Supreme Court allows appeal where missing CCTV footage creates a real risk to trial fairness regarding identification evidence.

THE SUPREME COURT

No. 492 of 2006

Denham J.

Hardiman J.

Fennelly J.

BETWEEN/

DONAL MCHUGH

Respondent/Applicant

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

Appellant/Respondent

JUDGMENT of Mr. Justice Fennelly delivered the 24th day of February, 2009.

1. The Respondent obtained an order in the High Court, pursuant to the ex tempore judgment of Quirke J, prohibiting his

trial on a charge of stealing a leather jacket from a Lidl supermarket in Ballinasloe. The original CCTV footage has been

obliterated. It is a “missing evidence” case.

2. The Director of Public Prosecutions (“the Director”) appeals against the judgment of the High Court.

3. The events took place in the Lidl store on 30th September 2005 shortly after 6:30 pm. There are statements from the

Store Manager, Mr Stephen McGrath, and the security guard, Mr James Valance. There were leather jackets on sale at

€99.99. Mr Valance was suspicious of the movements and behaviour of two individuals, apparently shopping in the store,

one a man in his forties or fifties (suspected to be the respondent) and the other a teenager in his company. They made

inquiries about the leather jackets. Mr Valance soon found that a jacket was missing. He checked with various customers

and with the check-out staff. None had been sold.

4. Mr Valance got Mr McGrath to check the CCTV. When they inspected the recorded CCTV footage, Mr Valance

observed the same two males: the elder one had removed his top, had put on the leather jacket and put back on his top over

it. Having seen the recording, he went outside with Mr McGrath. He saw the older man at a black car. Mr McGrath says

that he saw one of the leather jackets on the front passenger seat. They approached the man and invited him back in on the

pretext of his having been overcharged for something. They did not take possession of the jacket.

5. The elder man was the respondent. He made no admissions at any time. Members of An Garda Síochána were called to

the store. In the company of the manager they watched the CCTV recording. An Garda Síochána could not take possession

of the hard disk of the CCTV system. Garda John Costello asked the manager to burn a copy of the material seen by An

Garda Síochána onto a compact disk. That request was complied with only insofar as five still photographs were put on a

computer disk (CD), which was given to the gardaí.

6. The only other evidence of possible relevance is of the gardaí asking the respondent to have the jacket returned and of his

phoning such a request to somebody on his mobile phone.

7. The respondent was charged. The book of evidence was served and he was duly returned for trial. Statements in the

book also referred to the transactions between the gardaí and the Lidl management whereby the CCTV footage was copied.

8. The respondent’s solicitor wrote to the State Solicitor a number of times from February to April 2006 seeking disclosure

of relevant material and, in particular a copy of the “CCTV footage recording of incident.”. The State Solicitor phoned in

May to say that the CCTV footage was unavailable “by reason of having been destroyed.”

9. The key relevant facts are that there was a digital form of CCTV surveillance in operation in Lidl. When the gardaí went

to obtain copies for the purposes of the prosecution, they were informed, reasonably enough, that they could not take

possession of the hard drive. However, in response to the request for a copy, they were provided, not with a copy of the

moving footage recorded and seen by both the gardaí and the Lidl personnel, but with a CD which consisted of the five still

photographs already mentioned. The original footage is routinely destroyed after thirty days and was not available when the

Respondent’s solicitor asked for what he called the “CCTV coverage.”

10. The basis on which the judicial review procedures have been conducted has, to say the least, been unclear. Ultimately,

the Director asked the Court to receive in evidence copies of the still photographs printed from the CD received by the

gardaí. The Court agreed to do so without prejudice to the procedural correctness of the steps taken to date.

11. Ultimately, the Court has agreed to consider the entire matter on the basis that the sole issue is whether the Respondent

has established that, in the absence of any possibility of access to the original moving CCTV footage, there is a real risk that

he will not have an unfair trial. No other point is now raised. The Director does not contest the correctness of the basis on

which judicial review was sought. Nor does he dispute—and the Court does not decide -- that the gardaí should have sought

the original CCTV footage. He contests the case only on the basis that the Respondent has not demonstrated that there is a

real risk to the fairness of his trial.

12. On the basis of the very limited scope of the argument thus delineated, I have no doubt that the Respondent is entitled to

succeed. The essence of the case against the Respondent is his identification on the CCTV footage. Any other evidence

available to the prosecution is minor or peripheral and of no consequence compared to that central evidence.

13. If the case were to go to trial, the prosecution would be relying on unusual evidence of identification. The two Lidl

witnesses and one garda would, according to the book of evidence, swear that they had seen and identified the Respondent,

not directly, not by their own unaided vision, but as recorded on the CCTV footage, which is now unavailable. The key

allegation is that the Respondent took the leather jacket by putting it on and concealing it under an outer garment and thus

left the store without paying.

14. The evidence is to be based on the account by three witnesses of their inspection of the CCTV footage. The

Respondent or his representatives will not have, and never have had, any access to that footage. The Court has had an

opportunity to inspect the five still photographs. They do not enable an observer, in any realistic way, to conclude that the

respondent engaged in the activity described by the witnesses, which is crucial to the prosecution case, whereby it is alleged

that the jacket was concealed under the respondent’s outer garment.

15. This problem was in the background in the case of Braddish v Director of Public Prosecutions [2001] 3 I.R. 127. The

report of that case discloses that before His Honour Judge Haugh, as he then was, in the Circuit Court, 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

and that the learned 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. (see page 130 of the report). Further, on the hearing of the

application for judicial review in the High Court, O’Caoimh J observed “that if the prosecution were to rely on the photographic

stills, a real problem would exist because the applicant would be deprived of his opportunity of testing the evidence as the video tape was

missing.”See page 131).

16. The Court cannot, on an application of this type, rule in advance on the admissibility of the unusual type of identification

evidence to be proffered by the prosecution. It can only say whether there is a real risk to the fairness of the trial in

circumstances where the original footage is not made available on an equal basis to prosecution and defence. It seems to me

that there is such a risk in the very particular circumstances of this case. The defence is simply unable to test the

identification evidence of the state witnesses. This does not mean that still photographs taken from a missing video are

generally inadmissible. All depends on the particular facts.

17. In these circumstances, I would dismiss the appeal and affirm the order of the High Court.