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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Corbally v. McCartan [2003] IEHC 107 (9 December 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/107.html Cite as: [2003] IEHC 107

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THE HIGH COURT

Judicial Review 2002 No 194 JR

BETWEEN

PAUL CORBALLY

APPLICANT

AND HIS HONOUR PATRICK McCARTAN

RESPONDENT

AND THE DIRECTOR OF PUBLIC PROSECUTIONS

NOTICE PARTY

JUDGMENT of Mr. Justice Gilligan delivered on the 9^th day of December, 2003.

On the 17^th day of June, 2002 Murphy J. granted the applicant leave to apply by way of judicial review for:

(1) An order of certiorari of the decision of the learned trial judge refusing an application for an order that he should direct the jury to find the accused not guilty of the charges (preferred against him).

(2) An order of certiorari of the orders of the Circuit Court of the 17^th January, 2002 wherein the jury held that the accused was guilty on Count 2 and such ancillary orders as followed concerning sentence and such order as this Honourable Court shall deem proper concerning the question of a trial or not taking into account the following grounds on which the order was sought (sic).

The grounds in respect of which the leave was granted are as follows:

(i) The learned trial judge was wrong in law and erred in failing to direct the Jury, on application of the Defence, to find the accused not guilty by direction in circumstances where the State brought to the Courts attention that it had allowed, caused or permitted a video tape to be lost which actually showed in part the incident upon which the charges were based and in circumstances where the State knew and it was brought to the Courts attention.

(ii) That the State knew at all times that the case was largely based on evidence of identification and that the accused at all times and prior to the video coming into the possession of the Garda included substantially in his Defence the Defence of alibi.

(iii) That at the time when the video was allowed to be lost by the State the evidence of identification was contradictory or contained contradictions particularly concerning identification by reason of type and colour of clothing and that the video contained evidence of type and colour of clothing.

(iv) That the accused's solicitor had asked for all stills or video footage to be made available to the accused's solicitor when he came on record for the accused and some considerable time before the trial.

(v) That the Garda in question had actually forgotten that he had had the video tape and provided the learned Circuit Court Judge with two video stills which disclosed that the video did include footage that could easily have assisted the Jury and the accused in respect of identification and through the State's action was lost to the accused and deprived him of his entitlement to a fair trial.

It was accepted by the parties to these proceedings that there was probably a typographical error in the order and that leave was also granted on a sixth ground as follows:

(vi) And in circumstances where the leading case on The Topic DPP -v- Braddish was opened in full to the Court and in circumstances where the difference between the cases was that in the present case at all times the accused had pleaded his innocence and protested a defence of alibi while in DPP -v- Braddish the State relied on an inculpatory statement of the accused and where in the present circumstances the judgment of the learned Supreme Court should be even more in favour of your applicant than Daniel Braddish.

It was conceded by counsel for the applicant that the relief as set out in paragraph 2 above was no longer being pursued so in effect the applicant's claim herein is for an order for certiorari quashing the decision of the respondent in refusing an application for an order that he should direct the jury to find the accused not guilty of the charges as preferred against him.

The background to this claim arises out of an incident that occurred on the afternoon of the 9^th day of March, 1997 at or near the Ninth Lock Road adjacent to Clondalkin Village in Dublin.

Mr. John Dillon was driving a red Honda Civic along the Ninth Lock Road travelling towards Clondalkin Village with a view to making a bank lodgement when he was forced to pull into the side of the road by a white BMW. The persons in the BMW were wearing balaclavas. Mr. Dillon attempted to get away from the BMW by reversing into the forecourt of a Shell Filling Station and at this point one of the robbers jumped out of the BMW onto the bonnet of his car. Mr. Dillon reversed into the Oatfield Industrial Estate as far as the Clondalkin Builders Providers and the BMW reversed after him. Two of the occupants of the BMW got out of their vehicle and forced Mr. Dillon to hand over his jacket which contained the lodgement. The BMW then sped off. An employee of the Shell Filling Station immediately contacted the Gardaí Síochána at Clondalkin when he saw what was happening and Gardaí Carroll and Cromley who were in a patrol car were flagged down on the Ninth Lock Road and having been advised that a robbery had taken place set off in hot pursuit of the BMW. They lost sight of the BMW for a time but obtained assistance from other motorists and were able to give chase down the Newcastle Road. In the car park of the Polly Hops public house the two Gardaí saw the white BMW which was parked. As a result of what a motorist Patrick Masterson advised them they proceeded on down the Newcastle Road to Peamount Hospital where they saw two men get out of a red Toyota pickup truck and one of these persons is Paul Corbally the applicant herein. Both persons were arrested on suspicion of having committed the robbery of Mr. Dillon.

Mr. Masterson having followed in the direction of both these vehicles caught up with them at Peamount Hospital a short time later. He saw the applicant Mr. Corbally at the red pickup truck and it has been indicated that he was positive that this was the same pickup truck and these two individuals were the same persons who had left the white BMW parked in the Polly Hops public house a few moments earlier.

Subsequently the applicant herein was charged with a number of offences including a charge of robbery contrary to s. 23 of the Larceny Act, 1916 as inserted by s. 5 of the Criminal Law Jurisdiction Act, 1976. The other charges preferred against the applicant were either discontinued or by direction of the respondent were struck out. The trial of the charges as preferred against the applicant did not take place before the respondent until the 15^th January, 2002. In the intervening period the applicant's solicitors on the 18^th September, 2001 wrote to the Chief State Solicitor seeking inter alia as a matter of urgency any video tapes either form the Shell Garage or Jensons Hotel which were referred to in an interview transcript. No reply was received to this letter. Subsequently on the 11^th day of October, 2001 the applicant's solicitors wrote again to the Chief State Solicitor seeking inter alia all video evidence and video stills in relation to the applicant's case and no reply was received to this letter. Subsequently on the 18^th day of November, 2001 the applicant's solicitors wrote again seeking inter alia all video recordings and any video stills in relation to the applicant's case and no reply was received to this letter. By way of a further letter of the 11^th January, 2002 the applicant's solicitors formally requested full disclosure and no reply was received to this letter.

Dara Byrne, prosecution solicitor, in her affidavit of the 11^th day of November, 2002 at paragraph six thereof avers as follows:

"As appears from the exhibits to Mr. Morrisons's affidavit of April 15^th, 2002 prior to this trial the solicitor's on record for the applicant sought inter alia disclosure of video evidence in the possession of the prosecution. I say and believe that on foot of these requests instructions were sought and obtained from Garda Chris Carroll of Robertstown Garda Station County Kildare. Garda Carroll informed Counsel for the prosecution that no such evidence was in his possession."

Counsel for the applicant in moving this application advised the Court that he had personally conducted the defence of the applicant at the Circuit Court criminal trial and that at the commencement of the proceedings he sought further clarification on the question of video evidence and was advised that there was none. The facts of such an application having been made are not disputed by either the respondent or the notice party and for the purpose of this application I accept the position as stated by counsel.

I am satisfied that the entire weight of the evidence in respect of the criminal prosecution of the applicant herein rested on the question of the visual identification by Mr. Masterson of the applicant being one of the persons in the white BMW who he saw leaving it and entering a red pickup van.

The trial commenced before the respondent on the 15^th day of January, 2002 and during the course of the second day of the trial it was brought to the attention of counsel for the applicant that in fact there was video evidence, that a video had been obtained by Garda Carroll from the Clondalkin Builders Providers and that he had examined the video and viewed it and that he had taken two still shots from the video, one of which allegedly showed the two occupants of the BMW dressed in a particular manner, the other still showing the BMW exiting onto the roadway away from the Builders Providers.

The background circumstances as to how the two stills from the video came about is explained by Dara Byrne, prosecution solicitor, at paragraph 7 of her affidavit wherein she avers.

"On the morning of the second day of the applicant's trial Garda Carroll informed the prosecution legal team that he had come across two video stills in Robertstown Garda Station. Garda Carroll stated that he had found these stills while looking at his papers after the first day of the trial. He also stated that he had looked at a video recording on a prior date. On this information being brought to the attention of the prosecution legal team counsel for the prosecution immediately informed his opposite number of the existence of these video stills and of the fact that Garda Carroll had examined the video from which they had been taken."

The involvement of Garda Carroll is described at paragraph 8 of the affidavit of Dara Byrne wherein she avers.

"Garda Carroll then gave evidence concerning the production of the video stills. To the best of his recollection some five years after the robbery he informed the court that he had sought video evidence a few days after the robbery. He became aware that a camera in Clondalkin Builders Providers pointed out towards an area where the stolen white BMW had been used in the robbery and might have been located. He proceeded to obtain the video recording from this camera from 3pm on the day of the robbery, the robbery having taken place after 3pm, and examined it. Garda Carroll gave evidence that the picture on the video jumped from place to place. He accepted that he must have been able to see both the red and white cars i.e. the car driven by the victim and that driven by the robbers reversing into the lane overlooked by the camera. It was his recollection that the video showed cars coming into the lane way very fast. He had no footage or stills of the cars reversing in his possession. He saw no one getting out of the cars on the video and he did not see either car leaving on the video. If the video had shown anyone getting out of the car he would have taken stills from it. He was quite satisfied that the video related to the incident in question. He subsequently took the video to the Garda Technical Bureau where it was enlarged but the registration number did not become clear on enlargement. He did not have any report from the Bureau and no copies of the video were made. He did not retain the video which he returned to Clondalkin Builders Providers. In response to a suggestion by counsel for the defence, he was unaware that it may have been possible to have the video pictures further enhanced by a company in England which might have allowed identification of the persons inside the white car."

Counsel for the applicant proceeded in the light of the information available to make an application to the respondent that he should direct the jury to find the accused not guilty of the charges relying extensively on the decision of the Supreme Court in Braddish -v- DPP [2001] 3 IR 127 and that the decision in Braddish was on all fours with the circumstances of the applicant's case, and in particular the facts that at all times the applicant has pleaded his innocence and protested a defence of alibi. The respondent refused the application, the trial proceeded, the applicant was convicted of robbery, and was sentenced to five years imprisonment, which term of imprisonment he is currently serving.

Counsel for the applicant has stressed that at the time of his application, Braddish -v- DPP represented the law and that the trial judge erred fundamentally in law in not following the ratio decidendi as set out in Braddish, and that in effect the respondent in his capacity as trial judge had no alternative but to accede to the application and accordingly his decision not to was fundamentally flawed. It is this decision that the applicant seeks to judicially review against a background where it is submitted on the applicant's behalf that if he had been advised prior to the trial that there was a video which was no longer available, that it had been obtained by the Garda authorities, that it had been examined, that it had been referred to the Technical Bureau of the Garda Síochána and that two stills had been taken from it the applicant would as a probability have applied for judicial review and having regard to the views as expressed in Braddish -v- DPP would have had a very strong case for the granting of a judicial review prohibiting the continuance of the prosecution as against the applicant but in the particular circumstances which arose in this case the applicant lost that opportunity to apply for judicial review prior to the Trial commencing and the only application that could be made on behalf of the applicant was that as made by counsel to the respondent herein during the course of the Trial and in particular on the second day.

It is clear on the evidence before me that the applicant lost the opportunity to apply for judicial review prior to trial by reason of the failure to disclose the existence of the video and the two stills despite a number of requests as made on the applicant's behalf in this regard.

I am satisfied that it is clear that the respondent considered the submissions of counsel for the applicant and the notice party and came to the conclusion that the trial should proceed and that the prosecution case would stand or fall on the visual identification evidence of Mr. Masterson, his overall view being that the issue could be safely left to the jury. I am satisfied in the particular circumstances of this case that it has been and may well still be open to the applicant to proceed by way of an appeal to the Court of Criminal Appeal, in respect of the verdict arrived at and the sentence handed down by the respondent, pursuant to s. 63 of the Courts of Justice Act, 1924 and Order 86 of the Rules of the Superior Courts.

In choosing the route of judicial review seeking an order of certiorari in respect of the decision of the respondent to refuse the application to direct the jury to find the accused not guilty, a difficulty is created in the particular circumstances of this case, because since the application is not being made pre-trial this court now has to contend with the fact that a trial has taken place, the jury have found the applicant guilty on the charge or robbery and the respondent has imposed a sentence of five years imprisonment which the applicant is now serving. If this application had been made in advance of the trial then the relevant test would appear to be to whether or not there would be a real risk of the applicant not receiving a fair trial whereas when the application is taken subsequent to the trial it would appear that the test alters as to whether or not, in the manner in which this application is framed, the decision of the respondent to refuse to direct the jury to find the accused not guilty was so fundamentally flawed as to render the trial fundamentally flawed.

The difficulty which I face in deciding this issue is that as is apparent from the affidavit of Dara Byrne that the respondent did consider that the legal principles to be applied are as set out in the judgment of Hardiman J. in Braddish -v- DPP and he also appears to have accepted the reasoning of Lynch J. in Murphy -v- DPP [1989] I.L.R.M. 71. He also appears to have indicated that the duty imposed thereby has to be interpreted realistically in the context of the facts of each case and he came to the conclusion that the appropriate approach was that the prosecution case would stand or fall on the evidence of Mr. Masterson. He also took the vital decision that the video was of little relevance to the issues in the trial and thus I am satisfied that the decision of the respondent was based on his interpretation of the decision of the Supreme Court in Braddish -v- DPP taken in conjunction with the particular facts which were before him.

In Ward -v- Special Criminal Court and Director of Public Prosecutions [1998] 2 I.L.R.M. 493 it was submitted that judicial review did not lie in circumstances where the accused had been arraigned before the Special Criminal Court and the trial commenced. In support of this contention reliance was placed on the dictum of Ó Dálaigh C.J. in People (Attorney General) -v- McGlynn [1967] I.R. 232 at p. 239 wherein Ó Dálaigh stated:

"The nature of a criminal trial by jury is that, once it starts, it continues right through until discharge or verdict. It has the unity and continuity of a play. It is something unknown to the criminal law for a jury to be recessed in the middle of a trial for months on end, and it would require clear words to authorise such an unusual alteration in the course of a criminal trial by jury."

O'Flaherty J. in Ward, in dealing with this submission in his judgment refers to the circumstances where the trial of the applicant had already commenced in the Special Criminal Court stated:

"I would endorse everything that Carney J. said about the undesirability of people repairing to the High Court for judicial review in relation to criminal trials at any stage (and certainly not during their currency) but in the exceptional circumstances of this case and having regard to the importance that there should be a definitive ruling on this matter of informer privilege it was right that Carney J. should have entertained the application at first instance and for us to hear it on appeal."

In Buckley -v- Kirby [2000] 3 IR 431 at p. 433 Geoghegan J. in the course of his judgment deals specifically with a situation which arises where an applicant has not brought an appeal but has gone the route of judicial review in circumstances where an appeal is much the more appropriate remedy though it would be open to a court to grant leave for judicial review against a background in a particular case where the applicant had been convicted of certain offences before the District Court and had appealed to the Circuit Court but prior to the hearing of the appeal had sought leave to apply by way of judicial review for an order of certiorari quashing the decision of the judge of the District Court. In dealing specifically with the situation referred to Geoghegan J. states:

"Although it does not directly arise in this case I think that I should deal with the fourth of the situations listed above. In a case where an appeal would clearly be the more appropriate remedy an applicant ought not necessarily be granted leave to bring judicial review proceedings merely because he has not in fact appealed. If he ought to have appealed the Court in its discretion may refuse leave."

I take the view that the applicant's situation is a more appropriate matter for an appeal to the Court of Criminal Appeal as that Court will have the benefit of the transcript of the evidence and will be able to consider the factual evidence in detail. The Court of Criminal Appeal will also be able to carry out an in-depth analysis of all the surrounding circumstances touching on the video and the two stills, the arguments as advanced at the trial to the respondent in his capacity as trial judge both on behalf of the applicant and the prosecuting authority, the reasoning leading to the respondent's decision to decline counsel's application in relation to the missing video evidence and the subsequent events touching in every way on the trial leading to the conviction of the applicant by the jury and the imposition of a five year custodial sentence.

I would be reluctant in any way to stray into an area which is more appropriate to be dealt with by the Court of Criminal Appeal and I have to bear in mind that this application while it is based on what I accept is a very strongly perceived misinterpretation and application of the relevant law by the respondent to the particular set of facts is not one involving some blatant error of jurisdiction such as the trial judge not having jurisdiction to hear the matter in the first instance.

It is apparent from the submissions as made to me that there are a number of other points to be advanced on the applicant's behalf which while not relevant to this application are clearly relevant to an appeal to the Court of Criminal Appeal.

Accordingly, in the particular circumstances of this application I come to the conclusion that in the exercise of my discretion it would be inappropriate for me to decide on this matter by way of judicial review as I take the view that the matter is more appropriate to be dealt with by way of an appeal to the Court of Criminal Appeal and accordingly I dismiss the application.