Tuesday 21 November 2017

Gardai 'lost or mislaid' vital evidence for trial, Supreme Court hears

CCTV footage of alleged public order offence ‘unavailable’

The Supreme Court in Dublin
The Supreme Court in Dublin

THE Supreme Court has halted the trial of a man on public order offences due to gardai having lost or mislaid video footage of an alleged incident on Dublin's Aston Quay.

The never fully explained unavailability of the "vital"  CCTV evidence - from the gardai's own remotely controlled street cameras - created a real and unavoidable risk of an unfair trial, Mr Justice John Mac Menamin said.

The man was observed on the CCTV monitor when he was alleged to be among a number of people who were kicking a telephone box and various shop windows.

This was a case where prejudice, and therefore risk of unfair trial, was "inevitable", Mr Justice MacMenamin said.

A real risk arose because "vital" evidence was missing and that omission could not conceivably be remedied at trial.

Because there were no eye witnesses, 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.

As a result, the defence would be prevented from relying on evidence which gardai 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 was 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 the alleged incident on Aston Quay in the early hours of March 3, 2009. 

He was arrested after the incident having been allegedly monitored via CCTV.

When the matter was mentioned in the District Court in April 2009, a garda representing the arresting officer 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 usual procedure for storing such evidential material 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 prosecuting 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 Judge refused to halt the trial at that stage. 

The defendant sought judicial review in the High Court and, when that was refused, applied to the Supreme Court.

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