CD -v- Director of Public Prosecutions.
Supreme Court
Judgment was delivered on October 23rd by Mr Justice Nial Fennelly, with Ms Justice Susan Denham and Mr Justice Nicholas Kearns concurring.
Judgment
No real risk was demonstrated of an unfair trial due to the absence of a still photograph, taken from a CCTV camera, when the original moving image was not available. The appeal against a High Court ruling to this effect was dismissed.
Background
This was a “missing evidence” case, the eighth before the Supreme Court in two years. Mr Justice Fennelly said: “It is not easy to avoid the suspicion that a practice has developed of trawling through the book of evidence in search of the silver bullet – rather the absent missing bullet – which can put a stop to any trial.”
The case concerned a person charged with a sexual assault on a female Garda officer, along with a charge of assault of the same officer and with threatening, abusive or insulting behaviour in a public place. The appellant pleaded guilty to the latter two charges, but not guilty to the first.
The incident happened on Kildare Street, Dublin, on August 5th, 2005, when the garda was on duty outside Leinster House.
The accused was shouting and using abusive language. The female garda tried to calm him, but he kicked her and resisted her attempt to arrest him.
She called for assistance and he hit her on the back of her head. A male garda arrived and arrested him. During the incident, she claimed he reached down and tried to grab her between her legs, brushing against her thigh, which she said constituted a sexual assault.
There is a number of CCTV cameras in the area and the accused complained that not all the possibly relevant visual recordings were downloaded. The incident was captured on two cameras.
The garda who downloaded the recordings inadvertently downloaded the incorrect segment from one of them, but stills were available from this camera. There was a moving video picture of the whole incident from the other camera, but the defence stated it was of poor quality and did not “tend to prove or disprove” the alleged sexual assault.
The applicant complained that he was at risk of an unfair trial because the video recording from the second camera was not preserved and there was no photograph representing the half- second between the images recorded on the stills that did exist.
Leave was granted for a judicial review challenging the prosecution. This was heard by Mr Justice Iarfhlaith O’Neill, who ruled on March 20th, 2009, that the absence of the video-recording and of still photographs recording the half-second between those in existence, were unlikely to result in an unfair trial.
This was appealed to the Supreme Court.
Decision
Mr Justice Fennelly pointed out that the Supreme Court had previously stated that there was an onus on the accused who seeks an order prohibiting his trial to establish a real risk that he could not obtain a fair trial, meaning a risk of unfairness which could not be avoided by appropriate rulings and directions on the part of the trial judge. The relief of prohibition could only arise exceptionally.
He referred to his own judgment in Savage -v- DPP [2008]in which he summarised the legal principles governing the exercise of this jurisdiction as it had evolved in recent years. Since then there had been seven other cases, one of which, McHugh -v- DPP [2009]had been cited by counsel for the applicant.
There the only evidence against the accused was his identification by gardaí from their viewing of CCTV footage which was no longer available when the case was tried and which had never been seen by the defence.
“The facts of that case do not remotely resemble those of the present,” Mr Justice Fennelly said. “This type of application must be considered in the context of all the evidence likely to put forward at trial.”
In this case, the appellant admitted behaving in a loud, threatening and disorderly way, culminating in a moderately violent physical assault on the garda. The alleged sexual assault was based entirely on the garda’s own statement and there was no other witness or support.
“The assault as described is not such as to prompt any expectation that the event would be caught on the surrounding cameras. The material verbs [relating to the assault] are ‘attempted’ and ‘brushed’,” Mr Justice Fennelly said.
The evidence surrounding the incident was carefully considered by the trial judge, who committed no error in law, nor was one alleged. The Supreme Court was simply being asked to disagree with his finding on the facts.
There was no basis for disturbing the assessment of the facts by Mr Justice O’Neill.
In relation to the photographs themselves, the trial judge has full jurisdiction to rule on any matters such as the admissibility of opinions concerning what they show.
Given the available of footage from the first camera and the stills, Mr Justice Fennelly said he did not believe there was any demonstrated basis for the existence of a real risk of a fair trial by reason of the absence of video footage from the second camera.
The appellant had also called expert evidence to support his claim that a significant still photograph could have been taken from the video recording in the half second that elapsed between the two existing still photographs.
“The first thing to be said about the complaint of absence of photographs at half-second intervals is that it is completely novel,” Mr Justice Fennelly said.
He referred to previous “missing evidence” cases in which the missing evidence had included written contemporaneous notes and a video showing a crime in progress. The duty of the gardaí to preserve evidence had to be interpreted in a fair and reasonable manner.
No failure to preserve evidence could be alleged in respect of an entirely unprecedented claim that still photographs should be downloaded for every half-second of the relevant period.
He also agreed with the trial judge that the allegedly missing photographs would be unlikely to have an impact on the guilt or innocence of the accused.
No serious attempt had been made to demonstrate any error on the part of the trial judge, he said. “The appeal is without merit and I would dismiss it.
The full judgment is on www.courts.ie
Giollaiosa Ó Lideadha SC, instructed by Philip Hannon Co, Dublin, for the appellant; Sunniva McDonagh SC, instructed by the Chief Prosecution Solicitor, for the DPP.