Daniel Braddish (applicant) v The Director of Public Prosecutions and His Honour Judge Kevin Haugh (respondents).

Judicial Review - Injunction - Prohibition - Restraining prosecution by DPP - Delay in applying for leave to seek judicial review - Rules of the Superior Courts, Order 84 rule 21.

Evidence - Identification - Video tape unavailable to accused - Photographic stills taken from video tape - Fair trial - Larceny Act 1916, section 23 - The Constitution, articles 38.1 and 40.4.1.

The High Court (Mr Justice O Caoimh); judgment delivered 21 December 2000.

Where visual identification evidence becomes unavailable to an accused and therefore cannot be tested by him, the accused is not deprived of a fair trial if the prosecution case rests solely on an inculpatory statement allegedly made by the accused and not on the visual identification evidence.

Mr Justice O Caoimh so held in refusing the applicant relief by way of judicial review.

Bernadette N. Cronin SC and Michael Anthony Maloney BL for the applicant; Diarmuid Rossa Phelan BL for the respondents.

Mr Justice O Caoimh said that by a High Court order made on 14 June 1999, the applicant was given leave to apply for judicial review for an order of prohibition or an injunction directed to the first respondent precluding any further prosecution of the applicant in respect of a charge of robbery of £270.00 contrary to section 23 of the Larceny Act 1916, as substituted by section 5 of the Criminal Law (Jurisdiction) Act 1976, and prohibiting a trial of the applicant on the aforesaid charge by the second respondent or whatever Circuit Court judge might be assigned to hear the case.

Mr Justice O Caoimh said that the application was grounded upon an affidavit of the applicant's solicitor. The applicant's solicitor deposed that the applicant was arrested for robbery on 14 October 1997 pursuant to section 4 of the Criminal Law Act 1997, but the applicant was not informed at that time of the reasons for his arrest and, having been conveyed to a Garda station, the applicant was detained under section 4 of the Criminal Justice Act 1984. The affidavit further deposed that the basis for detaining the applicant was that the investigating garda had video evidence to connect the applicant with the crime. The affidavit further deposed that the applicant agreed to a request made of him to participate in an identification parade and that, at the expiration of the initial six hour detention period, detention for a further six hours was authorised on the grounds that it was necessary to further question the applicant, carry out further inquiries, conduct the identification parade and photograph, finger print and palm print the applicant for the proper investigation of the offence. The applicant's solicitor contended that, because the identification parade was not held in accordance with the authorisation, the authorisation was obtained by a misrepresentation of the true facts.

The applicant's solicitor deposed that the applicant was requested to sign an alleged inculpatory statement that he did not make and that it did not reflect his account of his whereabouts on the night of an alleged assault on his girlfriend. The applicant's solicitor further deposed that the applicant informed him that he was illiterate and that the statement prepared by two gardai was not read to him before he signed it. The applicant's solicitor further deposed that Aeneas McCarthy, solicitor, acting on behalf of the applicant, applied to the District Court on 2 July 1998 for all copy statements of evidence prepared by the two gardai, together with copies of the video and original stills of the video and that the State had failed, refused and neglected to provide same to the applicant. The applicant's solicitor further averred that the applicant was arraigned on the charges on 24 March 1999, that the trial subsequently collapsed at the conclusion of the evidence, and prior to the jury delivering its verdict, when the State failed to provide the original stills in response to a request for same by the jury foreman. At a subsequent retrial before the second respondent, the jury was discharged when reference was made to the video. Finally, the applicant's solicitor deposed that, because of these matters, the applicant would not be afforded a fair trial and would not be properly able to meet the case against him.

Mr Justice O Caoimh said that the applicant was given leave to seek judicial review on the ground that the applicant could not have a fair trial in due course and according to law as is required by articles 38.1 and 40.4.1 of the Constitution because the first respondent had failed, refused and/or neglected to furnish the applicant's legal advisers with copies of and/or an opportunity to inspect the original stills and video.

Mr Justice O Caoimh said that a statement of opposition was filed on behalf of the first respondent. This denied that the DPP failed, refused or neglected to furnish copies of the original stills or to provide an opportunity for their inspection and pleaded that the original video was unavailable because it was returned to its owner.

Mr Justice O Caoimh said that affidavits were filed on behalf of the DPP in support of the statement of opposition. The investigating garda deposed that the applicant was told in ordinary language of the reasons for his arrest, that the video was available at the time of the arrest and thereafter became unavailable because it was mistakenly returned to the proprietor of the premises that was robbed, and he agreed that the applicant was never asked to stand in an identification parade. It was further deposed that no authorisation was sought for an identification parade, authorisation for the applicant's extended detention was not obtained by misrepresentation, the applicant made a full cautioned statement dictated by him after he saw the photograph stills of the robbery and that, after making the statement, it was read over to the applicant who agreed that it was correct and then signed it. The affidavit further deposed that the applicant could read and write and the affidavit indicated that the applicant's solicitor, Mr McCarthy, was given copy statements and photocopies of the original stills taken from the video and that, during the second trial, the applicant viewed the original stills with his counsel and that this was organised by Michael D. Murray, State Solicitor.

Mr Justice O Caoimh said that the affidavit exhibited the signed inculpatory statement and a copy of the direction to extend the applicant's detention for a further six hours and that the latter showed that the basis for this detention was that the authorising officer had reasonable grounds for believing that the further detention was necessary for the proper investigation of the alleged offence.

Mr Justice O Caoimh referred to the affidavit sworn by Michael D. Murray, State Solicitor, which indicated that the jury failed to reached a verdict at the first trial, that the court file illustrated that the stills were accepted into evidence as exhibits and that, prior to the second trial, he personally arranged the handing over of the photographic stills to the applicant's solicitor and counsel so that they could be viewed in consultation with the applicant. The State Solicitor further deposed that, during the second trial, the court was advised that the original video had been returned to its owner and was no longer available and that, to the best of the deponent's recollection, this was done in the absence of the jury and that the second respondent ruled out the photographic stills as evidence. The State Solicitor further deposed that, in the course of cross-examining the investigating garda, counsel for the applicant adverted to the existence of the video and cross examined the investigating garda about what happened to it. Mr Justice O Caoimh said that the affidavit further indicated that the second respondent was concerned that the jury might be prejudiced as a result of the cross-examination, that counsel for the prosecution applied to the second respondent to direct the jury to ignore all the evidence or any reference to the video and or the photographic stills rather than discharge the jury but that the second respondent was not happy to proceed on this basis and discharged the jury.

Mr Justice O Caoimh referred to the contents of the supplemental affidavit sworn by the State Solicitor, and the exhibited correspondence. Mr Justice O Caoimh said that the letter of 9 December 1998 from John Cooke, solicitor, to the State Solicitor indicated that it was a request for copies of the video and any relevant photographs in the State's possession. Furthermore, the reply, of 28 January 1999, clearly indicated that the video evidence was returned to the owner after the accused admitted the crime and was no longer available. This letter also indicated that the original stills from both videos were available.

Mr Justice O Caoimh referred to the supplemental affidavit sworn by the investigating garda wherein it was indicated that the original video (from which the original photo stills were taken) was mistakenly returned to the owner of the shop on an unknown date between 3 July 1997, when the stills were taken from the tape, and 23 December 1998, when the State Solicitor raised queries with the Garda regarding inter alia the video. The investigating garda deposed that, when he saw the video and took the stills, he was in no doubt that the person on the video and stills was the applicant and that it was on the basis of the video and stills that he arrested the applicant.

Mr Justice O Caoimh said that a legal executive with the applicant's firm of solicitors, deposed that she spoke on the telephone to an official in the Circuit Court office on 29 November 2000, requested information on the court file in relation to the termination of the trials on 5 February 1999 and 20 April 1999 and that she was told that, to obtain a copy of the transcripts, she would have to contact the stenographer in Dublin. She further deposed that she went to the Circuit Court office to view the file against the applicant and, exhibited to her affidavit, was a copy of the statement of the proposed evidence of the investigating garda which was in the book of evidence. Mr Justice O Caoimh said that this statement indicated that, at the time of the applicant's arrest and detention, the investigating garda had a conversation with the officer in charge, as a result of which the applicant was detained under section 4 of the Criminal Justice Act 1984.