IESC 45
THE SUPREME COURT
THE DIRECTOR OF PUBLIC PROSECUTIONS and HIS HONOUR JUDGE HAUGH
RespondentsJUDGMENT of Mr. Justice Hardiman delivered the 18th day of 1May, 2001.
1. On the 2nd July, 1997 a robbery took place in a shop in Limerick. The premises were protected by video surveillance and it appears from the statements exhibited in the affidavits herein that a Detective Garda O’Neill viewed the video tape. He believed that the video tape showed the robbery in progress and that the Appellant was the person shown committing it. On this basis he arrested the Appellant on the 14th October, 1997. The Appellant was detained pursuant to Section 4 of the Criminal Justice Act, 1984. During his detention, which was extended pursuant to the Act, the Appellant is alleged to have made and signed a statement admitting to the robbery.
2. The Appellant was released from custody on the 14th October, 1997. He was not charged with the robbery until the 2nd July, 1998, a period of approximately nine months. It is alleged by the Appellant, and doubted but not expressly denied by the first-named Respondent, that on the first appearance in the District Court the Appellant’s then Solicitor requested any signed statements, any video footage and any stills of such video footage.
3. This request was subsequently repeated in correspondence in December 1998. Finally, in January 1999, the Appellant’s then Solicitor was told in correspondence:-
“In relation to the videos these are no longer available as they were returned to the owners after the accused admitted the crime”.
4. A further issue arose in relation to the investigation of this offence. The Appellant avers that he was asked to take part in an identification parade while in custody, and that he agreed to do so. This is consistent with the Statement of Evidence of Superintendent Patrick O’Boyle, who was asked to extend the Appellant’s detention. He said:-
5. However, no identification parade was in fact held. Moreover, in one of his affidavits sworn in these proceedings Detective Garda O’Neill states that “The applicant was never asked to stand in an identification parade” and “at no stage, in whole or in part, was the said authorisation (i.e. the authorisation to further detain) sought to obtain an identification parade”.
“The direction to further detain the prisoner was granted following a request from and a discussion with Sergeant D. Gaffney, member in charge at Henry Street Garda Station. Sergeant Gaffney outlined the circumstances to me. I based my decision to extend the detention on the following grounds which I considered reasonable i.e. the further questioning of the prisoner was necessary. Further enquires had to be carried out and the holding of an identification parade which was being organised had to be carried out”.
6. The Appellant was tried in the Limerick Circuit Criminal Court, commencing on the 24th March, 1999. This trial ended in a disagreement of the jury. On the hearing of this appeal, neither side had any information as to what happened in the course of the first trial.
7. A retrial took place on the 20th April, 1999 before His Honour Judge Haugh and a jury. On this trial, objection was taken to the introduction in evidence of stills which had been made from the video tape while it was in the possession of the Gardaí. The learned trial judge excluded the stills from evidence on the basis that it was unfair to produce them when the video film from which they had been taken was not available. Subsequent to this, Counsel for the Appellant cross examined Detective Garda O’Neill about the circumstances in which the video tape became unavailable. The learned trial judge thereupon discharged the jury. It was frankly stated to this Court by Mr. Blaise O’Carroll S.C. on behalf of the Appellant that this was done because the learned Judge was concerned that the disclosure of the fact that there had been video evidence might be unfair to the accused.
Judicial Review Proceedings.
8. On the 14th June, 1999 the Appellant was granted leave to seek judicial review. He sought to restrain the further prosecution of the indictment preferred against him on the grounds that:-
9. Shortly before the hearing in the High Court Detective Garda O’Neill filed a further affidavit in which he stated that the video was returned to the owner of the shop where the robbery took place “mistakenly on an unknown date between......... the 3rd July, 1998 and the 23rd December, 1998 when Mr. Murray raised queries with the Gardaí regarding the video and other matters enquired into by the Defence”.
“(1) The Applicant cannot have a fair trial in due course of law and according to law as is required by the provisions of Article 38.1 and Article 40.4.1 of the Constitution of Ireland because the first-named Respondent herein has failed refused and/or neglected to furnish to the Applicant’s legal advisers copies of and/or an opportunity to inspect the originals of (a) original still photographs, (b) video.”
10. It will be seen that the issue raised by the Appellant is a net one. Does the fact that the video tape is unavailable because the Guards parted with possession of it require in the circumstances that the further prosecution of the Appellant be restrained? In addressing this issue it is important to recall that the video allegedly shows the crime in progress and allows the identification of the perpetrator. No other identification evidence was apparently available and no person was asked to see if he or she could identify the Appellant even though it appears from the papers that there was at least one eye witness to the robbery.
The High Court Order.
11. In a very detailed judgment delivered the 21st December, 2000 O’Caoimh J. refused the relief sought. He did so on the basis that the prosecution case was not one relying on visual identification itself, but one which rested on the statement alleged to have been made by the Appellant when arrested by the Gardaí. He observed however that if the prosecution were to rely on the photographic stills, a real problem would exist because the Appellant would be deprived of his opportunity of testing the evidence as the video tape was missing. He stated that he was influenced by the fact that the written request for the videos was not made until about eighteen months after the Appellant had been arrested. The learned judge held that he could not conclude that if a timely application had been made, the Appellant would have been deprived of an opportunity of viewing the video evidence. The learned judge also held that the Appellant had not moved promptly for relief by way of judicial review.
Entitlement to items of evidence.
12. It is well established that evidence relevant to guilt or innocence must, so far as necessary and practicable, be kept until the conclusion of a trial. This principle also applies to the preservation of articles which may give rise to the reasonable possibility of securing relevant evidence.
13. These propositions were established in the judgment of Lynch J. in Robert Murphy v. DPP  ILRM 71. In his judgment the learned judge surveys authorities going back well over a century. These include the judgment of Palles CB in Dillon v. O’Brien and Davies  20 LRIR 300. There, the learned Chief Baron said:-
14. In Murphy’s case, the Applicant had been charged with stealing a car and driving offences. The car was in the possession of the Guards and the Applicant’s Solicitor had made clear his wish to inspect and test the car, notably for finger print evidence, at an early stage. Nevertheless, the Guards parted with the car without either examining it forensically themselves or notifying the Applicant’s Solicitor that they intended to part with it. Lynch J. held that their action “in the circumstances amounted to a breach of the rule of fair procedures”. This was so even though it had not and could not be established that the Applicant would in fact have found anything of evidential use on an examination of the car. The learned judge held that “The Applicant has been deprived of the reasonable possibility of rebutting the evidence proffered against him. It is also clear that there is no way in which this loss to the Applicant of possibly corroborative evidence can now be remedied by any further inspection of the car”.
“The interest of the State in the person charged to being brought to trial in due course necessarily extends as well to the preservation of material evidence of his guilt or innocence as to his custody for the purpose of the trial.”
15. The learned judge concluded:-
16. I would respectfully concur with the judgment of Lynch J. and with the authorities which he cites.
“The authorities established that evidence relevant to guilt or innocence must so far as is necessary and practicable be kept until the conclusion of the trial. These authorities also apply to the preservation of articles which may give rise to the reasonable possibility of securing relevant evidence.”
The Respondent’s Answer.
17. The first-named Respondent, however, states that in the present case the video tape is not of evidential use. Firstly (and the learned High Court judge was obviously impressed by this point) the case is not being put forward on the basis of identification either of the Appellant or of a video of the perpetrator. It is being advanced solely on the basis of the alleged inculpatory statement.
18. If anyone is at a loss because the video tape is missing, it was submitted, it is the prosecution. The video has no actual or potential use to the Defendant and its absence is not a ground for affording him any relief.
19. In the criminal trial for this robbery, the Appellant is pleading not guilty despite the alleged existence of an inculpatory statement signed by him. This statement was allegedly made while he was in garda custody after an arrest allegedly based wholly on the video tape evidence. If the Appellant wished to object to the statement on the basis of the illegality of his detention it is difficult to see how he could do so unless he could show that the ground put forward for his arrest did not in fact support it and could not reasonably be supposed to do so. This seems impossible to do without the video tape. The stills, certainly in the form of which they were presented to this Court are quite useless for identification purposes.
20. More fundamentally, this is a video tape which purports actually to show the robbery in progress. It is not acceptable, in my view, to excuse the absence of so vital and direct a piece of evidence simply by saying that the prosecution are not relying on it, but prefer to rely on an alleged confession. Firstly, the confession is hotly disputed. Secondly, a confession should if possible be corroborated and relatively recent history both here and in the neighbouring jurisdiction has unfortunate examples of the risks of excessive reliance on confession evidence. Thirdly the video tape has a clear potential to exculpate as well as to inculpate.
21. This video tape was real evidence and the Gardaí were not entitled to dispose of it before the trial. It is now admitted that they should not have done so. Lest however the sentence already quoted from the State Solicitor’s letter (and which can only have been based on his instructions from the Gardaí) can be read to suggest that because the prosecution was based wholly on an alleged confession, other items of evidence can be destroyed or rendered unavailable, I wish to state emphatically that this is not so. 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 is so whether the prosecution proposes to rely on the evidence or not, and regardless of whether it assists the case the prosecution is advancing or not.
22. The evidence leading to the identification of a suspect often differs greatly from the evidence in the ensuing prosecution. This may be because the former would be quite inadmissible, such as anonymous information, or because the evidence is cogent enough to suggest a suspect or a course of investigation, but not nearly cogent enough to prove the guilt of any particular person. There are other possible explanations for the prosecution’s unwillingness to deploy in evidence material which was used in the investigation. But the fact that such material is not used can never justify its destruction or unavailability, or the destruction of notes or records about it. This is because a particular fact or piece of real evidence which it would be irrelevant or counter productive for the prosecution to deploy may (perhaps for that very reason) be very useful to the defence. It must therefore be preserved and disclosed. The prosecution are not entitled to take the view that once they have better evidence, or evidence more convenient to them to deploy, they are entitled to destroy the evidence which came first to hand. They are not entitled to say, for instance, “This is a confession case; we will stand or fall on the confession and are therefore entitled to ignore the video tape”.
23. It is important to bear in mind that the evidential items to which the foregoing applies are not only those with a direct and established evidential significance but include those which, in the words of Lynch J., “may give rise to the reasonable possibility of securing relevant evidence”. In assessing whether this criterion is met it is useful to bear in mind what was said in the leading Irish authority on Discovery as to the scope of the material which must be discovered to the other side. In Sterling-Winthrop Group Ltd. v. Fabenfabriken Bayer A-G  IR 97, dealing exclusively with the question of documents, the Court held that the documents to be produced on discovery were not confined to those which would be evidence either to prove or disprove any matter in question in the action, but extended to:-
The same principles apply to evidential materials other than documents.
“Every document relating to the matters in question in the action, which not only would be evidence upon any issue, but which, is it is reasonable to suppose, contains information which may - not which must - enable the party requiring the affidavit to advance his own case or to damage the case of his adversary......” (Emphasis in original)
24. In the context of a criminal case it is of particular importance to draw attention to the last phrase in the extract, relating to material with the capacity to damage the case of an adversary. Moreover, a member of the Garda Síochána is not entitled to dispose of evidence, or omit to disclose it, simply because he personally has formed the view that it will not be helpful. Thus, in this case, Detective Garda O’Neill was clearly of the opinion that the video tape identified the Appellant. If this is indeed so, it is difficult to understand why it had not been retained and deployed in evidence. But in dealing with a matter as notoriously subjective as identification and the level of confidence one feels in it, I believe that the opinion of a garda as to who is identified could never be a reason for not preserving and disclosing the video tape.
25. The learned High Court Judge was also influenced by the fact that no written request for the video tape was made for almost eighteen months after the Applicant’s arrest. However, the Applicant was not charged until some nine months after his arrest and the written request was made some five months after he was charged. Furthermore, there is no reason in my view to focus exclusively on a written request for the video tape when there is uncontradicted evidence that an oral request for it was made in Court on the very day the Applicant was charged, the 2nd July, 1998. There is no doubt that the video tape was then available because Detective Garda O’Neill deposes to the fact that the stills were made the following day. Nor is there any basis, in my view, for holding it against the Appellant that he did not request the video evidence before he was charged. It is not clear to me that the prosecuting authorities are obliged in ordinary circumstances to give items of real evidence to a person who is not charged with an offence.
26. The foregoing remarks arise in the specific context of this case and the arguments raised in it. It would be difficult to think of evidence more directly relevant than a purported video tape showing the commission of the crime. But in cases where the evidence is not of such direct and manifest relevance, the duty to preserve and disclose has to be interpreted in a fair and reasonable manner. It must be recalled that, in the words of Lynch J., the duty to preserve evidence is to do so “so far as is necessary and practicable”. A duty so qualified cannot be precisely or exhaustively defined in words of general application. Certainly, it cannot be interpreted as requiring the Gardaí to engage in disproportionate commitment of man power or resources in an exhaustive search for every conceivable kind of evidence. The duty must be interpreted realistically on the facts of each case”.
Delay in seeking leave to apply for judicial review.
27. The Applicant applied for leave to seek judicial review about 4½ months after it had been confirmed to him that the video tape no longer existed and something under two months after the conclusion of his second trial. At that trial, the jury had been discharged after the Appellant’s Counsel had sought to canvass in cross-examination the circumstances in which the video tape had ceased to be available. While the learned trial judge took this step out of solicitude for the Appellant, I consider that the latter was entitled to canvass the question if he wished notwithstanding the obvious risks of doing so. I do not consider that his action in seeking to do so disentitles him to apply for judicial review. Moreover, having regard to what I consider the very important question of the prosecutions obligation to preserve evidence having an actual or potential bearing on guilt or innocence, I would not be disposed to deny the Appellant relief on this ground.
28. I would reverse the order of the learned High Court judge and grant the Applicant the order he seeks against the first-named Respondent restraining him for further prosecuting the Applicant on Bill No. 37/1998, County of Limerick, on the basis of the non-availability of the video tape due to the action of the Gardaí.