High Court grants prohibition order due to lost CCTV evidence causing unavoidable unfairness in criminal trial.

Neutral Citation: [2015] IEHC 204

THE HIGH COURT

JUDICIAL REVIEW

[2013 No. 971 J.R.]

BETWEEN

VALERIU SIRBU

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of Ms. Justice Baker delivered on the 20th day of March, 2015

1. This is a “missing evidence” case. By order of the 20th December, 2013 Peart J. granted leave to the applicant to apply for an

order of prohibition by way of judicial review restraining further prosecution of the applicant for assault in proceedings currently before

Dublin Circuit Criminal Court entitled the DPP v. Valeriu Sirbu, Bill No. 867/2013, on the grounds that it would be unfair if the trial

proceeded absent the opportunity to view and consider relevant CCTV footage in respect of the incident giving rise to the charge.

2. The grounds on which the leave was granted were that the DPP had failed to preserve materially relevant CCTV footage which was

seen by prosecution witnesses, but was lost soon afterwards, and before the defence had an opportunity to see the footage, have it

examined by an expert or have it enhanced, and that this loss means that the applicant is unable to present a full defence and is

being deprived of potentially exculpatory evidence.

Facts

3. The charge arises from an incident that is alleged to have occurred on the 14th December, 2012 at a Christmas Party at which the

applicant and a work colleague attended. The allegation is that the applicant assaulted his work colleague causing him serious injury

and the charge is brought under s. 3 of the Non Fatal Offences Against the Person Act, 1997. There was no witness to the incident

and the injured party has no recollection of the incident himself. The applicant does not deny that an altercation took place, but says

that the incident arose as a result of his effort to defend himself upon being attacked by his work colleague. The DPP has directed

trial on indictment.

4. The factual basis of this application is straightforward. It is common case that a CCTV camera was positioned and operating in the

location outside the public house where the incident is alleged to have occurred and the Garda Síochána attended at the licensed

premises on the day after the incident and viewed the footage. Two Gardaí viewed the footage, Garda Ciara Geraghty and Garda

Eamonn McFadden. A statement of each is contained in the book of evidence. Two other persons also viewed the CCTV footage on

the following day, the 17th December, they being one Tony Rice, the Finance Director of the company which employed both men, and

Mr Martin McNulty the owner of the licensed premises in which the incident is stated to have occurred. Each of them has given

statements which are contained in the book of evidence.

5. The respondent asserts that Garda Geraghty was told on the 15th December, 2012, the day after the alleged incident, that there

was no risk that the CCTV footage would be immediately deleted or overwritten but when an attempt was made to download the

footage with technical expertise on the 26th December, 2012 it became clear that the footage had been deleted by being overwritten

by later recordings. The Gardaí have given evidence that they made attempts between the 20th December, 2012 and the 24th

December, 2012 to contact the installer of the CCTV with a view to downloading the footage, but could not contact him.

6. One relevant factor is that the day after the incident Gardaí, having interviewed the alleged victim, knew that he had no memory

of the event and also knew that the applicant was asserting that the incident that occurred arose as a result of self defence.

Accordingly, it was clear from the outset of the investigation that the CCTV footage was central to the investigation, and to both

prosecution and defence.

Arguments of Counsel

7. The applicant asserts that the non-availability of the CCTV footage makes it impossible to fully defend the case, and that as there

is no witness to the incident he has been deprived of essential and central evidence of a primary nature which has been lost. He

asserts that the respondent proposes to try him principally on the basis of third party accounts of what they saw on the video

recording and that this would be a breach of fair procedure and that the trial would be unfair if it proceeded on this basis.

8. The respondent asserts that any frailty in the process can be cured by the trial judge and that the jurisprudence of these courts

would suggest that the right to a fair trial is a right of trial in accordance with law, and that that right is more properly preserved and

engaged by permitting the trial to go ahead. It is asserted that the High Court should intervene only in exceptional cases and should

be guided by the first principle of criminal justice, namely that a person is entitled to be tried in accordance with law. It is asserted

that the applicant can assert a defence of self defence at trial and there is no risk of an unfair trial, particularly as the judge can rule

out the secondary evidence in the form of commentary on the CCTV footage.

9. The applicant says that there is a real risk of an unfair trial that is neither remote nor fanciful and, while the trial judge can rule out

secondary evidence, the injustice has already crystallised in that the applicant has lost the benefit of having the footage to support

his preparation for trial and to also deal with his very specific defence to the charge. It is pointed out that there is no secondary

evidence in the form of photo stills or other witnesses. It is asserted further that in total four witnesses have seen the CCTV footage

and that this puts the applicant at a distinct disadvantage.

The Law

10. The law on missing evidence may briefly be stated. The High Court will prohibit a trial if an accused can show there is a real risk of

an unavoidably unfair trial. This principle has resulted in complex and finely argued judgments of the High Court and the Supreme

Court in the last number of years. The starting point was the judgement of Braddish v. DPP [2001] 3 I.R. 127 and in that case the

Supreme Court identified the basis of the rule as the obligation on the Gardaí to seek out and preserve all evidence having a bearing

or potential bearing on the guilt or innocence of an accused. This duty arises from the unique investigative role of the Gardaí and as

Hardiman J. stated at p. 133:-

“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.”

11. Hardiman J. noted at p. 135 with regard to CCTV footage that it would be difficult to think of “evidence more directly relevant

than a purported video tape showing the commission of the crime.”

12. The applicant relies on this general statement of law with regard both to the importance of the CCTV footage itself, and the duty

of the Gardaí to preserve the CCTV footage which it is asserted was not done in this case.

An exceptional remedy

13. It is well established that the remedy of prohibition in a lost evidence case is exceptional. O’Donnell J. in Byrne v DPP [2010] IESC

54 stated:

“In my view, having considered the decided cases, the position has now been reached where it can be said that other

than perhaps the very straight forward type of Braddish case, it would now require something exceptional to persuade a

court to prohibit a trial.”

14. The Supreme Court has made it clear on a number of occasions and most recently in the case of Kearns v. DPP [2015] IESC 23

that for the High Court to intervene and prevent a trial by way of an order of prohibition is an exceptional remedy and one that is

made very rarely. The reason for this is that the constitutional protection of the rights of an accused, and which is founded on the

presumption of innocence, is a protection in the context of the right of an accused to a fair trial by a judge and/or a judge sitting

with a jury as the case may be. The constitutional protection of the accused, and the presumption of innocence, do not mandate

High Court interference with the trial process, nor that the High Court should second guess either the trial judge or the jury in the

assessment of the evidence and the decision on the credibility and weight of such evidence in the course of a hearing.

15. A number of judgments have followed on from the judgment of the Braddish v. DPP and one factor that can be gleaned from these

cases is the extent to which the courts regard the individual factors in a case as central to its decision.

16. The Supreme Court has fully considered the principles applicable in the recent case of Wall v. DPP [2013] IESC 56. Denham C.J.

set out the principles that should be applied in lost evidence cases which she had already identified and reviewed in an earlier case of

Savage v. DPP [2008] IESC 39. The principles which she identified in ten numbered paragraphs bear repeating:-

“(i) each case should be determined on its own circumstances;

(ii) it is the court’s duty to protect due process;

(iii) it is the duty of An Garda Síochána to preserve and disclose material evidence;

(iv) this duty to preserve and disclose material evidence is to do so as far as is necessary and practicable;

(v) the duty to disclose and preserve, as qualified by Lynch J. in Murphy v. Director of Public Prosecutions [1989]

I.L.R.M. 71 cannot be precisely defined as it is dependent on all the circumstances of the case;

(vi) the duty does not require the gardaí to engage in a disproportionate commitment of manpower and resources;

(vii) in the alternative to keeping large physical objects as evidence, such as motor vehicles, it may be reasonable in

certain circumstances for the gardaí to have a forensic report on the object;

(viii) the duty should be interpreted in a practical manner on the facts of the case;

(ix) if evidence is destroyed the reason for the destruction, whether bona fide or mala fide , is part of the matrix of the

facts, but it is not a relevant factor in the test to be applied by the court;

(x) all of the above are subject to the fundamental test to be applied by the court, that of “real risk” as described by

Finlay C.J. in Z. v. Director of Public Prosecutions [1994] 2 I.R. 476 at p. 506”.

17. As Hardiman J. stated in McFarlane v. DPP [2006] IESC 11, a case concerning finger prints of which photographs were available,

when an “independent comparison” in the form of photographs was available the fact that the primary evidence is lost would not of

itself mean that the trial would be stopped.

18. Clarke J. in that case made the point that a “decent piece of CCTV footage” can make the task both of the judge and jury, and

one might extrapolate from this the task of the defence and prosecution, much easier, but he pointed out that the mere absence of

CCTV footage due to happenstance could not of itself mean that a trial ought to be stopped, or because an accused could not get a

fair trial. The starting point is fairness, and an applicant has to show unfairness, what he described as “the unfairness of a person

being tried in the absence of evidence which ought to be available.”

19. To satisfy the test, then, an applicant must show unfairness arising from the absence of evidence which ought to be available

and that the unfairness cannot be avoided. This is not to say that if it can be shown that the Gardaí were at fault in not preserving

or seeking out evidence that a trial must be stopped merely on that account, but only if it can be shown that the evidence which

was not preserved or sought out was important to the extent that it ought to have been available in order to ensure fairness.

20. McMenamin J. in Stirling v. DPP [2014] IESC 13 further elucidated the question in describing the relevant material as being that

“plainly within the reasonably scope of the investigation”. In that case CCTV had allegedly captured the applicant in the commission

of an offence but the CCTV footage was lost. The DPP sought to rely on the evidence of the Garda who had viewed the footage but

the Supreme Court prohibited the prosecution. McMenamin J. stated the following point of principle:-

“This is not just a case where prejudice and, therefore, risk is probable, but rather it is inevitable. The entire essence of

the prosecution and defence must be identification; the only objective verifying evidence has become lost through

neglect and failure to preserve the material. None of the ‘list’ of issues identified by counsel for the appellant, set out

earlier in the judgment, can, therefore, be properly pursued at trial. Instead, a District Court judge will, inevitably, be

faced with a procedural impasse; the reliability of the main witness as to fact cannot be tested in the most obvious

way. The defence will be prevented from relying on evidence, which it was the duty of the gardaí, not only to preserve,

but to make available both to the defence and to the court (see Braddish, and the other authorities to that effect cited

in Wall). To the extent that the precept of continuity applies, it must, in this exceptional instance, yield to the

vindication of the appellant’s constitutional right to a fair trial in the circumstances where the trial simply should not

proceed. This is because a main building-block of the case, material plainly within the reasonable scope of the

investigation, has been lost by the prosecution.”

Discussion

21. It seems to me that the judgment of McMenamin J. in Stirling v. DPP is very much on point. In this case there is no primary

evidence for the prosecution save the evidence of the persons who viewed the now lost CCTV footage. As in Braddish v. DPP and

Ludlow v. DPP [2008] IESC 54, the missing evidence is central to the case.

22. The accused identified his defence early, and admitted that he hit his workmate. He engaged with the specifics, and this

application cannot be criticised and cannot be said to be opportunistic as occurred in Byrne v. DPP. The Gardaí knew the day after

the incident that there were no witnesses to the incident and that the CCTV footage would not just be important but central to the

prosecution and defence cases. The evidence now available is secondary to lost and important primary evidence where there is no

other objectively ascertainable means of establishing the veracity of the secondary evidence, such as might be the case were there

to be available stills, as in McFarlane v. DPP where there was objectively verifiable and preserved evidence in the form of photographs

of fingerprints which were available and objectively speaking suitable for the purposes of comparison.

23. Counsel for the DPP argues that it is possible to distinguish Stirling v. DPP and Wall v. DPP in that the only evidence in those cases

was the CCTV footage and it was on that basis that the prosecution was prohibited. The only building block in that case was that

evidence and accordingly it was intrinsically unfair to allow the prosecution to proceed. It is argued that there is other evidence here,

albeit that it is evidence of an exculpatory statement.

24. It must be noted in that context that the courts have on many occasions expressed their disquiet in convicting on the basis of an

uncorroborated statement only. In essence the only building block other than the evidence of those who viewed the CCTV footage in

this case is an uncorroborated statement of Mr Sirbu which itself does not admit an offence but admits the incident. The evidence

that is available to the prosecution in this case is the evidence of two Gardaí and two other lay witnesses who viewed the CCTV

footage before it was destroyed. They to some extent might be seen as a class of bystander, or persons who could give evidence

similar to or equivalent to eye witness accounts. The question for me is whether allowing that evidence to be given creates an

unfairness to the accused.

25. An opportunity has been lost to enable the applicant himself to view the CCTV footage for the purposes of the preparation of his

defence, and indeed I accept the argument made on his behalf that he has lost the opportunity to have the assistance of an expert

to enhance, analyse or otherwise examine the footage for the purposes of preparing his defence. The applicant has engaged with the

evidence and admits that he hit his work colleague, and he has given a cautioned statement in which he so admits the incident, but

says, however, that the incident arose wholly as a result of his efforts to defend himself and that his work colleague struck or

attempted to strike first.

26. The answer will come down to the way in which this evidence may be tested by the accused in cross examination. The accused is

not in a position where either he or any person who acts for him, or any person who might give evidence on his behalf, has seen the

CCTV footage, so he is it seems to me hampered in the cross examination of the evidence of those persons who did see the footage,

he may not challenge them as to precisely what they saw in the footage, and he may not challenge their recollection of the footage

as there is no objectively verifiable means by which the accused may ascertain what was visible or what ought to have been visible

on that footage. The prosecution will have an advantage in being able to give evidence of what was seen on the CCTV footage, and I

consider that this does create an unfair disadvantage because there is no means by which the accused may challenge or test the

evidence of the persons who saw the footage. Had there been other eye witnesses who actually witnessed the incident, his or her

evidence could be used as a basis of testing of the prosecution witnesses, but none such exists.

27. Another factor that weighs on my mind is the fact that there is some dispute between the evidence on affidavit before me as to

the quality of the CCTV footage. Mr McNulty, the owner of the bar, says that the quality was poor, and Mr Rice, the financial director

of the company which employed both men, says the quality was good. The quality of the picture seen on the CCTV footage might

have given scope for cross examination of the witnesses who saw the footage, but the accused may not prepare such cross

examination with the benefit of any knowledge of the condition of the picture and whether it was a good or blurred image. Thus the

evidence was what was seen on the CCTV may not properly be tested with regard to its quality, although I accept that the credibility

of the witnesses as to their recollection of that quality may be tested.

28. The lost evidence here may be advantageous to either the applicant, the accused, or to the DPP. It is not my function to

speculate or extrapolate from what is said in the affidavits as to whether the evidence will benefit one or other side or whether it is

more likely than not to lead to an acquittal or conviction. The limit of my focus is whether there is a possible unfairness in the

advantage that one side might gain from the fact that the evidence is missing, and I consider that there is a possible unfairness

arising in the circumstances.

Is the unfairness unavoidable?

29. The Supreme Court has confirmed in Kearns v. DPP that the test of whether the fairness is likely is that unfairness be unavoidable.

If fairness can be avoided by directions at the trial, or by the trial judge after considering argument in the course of the trial refusing

to admit certain evidence, then the High Court ought not to intervene with the trial process and its likely course.

30. I do not consider that the unfairness that arises in this case can be dealt with by the trial judge by giving directions or excluding

certain evidence. This is because the unfairness arises at the very root of the prosecution case, and the prosecution have, as a

result of being able to proffer witnesses who have seen the CCTV footage, gained an advantage in respect of which the defence may

not redress the balance, by seeking to test the evidence by cross examination.

31. CCTV footage is evidence which may of itself be determinative of an issue in a trial, and it takes the form of evidence which has

become frozen or crystallised in time and is not subject to the frailty of memory which may be influenced or flavoured by the emotion

of the moment, or the colouring of later recollection.

32. The prosecution witnesses who have seen the CCTV footage will be able to offer secondary evidence of viewing the incident on

CCTV after it was known a man was hospitalised as a result of an incident and where the footage was seen away from the heat of

the moment, and the tendering of that evidence without any objective or independent means by which the accused may test it,

leaves the accused in an unavoidable position of having an evidential deficit where his own memory now two years after the event is

undoubtedly tempered by the passage of time, the fact that he admits to have been drinking on the evening in question, the fact

that he will in his attempts to recollect the incident have telescoped or erased some of his recollection. This means that his memory

of the event is potentially more fragile and less robust than that which might be tendered by the prosecution witnesses from the

CCTV footage That particular imbalance or frailty is such that in my view it cannot be resolved by any directions given by the trial

judge or the exclusion by him or her of any evidence on behalf of the prosecution.

33. Whatever way the question is posed a disadvantage arises in regard to one or other of the parties. That disadvantage is of itself

an unfairness which is of a sufficient degree to justify me in making an order, admittedly one that is made in exceptional

circumstances, to prevent this trial proceeding. The circumstances of this case are highly unusual, and a more modern CCTV footage

does not get deleted, not is it usual that one party to a trial has viewed footage that is no longer available in either primary or

secondary form to the other side, and where no witnesses of the incident are available to the incident in respect of which the charge

is brought.

34. Accordingly, I make an order of prohibition by way of judicial review restraining further prosecution of the applicant in the form of

paragraph (ii) in the amended statement of grounds.