The
Supreme Court
has halted the trial of a man on public order offences due to gardaí
having lost or mislaid, “in circumstances never fully explained”, CCTV footage of the alleged incident on Dublin’s Aston Quay.
The unavailability of the "vital" CCTV evidence created a real and unavoidable risk of an unfair trial, Mr Justice John Mac Menamin said.
This was a case where prejudice, and therefore risk of unfair trial, was "inevitable", he said. The real risk arose because "vital" evidence was missing and that omission could not conceivably be remedied at trial. Because there were no eyewitnesses, the issue of identification was central but the only objective verifying evidence in that regard had been lost through neglect and failure to preserve it.
Duty to preserve
As a result, the defence would be prevented from relying on evidence that gardaí had a duty to preserve and make available to the court and defence.
The court, while normally reluctant to deal with an application for judicial review made during a trial, would, in the exceptional circumstances of this case, grant the relief sought, he said. Maintaining the integrity and unity of a trial process is fundamental in the administration of justice, and once a trial begins, that precept of uninterrupted continuity applies, he said. However, no less important is the fundamental legal principle that an accused must not be tried where there is a real and unavoidable risk of an unfair trial.
The judge, with whom Ms Justice Mary Laffoy and Ms Justice Elizabeth Dunne agreed, was giving the court's judgment allowing the appeal by the man against the High Court's refusal of judicial review. The man had denied charges of criminal damage and public order offences related to an alleged incident on Aston Quay in the early hours of March 3rd, 2009. He was arrested after he was alleged to be among a number of people observed by a garda, via CCTV, kicking a telephone box and shop windows.
Arresting garda
When the matter was mentioned in the District Court in April 2009, a garda representing the arresting garda told the judge CCTV footage was available, but five weeks later the defendant's solicitor was told the taped material was no longer available. When the case came before the District Court in June 2009, the prosecuting garda told the court the procedure for storing such evidence at Pearse Street Garda station involved a process whereby anyone removing such material "signed it out", but this tape had been removed without any signature. The garda said he could not be entirely sure why but assumed it had been taken by another garda investigating another matter.
The defence later argued the trial should not proceed due to the missing evidence but the District Court judge refused to halt the trial. The defendant sought a judicial review in the High Court and, when that was refused, applied to the Supreme Court.
