to the first named respondent precluding him from further prosecuting the Applicant in a prosecution entitled The People at the Suit of The Director of Public Prosecutions against Daniel Braddish Bill Number 37/98 which prosecution is presently pending in the South Western Circuit Criminal Court, and (2) an Order of Prohibition or an Injunction directed to the Second Named Respondent herein or whatever Circuit Court Judge may be assigned to hear the said case  prohibiting him from trying the Applicant herein in the same prosecution.  
	The application is grounded upon an affidavit of John Devane Solicitor of Limerick who deposes that the Applicant was arrested at Merchants Quay, Limerick on the 14th of October, 1997 by Detective Garda Eamonn O’Neill pursuant to Section 4 of the Criminal Law Act of 1997 for robbery.  Mr Devane says that he is informed that at the time of arrest the Applicant was not informed of the reasons for his arrest.  He says that the Applicant was conveyed to Henry Street Garda Station in Limerick where the Applicant was detained pursuant to Section 4 of the Criminal Justice Act 1984 in circumstances of an application in that behalf made by Detective Garda O’Neill to Sergeant Michael Gallagher the then member in charge at Henry Street Garda Station.  He states that the basis of the application was that Detective Garda O’Neill had video evidence to connect the Applicant with the crime.  Mr. Devane says that the Applicant was requested to take part in an identification parade to which he agreed.  He further states that authorisation was obtained by Sergeant Dermot Gaffney from Garda Superintendent O’Boyle for an extension of the Applicant’s period of detention for a further six hours from the expiry of his initial six hour period of detention from the time of his arrest at 10.35 a.m. for the purposes of further questioning the prisoner, further enquiries had yet to be carried out and an identification parade had to be carried out and that it was also necessary to have the Applicant photographed, finger printed and palm printed for the proper investigation of the offence for which he was detained.  
	Mr. Devane says that the Applicant’s period of detention was extended for these reasons.  He says that further enquiries had to be carried out and that the holding of an identification parade which was being organised had to carried out as it was also necessary to have the Applicant photographed, finger printed and palm printed for the proper investigation of the offence for which he was being detained.  Mr. Devane says that the proposed identification parade was not held in accordance with the authorisation and on this basis he contends that the authorisation was obtained by way of misrepresentation of the true facts.
	  Mr. Devane says that the Applicant was requested to sign an alleged inculpatory statement which the Applicant did not make orally or otherwise and which did not reflect what the Applicant had actually said, namely, an account of his whereabouts on the night of an alleged assault of his girlfriend.  Mr. Devane further states that he is informed by the Applicant that he was not and is not able to read or write and the statement as prepared by Detective Garda Eamonn O’Neill and Detective Garda Brendan O’Donovan was not read to the Applicant prior to signing same.
	  Mr. Devane refers to the charge against the Applicant which was on Henry Street Charge Sheet Number 339 of 1998 which related to robbery of the sum of £270.00 contrary to section 23 of the Larceny Act 1916 as substituted by Section 5 of the Criminal Law (Jurisdiction) Act of 1976.  Mr. Devane says that he is informed that Aeneas McCarthy Solicitor acting on behalf of the Applicant applied to the District Court on the 2nd of July, 1998 that he be supplied with all copy statements of evidence prepared by the said Detective Garda O’Neill and Detective Garda Brendan O’Donovan, together with a copy of the video and copies of the original stills of the said video.  Mr. Devane says that the State has failed, refused and neglected to provide the Applicant with the photographic stills and the video.
	  Mr. Devane states that the Applicant was arraigned at Limerick Circuit Criminal Court on the charges set out in the indictment 37/98 on the 24th of March, 1999.  The charge in the indictment corresponds with the charge on the charge sheet already referred to herein.  Mr. Devane says that the trial collapsed at the conclusion of the giving of evidence and prior to the jury delivering its verdict when the State failed to provide the photographs of the stills of the video in response to a request for same by the foreman of the jury.  It appears that a retrial was directed to take place on the 23rd of March, 1999 and that this trial was further adjourned to the 20th of April, 1999 when the same came on before the Second Respondent and a jury.  It appears that the jury was discharged in this case when a reference was made to the video.  Mr. Devane concludes by referring to the fact that the Applicant will not be afforded a fair trial because of the matters deposed to by him and will not be properly able to meet the case against him.  
	The ground upon which the Applicant was given leave to seek the relief in these proceedings is stated as follows:-

 “The Applicant cannot have a fair trial in due course and according to law as is required by the provisions of Article 38.1 and 40.4.1 of the Constitution of Ireland because the First Named Respondent herein has failed, refused and/or neglected to furnish to the Applicant’s legal advisors copies of and/or an opportunity to inspect the original of (a) original still photographs (b) video.”

	A Statement of Opposition has been filed on behalf of the First Respondent in which it is denied that the Director failed, refused or neglected to furnish the Applicant’s legal advisor of copies of original still photographs as alleged or at all and further it is denied that the Director failed, refused or neglected to furnish the Applicant's legal advisors with the opportunity to inspect the original still photographs. It is further pleaded that it was not possible to furnish the Applicant’s legal advisors with the original video since same had been returned to its proprietor.
	Affidavits have been filed on behalf of the Director in support of the Statement of Opposition.  Detective Garda Eamonn O’Neill has sworn an affidavit in which he deposes that the Applicant was told in ordinary language of the reasons for his arrest.  He says that the video was available at the time of the Applicant’s arrest and thereafter became unavailable when it was mistakenly returned to the proprietor of the premises that was robbed.  He agrees that the Applicant was never asked to stand in an identification parade.  With regard to the extension of time of the detention of the Applicant while in custody under Section 4 of the Criminal Justice Act of 1984, the Detective Sergeant states that at no stage in whole or in part was the authorisation sought to obtain an identification parade.  He says that the authorisation was not obtained by way of misrepresentation of the true facts.  With regard to the Statement made by the Applicant  he says that the Applicant made a full cautioned statement dictated by him and that this Statement was made by him after he viewed the photographs stills of the robbery.  He states that after completing the Statement it was read over to him and he agreed that it was correct and signed it.  The witness says that the Applicant is able to read and write.  It is further indicated that Mr McCarthy, solicitor for the Applicant, was supplied with copies of statements and photocopies of the original stills taken from the original video of the robbery.  He says that the Applicant during the second trial viewed the original stills with his Counsel.  This was organised by Mr. Michael D. Murray, State Solicitor.  
	The witness has exhibit a copy of the Direction to detain the Applicant for the further period of six hours under the provisions of Section 4 of the Criminal Justice Act of 1984 and this shows that the basis of same was that the authorising officer had reasonable grounds for believing that such further detention was necessary for the proper investigation of the offence, to wit, robbery.  In addition an inculpatory statement signed by the Applicant has been exhibited by the witness. 
	Mr. Michael D. Murray, State Solicitor has sworn an affidavit in which he indicates that with regard to the first trial there was a disagreement by the jury and they failed to reach a verdict.  He says that the court file records that the photographic stills were accepted in to evidence as exhibits.  With regard to the photographic stills he says that he personally made arrangements for the handing over of these to Mr. Devane and his Counsel Mr. Michael Maloney prior to the commencement of the second trial so that they could be viewed in consultation with the accused prior to the trial.  He says that the trial proceeded and in the course of this trial the Court was advised that the original video was not available, it having being returned to its owner and was no longer available.  He says that to the best of his recollection this was done in the absence of the jury and that the Second Respondent ruled out the photographic stills as evidence.  He says that in the course of cross examining Detective Garda O’Neill counsel for the accused had adverted to the existence of the video and cross examined Detective Garda O’Neill as to what happened to the video.  He indicates that the trial Judge was concerned that the jury was prejudiced as to the result of this cross examination and he discharged the jury.  He indicates that prosecuting Counsel made an application to the Judge not to discharge the jury on the basis that he could direct them to ignore all the evidence or any reference to the video and or the photographic stills.  He says, however, that the Circuit Court Judge was not happy to proceed on this basis and discharged the jury because of  the manner in which Counsel for the accused cross examined the Detective Garda in relation to the video material.  
	Mr. Murray has sworn a Supplemental Affidavit in which he exhibits a letter of the 9th of December, 1998 from John Cooke Solicitor to himself and a copy of his reply of the 28th of January, 1999 enclosing statements of additional evidence and copies of photographic stills taken from the video.  A reading of the letter from Mr. Cooke of the 9th of December, 1998 indicates that a written request was made at the time for a copy of the video tape relevant to the case in the possession of the State and copies of any photographs relevant to the case in the possession of the State.  The replying letter of the 28th of January, 1999 to Mr. Cooke from Mr. Murray indicates clearly in relation to the videos that they were no longer available as they had being returned to the owner after the accused admitted the crime.  The letter indicated that the original stills from both videos were available.
	With regard to the return of the video a supplemental affidavit has been sworn by Detective Garda Eamonn O’Neill in which he indicates that the original video from which the original photo stills were taken was returned to the owner of the shop, City News, in Limerick mistakenly on an unknown date between the still being taken from the tape on the 3rd of July, 1997 and the 23rd December, 1998 when Mr. Murray raised queries with the Gardaí regarding the video and other matters enquired in to by the defence.  The witness says that when he first saw the video and took the stills he was in no doubt that the person on the video and in the stills was the Applicant with whose facial and physical features and demeanour he is familiar.  He says that it was on the basis of the video and stills that he arrested the Applicant.
	Michelle Cosgrave a Legal Executive with the firm of John Devane Solicitors states that on the 29th of November, 2000 she phoned the Circuit Court office and talked to an official and requested information on the court file in relation to the termination of the trials against the Applicant on the 5th of February 1999 and the 20th of April 1999.  She was informed that she would have to contact the stenographer who was based in Dublin to be provided with a copy of the transcripts.  She further states that she then went down to the Circuit Criminal Court office and asked an officer there to show her the file in the case against the Applicant.  This witness has exhibited a copy of the statement of proposed evidence of Detective Garda Eamonn O’Neill which is in the Book of Evidence against the Applicant.  This statement indicates that at the time of the arrest of the Applicant and of his detention at Henry Street Garda Station he had a conversation with the Sergeant Gallagher who was the officer in charge.  He says that as a result of the conversation the Applicant was detained under Section 4 of the Criminal Justice Act of 1984. 
	 Submissions on behalf of the Applicant 
	Reliance is placed essentially on the decision of the High Court in the case of Murphy-v-Director of Public Prosecutions [1989] I.L.R.M. 71.  That case concerned an allegation of an unlawful taking of a motor vehicle and dangerous driving.  The offence was alleged to have occurred on the 11th of April, 1987.  The Applicant was charged with a number of offences and remanded to the 12th of May, 1987.  On that date his Counsel informed the Garda Sergeant in charge of the prosecution that the Applicant’s legal advisors wished to inspect the results of any forensic examination of the car and in particular the results of any finger print tests which had being carried out.  He was informed that no such examination or tests had being carried as that they were not considered necessary.  On the 14th of May, 1987 the Applicant’s Solicitor wrote to the Garda Sergeant again requesting a sight and the results of any forensic examination and informing him that the Applicant wished to have the vehicle examined by a person expert in the field of finger prints.  On or about the 20th of May, 1987 a reply was sent informing the Solicitor that the car was available for inspection. On or about the 11th of June 1987, the Applicant’s Solicitor telephoned to arrange a time and place for the car to be examined but was then told that it had been removed on the 26th of May and was no longer available for inspection.  In that particular case Lynch J. stated at page 76 of the report

 “It is clear that the Gardaí were made aware at an early stage in the proceedings of the Applicant’s wish to inspect and test the motor car which was in their possession. I am satisfied that being so aware that the Gardaí ought not to have parted with the possession of the car without examining it forensically or alternatively they should have notified the Applicant’s legal representatives of their intention of giving it back.”  

	Lynch J. went on to hold that the action of the Gardaí was in the circumstances such as to amount to a breach of the rule of fair procedures.  On this basis he made an order restraining the Director of Public Prosecutions from further proceeding with the prosecution against the Applicant.

	With regard to the arrest of the Applicant it was submitted that his arrest was 
unlawful in so far as he was not informed of the reason for his arrest by Detective Garda O’Neill and reliance in this regard was placed on the authority of Christie-v-Leachinsky [1974] A.C. 587.  It was further submitted that the statement allegedly made by the Applicant on the 14th of October, 1997 did not truly or accurately reflect what the Applicant actually said.  It is pleaded that the Applicant is unable to read or write and that the statement was not read to the Applicant prior to signing of same.  
	A further submission is made that the application made by the investigating Garda on the 14th of October, 1997 to Superintendent O’Boyle at Henry Street Garda Station to extend the period of detention of the Applicant for a period not exceeding 6 hours on the expiry of his initial six hour period of detention was made in circumstances where the request was to enable an identification parade to be held and also other measures to be taken including having the Applicant photographed, finger printed and palm printed for the proper investigation of the offence for which he was being detained.  In so far as no identification parade was held it is submitted that the Applicant was in fact unlawfully detained in the extended period.  It is submitted that the holding of an identification parade is a necessary prerequisite to the proper investigation of the matter, as evidence of identification was relied on by the investigating Detective Garda Eamonn O’Neill.
	In so far as there was conflict of evidence in relation to the circumstances of the Applicant’s arrest it is not  possible for this court to resolve that dispute in favour of the Applicant in so far the onus of proof rests upon him.  Furthermore, in relation to the statement alleged to have been made by the Applicant this is quintessentially a matter for the court of trial and not for this court in an application for Judicial Review.  With regard to the failure to carry out an identification parade it is clear that were identification evidence the only evidence against the accused person, an identification parade would be essential but in the instant case the essential reliance by the prosecution was and is upon the statement allegedly made by the Applicant when in Garda custody.  I am satisfied that on the basis of the evidence before me that I cannot hold that the aspect relating to the extension of time would in any event have formed a sufficient basis for this court to grant the Applicant the relief of an Injunction against the Director of Public Prosecutions which he seeks.  It is further to be noted that these three areas are not strictly speaking within the terms of the Order giving the Applicant leave for Judicial Review in these proceedings.
	The essential aspect of this case which remains to be determined is the effect of the failure to produce the video requested by the Applicant’s Solicitor at the time of the request in December 1998 or the previous application allegedly made in July 1998 or at the time of the subsequent trials of the accused.  It is submitted that the Applicant is entitled to see and test the evidence presented on behalf of the prosecution. It is submitted that this case is on all fours with the Murphy case previously referred to herein.  
	Submissions on behalf of the Director
	On behalf of the Director reliance is placed upon the failure of the Applicant to move at an early time to seek a copy of the video and further to move promptly to this court for leave for Judicial Review in any event in so far as the Application for leave was made after the second trial against the accused, which resulted in the trial being aborted by direction of the trial Judge.  Reliance is placed upon the decision of Rogers-v-Director of Public Prosecutions [1992] I.L.R.M. 695 in a case bearing some similarity to the Murphy case. O’Hanlon J. stated inter alia at page 698 of the report:-

“A lengthy period was allowed to elapse between the date when the present applicant was arrested and the first intimation to the Gardaí that the car was required for forensic examination.  A forensic examination was, in fact, carried out on behalf of the prosecuting authorities by Garda James Egan on the day after the occurrence, and he has deposed to the fact that he is a qualified scene-of-crime examiner for this purpose and sought for fingerprint evidence with negative results.”

	Further reliance is placed upon the decision of the Supreme Court in the case of Kevin Daly-v-Director of Public Prosecutions unreported 11th April, 1994 where Finlay CJ. delivering the judgment of the Court relied, inter alia, upon the decisions of the Supreme Court in the case of D-v-Director of Public Prosecutions [1994] 2 I.R. 465 and said Z-v-Director of Public Prosecutions [1994] 2 I.R. 476 to the effect that the court can and should intervene if but only if there is an unavoidable or inevitable unfair trial to be seen as occurring, not one which cannot be avoided by directions and proper charges given to a jury by a trial Judge.  
	Further reliance was placed by Counsel on behalf of the Director of Public Prosecutions upon the authority of Ian Dutton-v-Director of Public Prosecutions being an unreported judgment of Flood J. delivered the 9th July, 1997.  Like the Rogers case this was again a case involving an unlawful taking of a motor car and damage to a motor car alleged against the Applicant.  On the date of the alleged offences the Gardaí returned the car to the owner having had it forensically examined.  It was only some 23 months after the event that for the first time mention was made of an inspection of the car on behalf of the Applicant.  The Applicant complained that he had been deprived or denied a basic fairness, deprived of a reasonable opportunity of rebutting evidence against him and that vital evidence relevant to his guilt or innocence had being disposed of and irrevocably changed due to the actions of the Gardaí in returning the car on the day of his arrest to the owner for overhaul.  Flood J. having considered the decisions of Murphy-v-Director of Public Prosecutions, Rogers-v-Director of Public Prosecutions and Daly-v-Director of Pubic Prosecutions, all referred to herein,  refused the relief sought, having in particular applied the principles outlined by O’Hanlon J. in the Rogers  case.  The second of the considerations indicated by O’Hanlon J. in the Rogers case  was that in relation to any forensic information whether by the Gardaí or on behalf of the accused person it should be sought and should take place within a reasonable time.  It is to be noted that the decision of the High Court was affirmed in an ex-tempore decision of the Supreme Court delivered on 14th July, 1998.
	In light of the authorities referred to by Counsel for the Director of Public Prosecutions it is submitted that the instant case does not fall within the considerations outlined in the Murphy case and in the subsequent cases referred to.  In particular it is submitted that the Applicant has been guilty of  very considerable delay in making the application for the video in the first place.  In this regard reliance is placed upon the fact that the first written request for this was made in December 1998 in circumstances where the Applicant had been arrested and charged in July of 1997.  Furthermore, the Murphy case is contrasted with the instant case on the basis that in the Murphy case the Applicant had denied involvement in the crime alleged against him while in the instant case the Applicant has made an inculpatory statement.  With regard to the application to this Court, it is submitted that  the Applicant has being guilty of undue delay in bringing this application in so far as the circumstances were known to the Applicant some considerable time before he moved to this court.  In this regard reliance is based upon the provisions of Order 84 Rule 21 of the Rules of the Superior Courts in which an Applicant, seeking relief of the nature sought in these proceedings, is obliged to move promptly to the Court for leave and in any event within a period of three months.  Finally, Counsel for the Director of Public Prosecutions points out in the context of the proposed trial against the Applicant it is the intention of the prosecution to rely on the statement and not on the video evidence or on the photographic stills.  
	CONCLUSIONS
	Having regard to the fact that it is the intention of the prosecution to rely upon the inculpatory statement of the Applicant and not on the photographic stills taken from the video which was returned to the owner, I am of the opinion that this case can clearly be distinguished from the cases of Murphy-v-Director of Public Prosecutions and the other cases cited on behalf of the Applicant.  It is to be noted that the prosecution case is not one relying upon visual identification itself, but rests simply on the statement alleged to have been made by the Applicant himself when arrested by the Gardaí.  Were the prosecution to rely upon the photographic stills taken from the video I believe that a real problem would exist whereby the Applicant would be deprived of his opportunity of testing the evidence of the photographic stills.  I am also influenced by the fact that the written request for the videos was not made until approximately 18 months after the Applicant had being arrested and while the videos were returned at some time prior to that in circumstances where it is accepted that that should not have taken place, I cannot conclude that if a timely application had being made that the Applicant would have been deprived of an opportunity of viewing the video evidence.  Furthermore while the Applicant sought discovery of the video by letter dated the 9th of December, 1998 from his Solicitor to the State Solicitor, he was informed by reply of 28th January, 1999 of the absence of the video.  It was not until the 14th day of June, 1999 that application was made to the High Court for liberty to seek Judicial Review against the Director and the Respondent Judge and in this regard it cannot be said that the Applicant has moved promptly in seeking the relief which he seeks.  Nevertheless, as indicated already, even had the Applicant moved promptly, I would still be of the view that he has failed to show that he has being deprived of a fair trial by reason of the absence of the video in circumstances where the prosecution case will rest upon an alleged inculpatory statement made by the Applicant.  It is open to the Applicant to challenge this or any other evidence adduced on behalf of the prosecution in the proposed trial.  In all the circumstances of this case I must refuse the Applicant the relief which he seeks.