High Court of Ireland Decisions
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URL: http://www.bailii.org/ie/cases/IEHC/2004/130.html
Cite as: [2004] IEHC 130
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Twomey v. D.P.P. [2004] IEHC 130 (21 July 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/130.html Cite as: [2004] IEHC 130 |
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HC 266/04
[2004 No. 90 J.R.]
BETWEEN
APPLICANT
RESPONDENT
JUDGMENT of Mr. Justice Quirke delivered the 21st day of July, 2004.
By order of the High Court (O'Neill J.) dated 9th February, 2004, the applicant was given leave to seek the following relief by way of judicial review:
1. An order of prohibition or alternatively an injunction restraining the respondent from continuing to prosecute the applicant in respect of an offence contrary to s. 23 of the Larceny Act, 1916 (as substituted) in respect of the alleged commission of an offence on or about the 31st day of October, 1999, at New Street in the City of Dublin 8.
2. Certain declaratory relief ancillary to the order restraining the prosecution of the offence.
FACTUAL BACKGROUND
The facts which have given rise to this application are not in dispute and are as follows:
1. On 31st October, 1999, a man named Terence Donnan was robbed of the sum of IR£550.00 at the Texaco Service Station, New Street, Dublin 8. The event was apparently recorded on a video tape which had been placed in a security camera on the premises the day before the robbery. On 31st October, 1999, in the aftermath of the robbery, the tape was handed to Garda Niall Guinan of Donnybrook Garda Station who viewed the tape but could not identify the perpetrator of the robbery from the tape because the face of the perpetrator was hidden from the camera.
2. Garda Guinan placed the videotape in his personal locker in Donnybrook Garda Station.
3. Mr. Jonathon Campbell who was working in the service station at the time of the robbery identified Manus Toomey (the applicant) who was then known to him to Garda Guinan as the man who had committed the robbery. When Garda Guinan sought to interview the applicant he was unable to locate him and was advised that the applicant had left the jurisdiction and gone to England.
It is acknowledged that the applicant (a) was an immediate suspect in respect of the robbery, (b) left the jurisdiction shortly after 31st October, 1999, (c) did not return to the jurisdiction until shortly before 27th June, 2002, and (d) then went to Kevin St. Garda Station where he made a statement of admission to Garda Shane Costello in relation to the robbery.
4. On 27th June, 2002, the applicant was formally charged with the commission of the offence of robbery contrary to the provisions of s. 23 of the Larceny Act, 1916 (as substituted by s. 5 of the Criminal Law (Jurisdiction) Act 1976) and on 31st October, 2002, a book of evidence was served upon the applicant which contained inter alia statements of the intended evidence of witnesses who were to be relied upon by the State in support of the charge preferred against the applicant.
5. The principal evidence apparently implicating the applicant in the commission of this alleged offence is:-
(a) the testimony of Terence Donnan and Jonathon Campbell who were present and working in the Texaco Service Station when the robbery occurred and
(b) the statement of admission allegedly made by the applicant to Garda Costello on 27th June, 2002.
6. In his statement of intended evidence contained within the book of evidence Terence Donnan described the robbery and stated that he was threatened with a syringe by the perpetrator and was terrified. He was unable to identify the perpetrator.
7. In his statement of intended evidence Jonathon Campbell confirmed the account of the robbery given by Terry Donnan (including the threatened use of a syringe) and stated that "..I know this man to see. His name is Mannix Toomey and he lives in New St. Gardens."
8. The applicant now intends to challenge the admissibility of the statement of admission which he allegedly made to Garda Costello as admissible evidence against him.
9. On 18th November, 2002, the solicitors on behalf of the applicant requested the opportunity to view the videotape which Garda Guinan had taken into his possession on 31st October, 1999. On 13th November, 2003, the Chief Prosecution Solicitor wrote advising that the video had been misplaced by Garda Shane Costello who had unsuccessfully sought to locate it in June of 2002 after the return of the applicant from England.
9. On 9th February, 2004, the applicant commenced the proceedings which have given rise to this application.
THE APPLICANT'S CLAIM
The applicant claims that he is entitled to the relief which he seeks because there is a real and serious risk that he will receive an unfair trial by reason of the failure on the part of the State to preserve the videotape showing the commission of the crime.
It is accepted that the identity of the perpetrator cannot be established by viewing the video tape so that it is not alleged that the video tape is necessarily capable, by itself, of exonerating the applicant in respect of the charge preferred against him
The applicant says that this videotape is relevant and has a bearing on the issue of his guilt or innocence because the videotape will establish whether or not the crime was committed in the manner alleged by Terence Donnan and Jonathon Campbell – that is, by way of the perpetrator using a syringe as a threat for the purpose of achieving his objective.
The applicant relies upon the decisions of the Supreme Court in Braddish v. D.P.P. [2001] 3 IR 127 and Dunne v. D.P.P. [2002] 2 IR 305 and the principles which have been identified in those two cases as applicable in relation to the procurement and preservation of evidence (and in particular videotape evidence) which is relevant to the guilt or innocence of a person accused of a criminal offence.
The fundamental principle is identified in Braddish v. DPP in the following terms
"It is the duty of the gardaí in their unique investigative role, to seek out and preserve all evidence having a bearing or potential bearing on the issue of guilt or innocence. This is so whether the prosecution proposes to rely on the evidence or not".
However the court was careful to observe that "the duty [to preserve evidence] must be interpreted realistically on the facts of each case".
Ms. Ring S.C. on behalf of the applicant argues that in the instant case the gardaí sought out and obtained relevant and material evidence which has a bearing on the guilt or innocence of the applicant but has failed to preserve that evidence. She says that in consequence there is a real and serious risk that the applicant will receive an unfair trial in respect of the offence with which he has been charged.
THE RESPONDENT'S DEFENCE
Mr. O'Malley on behalf of the respondent acknowledges that the State has failed to preserve evidence which may have a potential bearing on the guilt of the applicant but he says that the absence at the trial of that evidence will not result in any risk that the applicant will receive an unfair trial.
He further contends that the delay on the part of the applicant in seeking the relief which has been sought in these proceedings is such as to disentitle him to that relief. Furthermore he says that the overall conduct of the applicant since the date of the commission of this offence has been such as to make it inappropriate that the court should exercise its discretion to grant the relief which is been sought.
CONCLUSION
Order 84 rule 21(1) of the Rules of the Superior Courts provides as follows:
"An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, or six months where the relief sought is certiorari, unless the Court considers that there is good reason for extending the period within which the application shall be made".
Where the application for leave has not been made "promptly" after the date when grounds first arose the court should not grant leave unless it has been satisfied by way of evidence adduced on behalf of the applicant that there is a good reason why the application was not made "promptly" and the interests of justice require that leave should be granted.
Whether or not an application has been made "promptly" will be a question of fact for the determination of the court in each case. The fact alone that an application has been made within three months (or six months in the case of certiorari) from the date of discovery of grounds is insufficient in itself.
The discretion to grant the relief must, of course, be exercised by the court judicially.
In this case the applicant was aware on 18th November, 2002, of the existence of the video tape which is central to these proceedings His advisers sought a copy of the tape on that date. They wrote enquiring as to the status of the video tape on 27th November, 2002; 11th February, 2003, and 5th November, 2003. On 13th November, 2003, they discovered that it had been misplaced and could not be located.
The applicant instituted these proceedings just over twelve weeks (and therefore within three months) from the date of that discovery. Whether or not he can be deemed to have made this application " promptly" after " … the date when the grounds for the first application first arose" is certainly questionable.
In this case the applicant left this jurisdiction immediately after the commission of a crime at a time when there was evidence available to the gardaí which implicated him in the commission of that crime. He then remained outside the jurisdiction for more than two and a half years. Within days after his return he voluntarily went to a Garda station and made a statement which further implicated him in the commission of that crime.
He was charged with the commission of the offence in question and thereafter had the benefit of expert professional legal advice.
It is clear from the contents of a letter which was sent by his solicitors to the Chief Prosecution Solicitors office on the 18th November, 2002, that the applicant knew then of the existence of a video recording which he now claims is relevant to the charge which he faces. He now claims that this evidence may have a bearing upon his guilt or innocence in respect of the charge preferred against him.
In O'Callaghan v. Judges of Dublin Metropolitan District Court & Director of Public Prosecutions (Unreported, High Court, Kearns J. 20th May, 2004 indicated in relation to a somewhat similar application that:
"It must surely follow that where an applicant professes to have actual knowledge of a relevant video that he should then move with all expedition to seek preservation of a video which virtually every citizen would now understand and appreciate was liable to be erased or taped over if not promptly sought. In this context, delay has a special meaning, a meaning to be derived from the short life expectancy of video material created in this way.
Delays of months should not in my view be permitted to pass by before an applicant, who is aware of its existence, moves to seek production of a video".
In this case the applicant was aware on the 18th November, 2002, of the existence of a video tape which he claims was material to the charge which he was facing. If the tape has the importance now attributed to it both the applicant and his legal advisors must then have known that, by reason of the fact that the applicant had absented himself from the jurisdiction for a period of more than two and a half years from the date of the commission of the offence, the location and preservation of the video tape might well be in jeopardy.
In such circumstances the duty upon the applicant and his advisors to seek out the video tape and to preserve it was at least as great as any corresponding duty which rested upon the State to do so.
In purported discharge of that duty the applicant's solicitors wrote three somewhat desultory reminders to the Chief Prosecution Solicitors over the succeeding twelve months.
Subsequently the applicant did not institute these proceedings until almost three months after it had been discovered that the video tape had been misplaced.
In such circumstances the applicant, cannot be said to have made this application "promptly" within the meaning ascribed to that word by the provisions of Order 84 rule 21(1) of the Rules of the Superior Courts.
Notwithstanding the finding which I have just made the overriding consideration for the court in determining this application is the question of whether or not there is a real and serious risk that the applicant will not receive a fair trial by reason of the fact that the video tape will not be available to be adduced in evidence at his trial.
I have carefully considered that issue and I am not satisfied that the applicant has established that the absence of the video tape as evidence at his trial will expose him to any risk of unfairness.
The evidence upon which the State will principally rely in support of the charge preferred against the applicant will be (a) the identification by Jonathon Campbell of the applicant, (b) the evidence of Terence Donnan in relation to the commission of the crime and, (c) the statement of admission allegedly made by the applicant to Garda Costello.
It is acknowledged that the evidence comprising the content of the video tape does not bear upon either (a) above (the identification of the applicant as the perpetrator of the offence) or, (b) above (the alleged statement of admission made by the applicant to Garda Costello).
It is contended on behalf of the applicant that the video tape will have the capacity either to confirm or cast doubt upon the testimony of Terence Donnan and Jonathon Campbell as to the use of a syringe during the course of the commission of the offence.
The evidence adduced on behalf of the applicant in support of this application has established that on 31st October, 1999, immediately after the commission of the offence, Mr. Stephen O'Brien, who was the manager of the service station on the 31st October, 1999, viewed the video tape in the company of Garda Niall Guinan and Garda Caroline McGuire.
Mr. O'Brien stated "…we looked through the tape and we saw on video the robbery occurring and we identified the culprit on the video…".
It is of significance that it has never been alleged or suggested in these proceedings that the content of the video tape will identify any person other than the applicant as the perpetrator of the offence with which the applicant has been charged. Neither has it been alleged that the video tape will provide evidence demonstrating that the syringe was not used in the manner alleged by Terence Donnan and Jonathon Campbell. What has been carefully and properly contended by Ms. Ring is that the content of the video tape may raise the possibility that a syringe was not used during the commission of this offence.
In short, the applicant, who has himself chosen not to testify in support of this application, wishes to have his legal advisors view the video tape on a speculative basis in the hope that it will assist his defence in respect of the charge preferred against him.
It has not been suggested that Stephen O'Brien or Garda Guinan or Garda McGuire are unavailable to testify as to what they saw on the video tape or that the content of the video tape will not demonstrate the use of a syringe during the course of the robbery in a manner consistent with the testimony of Terence Donnan and Jonathon Campbell.
The applicant and his advisors are entitled and have had the opportunity to interview Mr. Kevin O'Brien, Garda Guinan and Garda McGuire in order to establish what they saw when they viewed the video tape. No evidence has been adduced indicating that such interviews have occurred or, if they have occurred, that they have provided any support for the applicant's contention that the absence of videotape as evidence at the trial will expose the applicant to a real and serious risk of unfairness at this trial.
Having considered the evidence I am satisfied that no such risk has been established by the applicant.
I have earlier found that the applicant has failed to make the application for the relief which he seeks "promptly" within the meaning ascribed to that word by the provisions of Order 84 Rule 21 (1) of the Rules of the Superior Courts
Since I have also found that the applicant has not established that he will be exposed to the risk of an unfair trial it follows that no ground exists for the exercise by the court of its discretion to extend the time limited by the Rules of the Superior Courts within which this application may be made.
It follows further that all of the relief sought by the applicant stands refused.