Neutral citation Number:  [2007] IEHC 137
2006 279JR, 2006 244JR, 2006 290JR
 [2006 279JR, 2006 244JR, 2006 290JR]
 
BETWEEN 

O'Sullivan, O'Herlihy and MooreO'SULLIVAN, O'HERLIHY AND MOORE
PLAINTIFFS
 
-and-

DPPDPP
DEFENDANT 

EX TEMPORE JUDGMENT OF Mr Justice FeeneyMR JUSTICE FEENEY delivered on the 30th day of March, 200730th day of March, 2007

The Applicant's claim is for the judicial review by way of:  
1.	An order in the nature of a permanent injunction, prohibiting the Respondent from taking any further steps in the prosecution of each of the Applicants on the charges pending before Cork Circuit Criminal Court under various bill numbers;
2.	For an order in the nature of an interlocutory injunction preventing the Respondent from taking any further steps in the prosecution of the Applicants on the said charges; 
3.	An order by way of Prohibition prohibiting the trial of the Applicants on the said charges; 
4.	An order in the nature of a stay preventing the trial of the Applicants on the said charges. 

This court granted each of the three Applicants leave to seek judicial review on 13th March 2006. 

The first Applicant is charged with one count, that he used words which were racist inside East Village Bar, Douglas Village East, Douglas, County Cork, contrary to Section 2 of the Prohibition of Incitement to Racial Hatred Act 1989, on 7th February 2004, and one count of violent disorder, on the same date and at Douglas Village East, contrary to Section 15 of the Criminal Justice Public Order Act 1994. 

The second Applicant is charged with similar offences. 

The third Applicant is also charged with a similar offence contrary to Section 15 of the 1994 Act, and also with an offence of assault causing harm contrary to Section 3 of the Non‑Fatal Offences Against the Person Act 1997, arising out of the same overall incident. 

For the purpose of this judgment, the Applicants are listed in the following order.  Maurice O'Herlihy is deemed the first, Donnacha O'Sullivan is deemed the second, and Dominic Moore is deemed the third Applicant. 

It is the prosecution of these offences which the Applicants seek to prohibit.  The basis for all the Applicants' claims for relief herein is the same.  The Applicants all claim that, by virtue of the failure of the Gardaí to seek out and preserve video evidence available to the East Village Management Company Limited, that this has resulted in each of the Applicants being deprived of access to evidence which would assist their defence, as a result of which they have been placed in a situation where they cannot obtain a fair trial, and that there is a real risk of an unfair trial. 

I will return later in this judgment to what the evidence establishes about and concerning the video recording which it is claimed is unavailable. 

It is common case that in applications of this type it is for the Applicants to establish that there is a real risk of an unfair trial.  There is also no issue but that the three Applicants are entitled to a trial conducted in due course of law, in accordance with fair procedures, with every opportunity to defend themselves.  See State (Healy) v Donoghue [1976] IR 325, O'Higgins CJ, at page 349.

The High Court, in 1987, identified the obligation that evidence relevant to guilt or innocence must, so far as is necessary and practicable, be kept until the conclusion of the trial, and that an accused person must be afforded every reasonable opportunity to inspect all material evidence.  That was in an ex tempore judgment of Lynch J of 10th November 1987, in the case of Murphy v DPP, which is reported in 1989 ILRN, at 71. 

The nature and extent of this obligation was further considered by the Supreme Court in Braddish v DPP [2002] 1 ILRM 151.  Hardiman J, having reviewed the authorities, concluded that it was a well‑established principle that evidence relevant to guilt or innocence of the accused must, so far as is necessary and practicable, be kept until the trial concludes.  (See pages 155 and 156.) 

Hardiman J went on to state, at page 157:

"It is the duty of the Gardaí, arising from 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 statement of the law encompassed, not only an obligation to preserve evidence, but also identified a requirement to seek out evidence. 

Hardiman J dealt with the extent of the obligation to preserve evidence and confirmed that a duty to preserve and disclose has to be interpreted in a fair and reasonable manner.  He said, (at page 159:)

"It cannot be interpreted as requiring the Gardaí to engage in disproportionate commitment of manpower or resources in an exhaustive search for every conceivable kind of evidence.  The duty must be interpreted realistically on the facts of each case."

That quotation obviously equally applies to the seeking out of evidence. 

It is clear that there is a duty to preserve, disclose and to seek out evidence.  However, it is also clear that such obligation or duty is not absolute.  There are many and varying factors that will impact on the obligation.  For example, the obligation to preserve might be affected by the volatile or unstable nature of the item of evidence, or by a competing obligation to return property, either real or personal, to its lawful owner pending trial. 

There can be no absolute obligation, as the obligation is qualified by the concept of "as far as is necessary and practicable".  It is recognised by Hardiman J, at page 159 of his judgment, that:

"A duty so qualified cannot be precisely or exhaustively defined in words of general application."

The obligation to seek out evidence is subject to even a greater number of factors for consideration by reference to the circumstances in an individual case than the obligation in relation to the preserving of evidence.  The requirement is to look at the obligation to seek out realistically on the facts of each case.  This requires the court to approach the facts in a critical but pragmatic manner, ensuring that the court does not avail of hindsight or to seek to establish itself as a review body for the scope and nature of criminal investigations.  A court should be circumspect in exercising the power to prohibit trials, and should only do so in relation to evidence which was either not sought out or not preserved and where the Applicant has discharged the onus of showing a real risk of an unfair trial or prejudice or unfairness.

The requirement for circumspection and a critical but pragmatic approach is demonstrated by the statement of McGuinness J in the Supreme Court in Dunne v DPP [2002] 2 ILRM, 241, where she commented on the dissenting judgment of Fennelly J in the same case in the following terms at page 245. 

“Since there is no evidence that the video tapes in question were ever in the possession of the Garda Siochána, there can be no question of a failure to preserve that evidence, as there was in the Braddish case, or, for example, in Murphy v DPP [1989] ILRM 71.  The decision of this court turns, therefore, on whether the further prosecution of the appellant should be prohibited on the ground that the Garda Siochána failed in their duty to ‘seek out’ evidence which had a ‘bearing or potential bearing on the issue of guilt or innocence’.

In his judgment, Fennelly J expresses the view that to impose on the Gardaí such a duty to seek out evidence represents ‘a very significant new step in the law’.  He envisages a danger that ‘there will develop a tendency to shift the focus of criminal prosecution on to the adequacy of the police investigation rather than the guilt or innocence of the accused’ and that trials will be prohibited wherever a court can be persuaded that the Gardaí have failed to seek out any identifiable evidence which might even possibly tend to exonerate the accused.  It seems to me that Fennelly J's anxieties in this regard are reasonable and that such dangers do exist.  It is essential that a duty on the part of the Gardaí to seek out relevant evidence should not be too widely interpreted.  As was stated by Hardiman J in Braddish v DPP, such a duty ‘cannot be interpreted as requiring the Gardaí to engage in a disproportionate commitment of manpower or resources in an exhaustive search for every conceivable kind of evidence.  The duty must be interpreted realistically on the facts of each case’. 

Where a court would be asked to prohibit a trial on the grounds that there was an alleged failure to seek out evidence, it would have to be shown that any such evidence would be clearly relevant, that there was at least a strong probability that the evidence was available, and that it would, in reality, have a bearing on the guilt or innocence of the accused person.  It would also be necessary to demonstrate that its absence created a real risk of an unfair trial.”
 
The obligation to seek out evidence must be viewed in a practical rather than a theoretical way.  Regard will have to be had to the nature and type of evidence already obtained.  In this case the fact that the nearby video recording from the bar's own CCTV was available and the content of that recording would be a relevant factor in a realistic application of the duty to seek out further evidence.  This requirement of a realistic approach is illustrated by the decision of Finlay Geoghegan J in Connolly v DPP, (unreported judgment of 15th May 2003), where she held, concerning an alleged failure to preserve a car after an alleged incident of so‑called joyriding, that on the facts of the case, given that the Applicant was arrested in the car, that the Gardaí were not under any duty to seek fingerprint evidence from the car prior to returning it to the owner.  In so holding, she relied on the duty to seek out evidence being interpreted in a realistic manner on the facts of each case. 

It is also the case that the court, when approaching the issue of alleged failure to seek out evidence that the onus is on the Applicant, and that the onus is to establish a real risk of an unfair trial.  The existence of such onus and its nature is identified in the judgment of Hardiman J in the Supreme Court case of Scully v DPP [2005] 1 IR 242, at page 252, where Hardiman J states:

"Delay is significant not so much for its bare length (in this case, for instance, it was considerably less than the unexplained delay in commencing the prosecution) but for the indication that it provides that the case is based on a “remote, fanciful or theoretical” possibility, rather than a real desire to obtain evidence believed to be potentially exculpatory.  To put this another way, all the Applicant has done here is merely to invoke the possibility that exculpatory evidence at one time existed, that there was something visible on the video, despite the new evidence.  He must do more than that.  In the words of Finlay CJ in Z v DPP [1994] 2 IR 476, at page 507 he must  “... establish a real risk of an unfair trial...”.  The importance of the first adjective in this phrase is that it excludes a risk which is merely remote, fanciful or theoretical.  The need to meet this requirement involves a much greater engagement with the actual state of the evidence than is apparent here.  The Applicant's case did not at all engage with the facts provided in the additional statements in April, 2003, but simply considered them as irrelevant.  This omission represents a flight into unreality."

The extent of the onus on the Applicant is that an Applicant must show, as a matter of probability, that arising from the absence of some particular piece of evidence, there is some injustice, prejudice or a real risk of an unfair trial, which cannot otherwise be avoided.  See the judgment of Kearns J in O'Callaghan v The Judges of the Dublin Metropolitan District Court [2004] 2 IR 442, (at page 451).

It is also clear from the authorities opened to this court that in seeking to discharge the onus an Applicant must engage in a specific way with the evidence actually available so as to make the risk apparent. 

From the foregoing review of the authorities, the position is that when the court comes to look at the facts of a particular case, regard must be had to certain matters, namely: 

(a) that the suggested absent evidence would have to be shown as clearly relevant; 

(b) that there was a strong probability that it was available; 

(c) that it was not only available but would also amount to evidence; 

(d) that it would have a bearing on the guilt or innocence of the accused; 

(e) that the onus to establish the real risk of an unfair trial is on the Applicant; 

(f) that in discharging the onus, the court cannot proceed on the basis of theoretical or remote possibility and the Applicant must engage with the facts in a specific way to make the risk apparent; 

(g) that the court must guard against the use of hindsight; 

(h) that most importantly, the court must be realistic in considering the obligation to seek out evidence. 

The relevant facts of this case, in relation to the claim of failure to seek out evidence, are as follows: 

1.  The alleged missing video evidence relates to events that occurred outside the East Village Bar on 7th February 2004.

2.  There were a number of witnesses to those events. 

3.  There was a video CCTV in place on the outside of the bar which covered the area where the incident occurred.  The incident went out of the area of coverage of that CCTV camera for approximately 17 seconds, the coverage of the incident being apparent at 03:12:38 and again at 03:12:56.  (See the affidavit of Emmet Boyle, paragraph 15, sworn on 2nd March 2006.)  

4.  That video recording of that CCTV was sought out and retained by the guards, and forms part of the evidence available to the court and the Applicants herein.  (See the affidavit of Michael Dinneen, sworn on 17th July 2006, paragraphs 4 and 6.) 
 
5.  At the time of the incident the Gardaí checked, not only the CCTV camera outside the bar, but also checked the angles of other visible cameras, to see if they could have captured any footage of the incident, and all visible cameras, other than the bar one, were pointed in a direction away from the area of the incident.  (See the affidavit of Michael Dinneen, paragraph 8, sworn on 17th July 2006.)

6.  The CCTV camera which, it was claimed, would have covered the area out of shot of the bar's camera was one of the CCTV cameras operated by East Village Management Company Limited.  (i.e. That is the management company for the centre rather than the bar.)

7.  The camera which it is suggested might have caught the incident was a dome camera, which did not look like a camera and was covered in opaque glass and "simply did not have the appearance of a security camera".  The Gardaí were therefore unaware of the dome camera.  The management company operated a number of cameras, and the dome camera was situated at a point in the development furthest away from the bar.

8.  CCTV footage had been provided by the management company to the Gardaí on previous occasions, including coverage of the area outside the bar, but there is no indication that this was from the dome camera or that the Gardaí were aware of the existence of the dome camera. 

9.  The dome camera was situated some considerable distance from the bar.  The court was informed that, not only was it the most distant of the cameras operated by the management company, but that it was some 100 metres from the bar. 

10.  The dome camera in place at the time of the incident is still in place, but the recording system changed in March, 2004, from video that is analogue to a digital recording system.  That was shortly after the incident the subject of the prosecutions.   

11.  The digital recording system provides a better image, but the video system was capable of capturing images of the area outside the bar, if the camera was trained on that area.  The dome camera could roam or be fixed in area of coverage.

12.  The manager of the management company, Paul Barry, has sworn an affidavit and exhibited still pictures from the digital recording system, taken in daylight, to show the coverage of the area outside the bar.  The incident in question happened during the hours of darkness.

13.  There is no reference to the capacity of the video system to record in the hours of darkness, or indeed the new digital system, and the capacity to record or the quality of pictures if taken in the hours of darkness is a matter for speculation.

14.  The court does not know if the dome camera was covering the relevant area outside the bar at the time of the incident.  The most that can be said by Mr Barry is that it was a roaming camera, but at weekends ... and the incident herein occurred at the weekend ... it was usual to programme the camera so that it was trained on the area of the bar.  However, on occasions, Mr Barry set it to rotate, and he cannot recall where it was programmed to record in February 2004.  (See paragraph 14 of Mr Barry's affidavit of 5th October 2006.) 

15.  Even if the camera was targeted at the bar on the night in question, and even if useful images could be generated at nighttime, the images would not be moving images, but rather a still image or images.  Paul Barry explained the situation in his affidavit of 2nd September 2006.  At the time of the incident, the four cameras of the management company recorded onto one tape, and the only one of the cameras with a capacity of capturing images outside the bar was the dome camera.  The images from the four cameras could be recorded at the same time.  Mr Barry went on to aver, at paragraph 12:

"Garda Dinneen says, at paragraph 18 of his affidavit, that the video would have recorded only one second in every 11.  I do not have the technical expertise to comment on that, but it does not tally with my recollection of playing back recorded incidents from tapes recorded over a long period.  The video did not record fluid movement, but the gaps between the frames were much shorter than 10 seconds."

The Applicants have led no technical evidence as to the capacity of the dome camera and the then video recording system to record useful images at night, or as to the duration between the still shots.  The court is left in the position that what the evidence shows, in relation to the potentially missing video evidence, is that the camera might, maybe even probably, have been directed at the incident, but there is no evidence as to whether useful images could be obtained at the relevant distance during nighttime, and that the likely recording, if it occurred, and if it was capable of use, would consist of one or two still shots and not a recording of fluid movement. 

On the basis of those facts, this court is absolutely satisfied that the Applicants have failed to discharge the onus on them to prove a real risk of an unfair trial or any prejudice or injustice.  

Considering the facts of this case, if this court was to interpret the duty to seek out evidence on the guards on a realistic basis, it would conclude that the duty to seek video evidence was properly and adequately carried out by the guards obtaining the bar's CCTV recording and checking the immediate area to ascertain if any other cameras were directed at the scene of the incident.  It would be unrealistic, and the clear use of hindsight, to suggest that the Gardaí should have sought video evidence where they could not observe any camera covering the area, and where the suggested source of the recording was distant and did not have the appearance of a camera.  To place such an obligation on the Gardaí would, in this court's view, be unrealistic. 

Even if the court did not form the view in relation to the unrealistic nature of the suggested obligation in this case, the court would come to an independent finding that the Applicants have totally failed to establish that the suggested video recording would amount to real evidence.  The court cannot be satisfied that any images ever existed, and even if any images existed, the Applicants have singularly failed to demonstrate by evidence that such images would be useful. 

The court is also satisfied that the possible existence of one or two still shots could never meet the test of absent evidence, clearly relevant, amounting to evidence likely to impact on the guilt or innocence of the Applicants. 

What has been established here amounts at best to a theoretical possibility or mere speculation.  The claim of missing evidence on the facts available to this court is so remote that it cannot possibly be suggested that the Applicants have discharged the onus on them.  This court, in adopting a realistic approach, which is both critical and pragmatic, is absolutely satisfied that a fair trial can occur, and all or any matters concerning the nature and extent of the video evidence can be dealt with at the trial. 

The court determines that the Applicants’ claim herein must fail on the grounds identified.  In the light of this finding, it is unnecessary for the court to consider the issue of delay which was raised by the Respondent in argument. 

The Applicants’ application for judicial review is therefore refused.  

Approved:	Feeney J.