Mr Justice O Caoimh said that the applicant essentially relied on the High Court decision in Murphy v DPP [1989] ILRM 71. That case concerned an allegation of unlawful taking of a motor vehicle on 11 April 1987. The applicant was charged with a number of offences and remanded to 12 May 1987, on which date his counsel informed the prosecuting garda sergeant that the applicant's legal advisers wished to inspect the results of any forensic examination of the car, particularly the results of any finger print tests, and he was informed that no such examination or tests were carried out as they were considered unnecessary. On 14 May 1987, the applicant's solicitor wrote to the prosecuting garda sergeant repeating the request for the results of any forensic examination and informing him that the applicant wanted to have a finger print expert examine the vehicle. By reply on 20 May 1987, the solicitor was informed that the car was available for inspection. On or about 11 June 1987, when the solicitor telephoned to arrange the examination, he was told that it was no longer available as it had been removed on 26 May. Mr Justice O Caoimh noted that Mr Justice Lynch had held that the Garda, being aware at an early stage of the applicant's wish to inspect and test the motor car, 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. Mr Justice Lynch had gone on to hold that the action of the Garda was a breach of fair procedures in the circumstances and he made an order restraining the DPP from proceeding with the prosecution.

Mr Justice O Caoimh noted the submission on behalf of the applicant in the present case that his arrest was unlawful because he was not informed of the reason for his arrest and the reliance placed on Christie v Leachinsky [1947] AC 573. Mr Justice O Caoimh further referred to the applicant's submission that that the statement allegedly made by him on 14 October 1997 did not truly or accurately reflect what he had said and his pleas regarding illiteracy and the statement not having been read over to him prior to signing same. Mr Justice O Caoimh also referred to the submission that the applicant's extended detention on 14 October 1997 was unlawful because no identification parade was held and the holding of a parade was a necessary prerequisite to the proper investigation of the matter because evidence of identification was relied upon by the investigating garda.

Mr Justice O Caoimh said that, in so far as the onus of proof rested on the applicant, it was not possible for the court to resolve the conflict of evidence of the arrest in his favour. Mr Justice O Caoimh further considered that the issue of the applicant's statement was a matter for the trial court and not for judicial review proceedings. Finally, Mr Justice O Caoimh said that an identification parade would be essential in circumstances where identification evidence was the only evidence against an accused but that, in the present case, the prosecution were essentially relying on the statement allegedly made by the applicant. On the evidence before him, Mr Justice O Caoimh said that he could not hold that the issue of the extension of the detention period would have formed a sufficient basis on which to grant an injunction against the DPP and he noted that these three areas were not strictly speaking within the terms of the order granting the applicant leave to apply for judicial review.

Mr Justice O Caoimh considered that the essential remaining aspect of the case was the effect of the failure to comply with the request for the video in December 1998, the previous alleged application in July 1998 or at the accused's subsequent trials. Mr Justice O Caoimh noted the applicant's submissions that he was entitled to see and test the State's evidence and that his case was on all fours with Murphy v DPP.

Mr Justice O Caoimh noted the DPP's submissions regarding the applicant's delay in seeking a copy of the video and his failure to apply for leave to seek judicial review until after his second trial. Mr Justice O Caoimh noted the DPP's reliance on Rogers v DPP and Judges of the Dublin Metropolitan District [1992] ILRM 695 where Mr Justice O'Hanlon stated at page 698:

"A lengthy period was allowed to elapse between the date when the present applicant was arrested and the first intimation to the Gardai 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."

Mr Justice O Caoimh noted the DPP's further reliance on Daly v DPP (unreported, Supreme Court, 11 April 1994), where the then Chief Justice, Mr Justice Finlay, delivering the judgment of the court, relied inter alia upon the Supreme Court decisions in D v DPP [1994] 2 IR 465 and Z v DPP [1994] 2 IR 476 which held 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.

Mr Justice O Caoimh also noted the DPP's reliance on Dutton v DPP (unreported, High Court, 9 July 1997) which again involved the unlawful taking of a motor car. Mr Justice O Caoimh noted that the Garda had the car forensically examined on the date of the alleged offences and then returned it to its owner and that the issue of the applicant having the car examined only arose 23 months later. The applicant claimed that he was deprived of basic fairness and a reasonable opportunity of rebutting the evidence against him and that vital evidence relevant to his guilt or innocence was disposed of and irrevocably changed because the car was returned to the owner for overhaul on the day of his arrest. In Dutton, Mr Justice Flood considered Murphy v DPP, Rogers v DPP, and Daly v DPP, and he refused the relief sought, having in particular applied the principles outlined by Mr Justice O'Hanlon in Rogers. Mr Justice O Caoimh noted that the second of the considerations indicated by Mr Justice O'Hanlon in Rogers was that a forensic examination by either the Garda or on behalf of an accused should be sought and conducted within a reasonable time. Mr Justice O Caoimh said that it should be noted that the High Court decision was affirmed in an ex tempore decision of the Supreme Court on 14 July 1998.

Mr Justice O Caoimh considered the DPP's submissions that the present case did not fall within the considerations outlined in Murphy and subsequent cases; the Murphy circumstances were different because the applicant in that case denied the alleged offence whereas the applicant in this case made an inculpatory statement; the applicant was guilty of considerable delay in seeking the video because he was arrested and charged in July 1997 and did not make a written request for it until December 1998; the applicant was guilty of undue delay in applying for judicial review and did not comply with the requirement in Order 84 rule 21 of the Rules of the Superior Courts 1986 that an application for leave to apply for judicial review be made promptly, and in any event within three months; and in the proposed trial of the applicant, the prosecution intended to rely only on the statement and not on the video or the photographic stills.

Having regard to the prosecution's intention to rely on the inculpatory statement, and not on the stills taken from the video, Mr Justice O Caoimh distinguished the present case from Murphy v DPP and the other cases cited on behalf of the applicant. Mr Justice O Caoimh said that it was to be noted that the prosecution's case was not one relying upon visual identification itself, but rested simply on the alleged inculpatory statement. Mr Justice O Caoimh believed that, if the prosecution was simply relying on the photographic stills taken from the video, a real problem would exist whereby the applicant would be deprived of his opportunity to test the evidence of the stills.

Mr Justice O Caoimh said that he was also influenced by the fact that the written request for the videos was not made until approximately 18 months after the applicant's arrest and that, while the videos were mistakenly returned at some time prior to that, he could not conclude that if a timely application had been made the applicant would have been deprived of an opportunity of viewing the video evidence. Furthermore, Mr Justice O Caoimh noted that while discovery of the video was sought by letter on 9 December 1998, and notification of its unavailability was given on 28 January 1999, the application for leave to seek judicial review was not made until 14 June 1999 and so the applicant could not be said to have moved promptly in seeking relief.

Mr Justice O Caoimh reiterated, however, that even if the applicant had moved promptly, he would still consider that the applicant failed to show that the absence of the video deprived him of a fair trial in circumstances where the prosecution's case would rest on the applicant's statement and the applicant could challenge this or any other evidence adduced by the prosecution at the proposed trial.

Mr Justice O Caoimh refused the relief sought by the applicant.

Solicitors: John Devane (Limerick) for the applicant; Chief State Solicitor for the respondents.