JUDGMENT of Mr. Justice Fennelly delivered the 23rd day of October, 2009.
1. This is yet another “missing evidence” case. Since the decision of this Court in Braddish v Director of Public Prosecutions  3 I.R. 127, many applications have been made to the High Court, and many of them appealed to this Court, for prohibition of criminal trials on the ground that some piece of evidence has been lost or never been retrieved by the gardaí. This Court has heard no less than eight such appeals in less than two years. 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.
2. The present appeal is brought against the refusal of O’Neill J in the High Court to make an order restraining the prosecution of the appellant in the Circuit Criminal Court for a sexual assault.
3. The indictment preferred against the appellant contains four counts, only three being relevant. Firstly, he is charged with committing a sexual assault on a female garda officer contrary to section 2 of the Criminal Law (Rape) Amendment Act 1990 as amended by section 37 of the Sex Offenders Act 2001. Secondly, he is charged with assault on the same officer contrary to s. 19(1) of the Criminal Justice (Public Order) Act 1994. Thirdly, he is charged with threatening, abusive or insulting behaviour in a public place contrary to section 6 of the same Act. The appellant pleaded guilty to the second and third counts and the question of sentence has been adjourned. The appellant’s solicitor has sworn that he maintains his innocence in respect of the first count.
4. I will summarise, firstly, the nature of the assaults alleged as appears from the book of evidence before referring to the complaint regarding missing visual recording.
5. The gist of the evidence generally, excluding any reference to the sexual assault, is that the appellant was walking up Kildare Street at about 2.46 pm on 5th August 2005. The complainant garda was on duty on the footpath outside Leinster House. The street was busy. The appellant was shouting and using abusive and obscene language towards the garda. She tried to calm him and told him he could not be shouting and clenching his fists, but he continued to act in a threatening manner. He kicked the garda twice on the leg. She tried to arrest him but he resisted. She called for assistance. He then boxed her in the back of her head or neck. A male garda arrived in response to the call for assistance and arrested the appellant.
6. The present appeal is concerned only with one further aspect of the garda’s complaint. She says that, at one point, the appellant reached down and tried to grab her between her legs and that his hand brushed off her thigh. This represents the alleged sexual aspect of the assault.
7. The entire incident took a matter of a minute or less. It occurred directly outside Leinster House where the garda was on duty and in uniform. The area is, not surprisingly, covered by a number of CCTV cameras. The complaint is that not all of the possibly relevant visual recordings were downloaded, in particular that while there are very good and clear shots from one camera angle covering a crucial one second interval, there are no corresponding shots covering the half-second before the first shot at the start of a second and the half-second between the beginning and the end of that crucial second.
8. The affidavits sworn for the High Court proceedings describe the data recording system. It consists of about twelve recorders, which are computer hard drives together with associated security cameras covering the area.
9. Sergeant Anthony Brophy of Pearse Street Garda Station explains that there are approximately twelve to fourteen cameras. These relay video footage to each recording unit. The incident with which the prosecution is concerned was captured on camera number 1 (which is on recorder number 5) and on camera number 29, also referred to as camera number 2, (which is on recorder number 9). Camera number 1 looks up Kildare Street towards St Stephen’s Green (with Leinster House on the left); Camera number 29 looks in the opposite direction, i.e., down Kildare Street. Recorded data can later be reviewed, retrieved and copied or recorded onto a compact disc (CD).
10. On 16th August, Garda Christopher Burdock viewed the footage and copied it onto three separate CD’s. He inadvertently downloaded the incorrect segment from camera 29 (looking down Kildare Street). However, a number of stills were taken from that camera. These are central to the complaint, to which I will return. The result is that there is no relevant video or moving footage from camera number 29. However, there is a moving video picture from camera number 1 covering the entire period of the incident. It remains available and has been shown at the hearings in both the High Court and this Court.
11. The High Court (Peart J) gave leave on 6th November 2006 to apply for judicial review in the form of an order of prohibition or, alternatively, an injunction restraining the further prosecution of the appellant on the first count alleging sexual assault. Two complaints are made. Firstly, it is said that the video footage from camera number 1 is of poor quality and does not “tend to disprove or disprove” the alleged sexual assault. The second complaint as made in the Grounding Statement is:
“The said still photographs from Camera 2 relating to the crucial period are of far better quality and clarity than the video footage from Camera 1. One still photograph from Camera 2 may be relied on by the prosecution as indicating that that the sexual assault occurred. The video footage from Camera 2 appears from the stills to have been of sufficient quality to show that no such sexual assault occurred to cast doubt on any such allegation.”
12. The complaint as there developed was that the “video evidence which was not preserved was clearly relevant and would have had a strong bearing on the issue of …guilt or innocence…” It is alleged that the “failure by the Gardaí to preserve this evidence ….” amounted to a breach of the common law obligations of the Respondent to preserve potentially relevant evidence. However, a significant shift subsequently took place based following on an expert report received by the appellant’s solicitors subsequent to the date of the order granting leave.
13. O’Neill J, in his judgment of 20th March 2009, summarised the complaints made on behalf of the appellant, including the modified or additional complaint regarding the absence of still photographs covering half-second intervals. He reviewed and analysed the complaint as follows:
“The evidence establishes that the incident outside Leinster House was captured on CCTV by two cameras; one of these (Camera 1) was positioned close to the pedestrian crossing and facing in towards the entrance to Leinster House. The other camera (Camera 29) was located midway outside the National Museum, looking down Kildare Street and covering the entrance to Leinster House.
As a result of error on the part of the respondent in downloading footage from Camera 29, the incorrect time segment was downloaded with the result that the footage from this camera does not include the lead-up to the incident. Still photographs are available from this camera and are exhibited in the Book of Exhibits with stills from Camera 1 as well.
The relevant footage from Camera 1 was recovered and is intact and available for the trial. This was shown during the hearing of this judicial review application and it shows the entire incident.
Evidence on behalf of the applicant suggested that having regard to the recording rate on Camera 29, some stills were lost. In particular, it was urged on the court that the still immediately preceding Photograph 1 in the exhibit in the Book of Evidence and the still immediately after Photograph 1 were lost. The respondent is not in a position to deny that there was such a loss.
It is the applicant’s case that the loss of these two still photographs is crucial because it is the prosecution’s case that the sexual assault is captured in Photograph 1, and, hence, the immediately preceding still which would have been taken a half a second before, would demonstrate if the conduct of the applicant was consistent with the allegation of sexual assault. Similarly, the still photograph immediately after Photograph 1, again, a half a second later, would also demonstrate whether the conduct or movements of the applicant and Garda Bourke showed part of or the aftermath of the alleged sexual assault or were consistent with it.
In the submission of the applicant, the absence of that photographic evidence puts the applicant at risk of an unfair trial because it is submitted that this evidence could be used by the applicant to challenge and defeat the evidence given by Garda Bourke.
There were two civilian witnesses and one garda witness to the incident, or parts thereof. It is clear from their statements that they not see the sexual assault as described by Garda Bourke.
I have viewed the footage from the other camera, i.e. Camera 1, which shows the entire incident. It shows the applicant approaching Garda Bourke. He approaches from the Trinity College side and goes around Garda Bourke with the result that she turns from facing outwards towards Kildare Street to facing up Kildare Street towards Stephen’s Green and when they become stationary, Garda Bourke is facing the applicant. Both stand at what appears to conversation distance, with the applicant’s back facing up Kildare Street. The result of this is that the applicant’s back faces Camera 29.
In Photograph 1, which was taken by Camera 29, Garda Bourke is partially obscured from Camera 29 by the applicant. Having regard to the manner in which the applicant approached Garda Bourke, as demonstrated from the footage from Camera 1, it would seem probable to me that the photo still immediately prior to Photograph 1 would have depicted a scene in which the applicant was more directly between the camera and Garda Bourke and in all probability, obscuring most of her body. It would be very unlikely, in my view, that in that situation, the still would have revealed any hand movement of the applicant and particularly of the right hand, between the applicant and Garda Bourke.
When one looks at the position of the applicant and Garda Bourke in Photograph 2, it is apparent that the applicant is in a very similar position to that in Photograph 1. It is clear that very little movement on his part has occurred as between Photograph 1 and Photograph 2. Bearing in mind that the front right side of his body, including his arm and, perhaps, right hand, are obscured in both photographs from the camera, there is little reality, in my view, in suggesting that a photograph taken in between these two photographs i.e. a half a second in between, would reveal anything materially different concerning the behaviour of the applicant or his movements.
Garda Bourke is likewise standing in the same position in Photographs 1 and 2, but in Photograph 2, she has pivoted her torso outwards towards the street and presented her left side to the applicant. One cannot see what her left hand is doing because it is obscured from the camera by the applicant’s body. She has raised her right hand to her mouth. Again, having regard to the relatively little change in her body position in between the two photographs, I am not satisfied that a photograph in between at a half a second interval would demonstrate anything materially different. It is quite clear from the photographs that the position of Garda Bourke’s feet and the applicant’s, do not change at all from Photograph 1 to Photograph 2. Also, their position adjacent to the wall or pillar which is immediately beside them, does not change from Photograph 1 to Photograph 2.
Whilst I would readily accept, as is demonstrated in the photographic sequences put in evidence by the applicant, that significant movement can take place in a half a second interval, in this case, having regard to the absence of any significant changes of position on the part of either Garda Bourke, or the applicant, it would seem to me to be highly improbable that there was any significant movement in the time in between these two photographs, or that it would have been captured by Camera 29, bearing in mind the degree of obscuring created by the position occupied by the applicant.
In short, I have come to the conclusion that the two still photographs which the applicant contends are missing would not, in all probability, demonstrate any material changes to the images depicted in Photographs 1 and 2 and would not, in my opinion, be likely to furnish evidence that would impact on the guilt or innocence of the applicant, or that would assist the applicant in his defence. Therefore, I have to come to the conclusion that the absence of these stills does not prejudice a fair trial.”
14. The appellant’s notice of appeal can be fairly summarised as criticising the learned High Court judge for reaching the conclusions which he, in fact, reached. It does not identify any error of law. In essence, it claims that the learned trial judge was incorrect insofar as he failed to make the finding sought by the appellant, namely that the “missing photographic evidence ……was relevant to the determination of guilt or innocence…” It also criticises him for “speculating as to what the missing evidence would or would not have shown.”
15. The respondent submits that the decision of the High Court correctly applied the relevant legal principles to the facts. In particular, the respondent submits that an applicant for this type of relief must show that there has been a failure to seek out or preserve relevant evidence. The learned trial judge was entitled to conclude, it is submitted, that the “missing evidence” did not have a bearing on the guilt or innocence of the appellant.
16. In short, what the appellant seeks from this Court is that it reverse the evaluation by the High Court of the facts of the case.
17. It is important to recall, in all these cases, the basic statement of Finlay C.J. in Z v. The DPP  2 I.R. 465 to the effect that:
“…the onus of proof which is on an accused person who seeks an order prohibiting his trial on the ground that circumstances have occurred which would render it unfair is that he should establish that there is a real risk that by reason of those circumstances (which is that case also was pre-trial publicity) he could not obtain a fair trial.”
18. He went on to impose the further important qualification that:
"… where one speaks of an onus to establish a real risk of an unfair trial it necessarily and inevitably means an unfair trial which cannot be avoided by appropriate rulings and directions on the part of the trial judge. The risk is a real one but the unfairness of trial must be unavoidable unfairness of trial."
19. It follows that the relief of prohibition of a pending criminal trial can only arise exceptionally (see D.C. v DPP  I.L.R.M. 348 per Denham J; McFarlane v DPP  IESC 7, per Kearns J). These were admittedly delay cases. However, I think the same principle must apply. I stated in my dissenting judgment in Dunne v Director of Public Prosecutions  3 I.R. 305 that it would require something exceptional to persuade a court to intervene and prevent a criminal trial from taking place.
20. I made an attempt in my judgment in Savage v Director of Public Prosecutions [ IESC 39] on 3rd July 2008 to summarise the legal principles governing the exercise of this jurisdiction as it has developed in recent years. I did so in the following terms:
a. It is the duty of the prosecution authorities, in particular An Garda Síochána, to preserve and retain all evidence, which comes into their possession, having a bearing or potential bearing on the issue of guilt or innocence of the accused. This duty flows from their unique investigative role as a police force. (Braddish at page 133). The extent to which that duty extends to seeking out evidential material not in the possession of the gardaí does not arise in the present case (but see Dunne);
b. The missing evidence in question must be such as to give rise to a real possibility that, in its absence, the accused will be unable to advance a point material to his defence. This is, like the garda obligation to retain and preserve evidence, to be interpreted in a practical and realistic way and “no remote, theoretical or fanciful possibility will lead to the prohibition of a trial.”(Dunne page 323);
c. The fact that the prosecution intends to rely on evidence independent of the missing evidence at issue in order to establish the guilt of the accused does not preclude the making of an order of prohibition. In Dunne, the prosecution intended to rely on a confession. This did not defeat the applicant’s complaint of the failure of the gardaí to take possession of a video tape covering the scene of the robbery;
d. The application is considered in the context of all the evidence likely to be put forward at the trial. The court will have regard to the extent to which aspects of the prosecution case are contested. In Bowes, the fact that the motor car in which the applicant was alleged to have been travelling had been lost by the gardaí was insufficient, when the applicant did not contest the fact that he was driving it and the charge related to possession of drugs found in the boot of the car. In McGrath, the court had regard to the “circumstantial” character of the prosecution case of dangerous driving. In McFarlane, the existence of photographic evidence of the missing fingerprints was highly material to the complaint that the original items had been lost by the gardaí;
e. The applicant must show, by reference to the case to be made by the prosecution, in effect the book of evidence, how the allegedly missing evidence will affect the fairness of his trial. Hardiman J said in McFarlane (page 144) that:
“In order to demonstrate that risk there is obviously a need for an applicant to engage in a specific way with the evidence actually available so as to make the risk apparent.”
g. The essential question, at all times, is whether there is a real risk of an unfair trial. (Scully page 257). The court should focus on that issue and “not on whose fault it is that the evidence is missing, and what the degree of that fault may be.” (Dunne page 322).
21. I stated that the principal cases were: Murphy v Director of Public Prosecutions  I.L.R.M. 71; Braddish v. Director of Public Prosecutions;  3 I.R. 127; Dunne v Director of Public Prosecutions;  3 I.R.305; Bowes v. Director of Public Prosecutions; McGrath v. Director of Public Prosecutions  2 I.R. 25; Scully v. Director of Public Prosecution;  1 I.R. 242; and McFarlane v. Director of Public Prosecutions  I I.R. 134.
22. Since the delivery of judgment in Savage v DPP, this Court has delivered seven more judgments in “missing evidence” cases. Mr O’Lideadha, Senior Counsel, has cited one on behalf of the appellant. In McHugh v DPP  IESC 15, I delivered a judgment with which Denham and Hardiman JJ agreed. The case concerned an alleged theft from a Lidl store. When the gardaí went to find the CCTV footage, they were provided, not with a copy of the moving footage, which was seen by both the gardaí but with a number of stills. The only evidence against the accused person at his trial was to be his identification by gardaí from their viewing of the CCTV footage which they had seen but which was no longer available, had never been seen on behalf of the defence and would not be available to the defence at trial. This Court was of the view that the still photographs could not assist “in any realistic way” in showing the accused person to be engaging in suspicious a manner. The facts of that case do not remotely resemble those of the present.
23. At this point, on reflection, I wonder whether even that case could not properly have been left on the basis that it would be unfair to admit evidence of identification from unavailable CCTV footage, which would be a matter for the trial judge.
24. As has been emphasised many times, this type of application must be considered in the context of all the evidence likely to put forward at the trial. The key question whether there is a real risk of an unfair trial can not be viewed in vacuo. Evidence is never perfect. Neither the prosecution nor the defence can be assured that all conceivable evidence will be available.
25. In the present case, the overwhelming elements of context are that the appellant, as he apparently admits, behaved in a loud, threatening and disorderly way culminating in a moderately violent physical assault on the garda. All of this appears from the witness statements in the book of evidence, particularly of the female garda herself. It is fully supported by the moving video footage from camera number 1 and by the more limited still photographs from camera number 29.
26. The alleged sexual assault consists of an act which, if it happened as it is described in the statement of the garda, can not have lasted more than a fleeting instant. What is alleged is that the appellant “reached down and tried to grab me between my legs” and that, as he did this “his hand brushed off my thighs.”(emphasis added) The garda’s complaint of sexual assault is based entirely on her own statement. There is no other witness in 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 are: “attempted” and “brushed.” The first represents the opinion of the garda; the second what she felt. It is by no means obvious that any of this would be seen on camera.
27. The Court has seen the moving footage from camera 1. The suggestion made in the Grounding Statement that this video is of poor quality is not born out by the evidence or by inspection. The learned trial judge was correct to say that it shows the entire incident. This Court has also had an opportunity to view it and it is of good quality and clear. The failure to download the footage from camera number 29 resulted from a regrettable error, but it does not follow that the appellant has suffered any prejudice.
28. The evidence surrounding the incident was carefully considered by the learned trial judge. He committed no error of law, nor is any alleged. This Court is simply asked to disagree with his view on the facts. While this case is not covered by the principle in Hay v O’Grady  1 I.R. 210, the appellant must do more than merely ask this Court to look at and disagree with the High Court on the facts. An appellant must demonstrate some error. In my view, there is no basis for disturbing the assessment of the facts by O’Neill J and his conclusions. He analysed the events as shown on the moving footage from camera number 1 in a careful and rational way. He was able to observe the way the appellant moved and concluded that any other images would quite likely have obscured the events further. This is an evaluation of the facts within the jurisdiction of the High Court judge. This Court is not a Court of first instance. The appellant must demonstrate some error in approach.
29. I turn then to consider the complaint regarding the alleged insufficiency of the still photographs.
30. As it happens, there is available a number of stills from camera number 29, although the moving footage from this angle is unavailable. Two of them have figured centrally in the argument. The times at which they occur are 14:48:56 and 14:48:57, an interval of one second. Both show the appellant and the garda standing close together. The learned trial judge has described what they show. I find it impossible to disagree with him.
31. Two points arose in argument. The appellant says that the prosecution may make the case that they show the appellant committing the alleged sexual assault. It is true that Sergeant Brophy, in his affidavit, “submits” that “this picture clearly shows the [appellant’s] hand in the vicinity of the private area of the complainant.” I must say that, on the closest inspection, I cannot see anything of the sort, though the position of the parties is not inconsistent with the occurrence of the act alleged. In any event, the Sergeant is not recorded as making this allegation in his statement in the book of evidence. Most importantly, it is clear that all questions of the admissibility of any such evidence and the weight to be attached to it are quintessentially a matter for the court of trial. This Court cannot express any view on that matter (though I have expressed a purely personal view about what is shown in the photograph). The trial judge has full jurisdiction to rule on any matters such as the admissibility of opinions concerning what the photographs show.
32. Given the availability of the footage from camera number 1 and the stills from camera number 29, I do not believe there is any demonstrated basis for the existence of a real risk of an unfair trial by reason of the absence of the video footage from camera number 29.
33. I turn then to the alleged absence of stills based on half-second intervals. This is, to say the least a highly novel and technical argument. However, it became the principal plank of the appellant’s argument at the hearing of the appeal. Although the original leave order of Peart J did not refer to this matter for the simple reason that it had not been raised at that time, the appellant was permitted to argue it in the High Court.
34. This issue arose in the following way. Sergeant Brophy’s replying affidavit in the judicial review referred to the two still photographs at 14:48:56 and 14:48:57 and made the statement to which I have already referred as to what was, in his view, shown by the first photograph. He then expressed the view that “a one second time lapse between stills is not sufficient time-span within which the [appellant] could do anything with his hands apart from what is visible on the stills.” In response, an affidavit was sworn by Mr Fergal O’Lideadha, an expert in the examination of CCTV footage and related matters. Mr O’Lideadha had not been engaged at the time of the leave application. He expressed his disagreement with the opinion of Sergeant Brophy, stating: “a surprising amount of action can take place within a second.” He described in his report a detailed technical examination which he had undertaken of the still images taken from camera number 29. He said that, for some seconds in the period recorded, two images were recorded within one second and for others only one. His conclusion was that, based on the pattern between the availability of one and two images per second, camera 29 “recorded two images at the alleged crucial second.”
35. Sergeant Brophy, in his replying affidavit, says that he is not in a position to agree or disagree with the image sequence per second deposed to by Mr O’Lideadha. He also says that the stills which are available are ones which he had extracted as part of his initial investigation.
36. The first thing to be said about the complaint of absence of photographs at half-second intervals is that it is completely novel. It posits a level of duty on the gardaí with regard to the preservation of evidence which goes far beyond anything that has occurred before. We have had cases of the destruction of material evidence, such as motor vehicles or their parts (Savage v DPP, cited above; Ludlow v DPP  IESC 54, 31st July 2008; Perry v DPP  58, 31st October 2008  IESC 64, 3rd December 2008; Toohey v DP; O’Driscoll  IESC 23, 24th March 2009]. In some of these cases, proceedings were stopped but by no means all. In Savage, Denham J proposed the adoption of a “best practice” rule where the gardaí are proposing to destroy or dispose of such material. In one case (O’Brien v DPP  IESC, 16th December 2008) proceedings were injuncted when the gardaí had lost a material written contemporaneous note. The first or foundation case in the modern canon is, of course, Braddish v. Director of Public Prosecutions, cited above. In that case, a video allegedly showing the crime in progress and allowing the identification of the perpetrator was unavailable because it had been returned by the gardaí to the owners of the premises; the prosecution intended to rely on a confession. Hardiman J based his judgment on the duty of the gardaí to preserve evidence based on their unique investigative role, but emphasised that the duty must be interpreted realistically on the facts of each case. It did not, he said, impose an obligation on the gardaí to engage in disproportionate commitment of manpower or resources in an exhaustive search for every conceivable kind of evidence. (see page 135 of the judgment). It is a constant that the duty of the gardaí is to be interpreted in a fair and reasonable manner.
37. One must commence from the position alleged by the appellant in his own application, namely that the respondent had failed in his common law duty to preserve evidence. No such failure could be alleged in respect of an entirely unprecedented claim that still photographs should be downloaded for every half-second of the relevant period. That is not a fair or reasonable standard. It is farfetched.
38. In my view, the evidence in this case does not establish any failure by the gardaí in their duty to preserve evidence insofar as the absence of still photographs at half-second intervals is concerned.
39. I am also in agreement with the conclusion of the learned trial judge that the appellant has not discharged the burden of proof of demonstrating that the allegedly missing photographs at half-second intervals would be likely to furnish evidence that would impact on the guilt or innocence of the applicant, still less that there is a real risk that there would be an unfair trial.
40. In short, the decision of the learned trial judge was careful and considered. No serious attempt has been made to demonstrate any error in his approach. The appeal is without merit and I would dismiss it.