THE HIGH COURT
JUDICIAL REVIEW
[2002 No. 414 J.R.]
BETWEEN
KAREN O’CALLAGHAN
APPLICANT
AND
THE JUDGES OF THE DUBLIN METROPOLITAN DISTRICT COURT
FIRST NAMED RESPONDENT
AND
THE DIRECTOR OF PUBLIC PROSEUCTION
SECOND NAMED RESPONDENT
JUDGMENT of Mr. Justice Kearns delivered the 20th day of May, 2004.
	The applicant in these proceedings was on 10th March 2002 charged that on the 9th March 2002 at Shelbourne Park, South Lotts Road, Ringsend, Dublin 4, she did steal property to wit, a black wallet and £60 in cash, the property of Emma Hawkins, contrary to s. 2 of the Larceny Act, 1916 as amended by s. 9 of the Larceny Act, 1990.  
	Another person, Brendan Duffy, was similarly charged on the said occasion, both in respect of stealing the said wallet and of handling same contrary to s. 33 of the Larceny Act 1916 as amended by s. 3 of the Larceny Act 1990.
	The applicant now seeks from this court an order of prohibition preventing her trial on the said charge.  
	Leave to seek judicial review by way of prohibition was granted by this court on 15th July, 2002 on grounds which may be summarised as follows:-
(1)	that the right of the applicant to a fair trial has been violated by the failure of the Gardaí to obtain and/or to preserve a video tape of the incident the subject matter of the charge against the applicant
(2)	that the second named respondent failed to comply with the principles of natural and constitutional justice and basic fairness of procedures by failing in their duty to seek out and obtain all relevant evidence having a bearing or a potential bearing on the guilt or innocence of the accused
(3)	that such failure amounted to a violation of the rights of the applicant to a fair trial in accordance with natural and constitutional justice
Background
	On Saturday night, 9th March 2002, Emma Hawkins went to Shelbourne Park Dog Track in Dublin with her boyfriend Joseph Sullivan.  At the dog track she met Mary Harnett, Matt Lee, who is or was Mary Harnett’s partner and Sarah Sullivan, who is a sister of Joseph Sullivan.  Towards the end of the evening, the group was gathered in a downstairs bar near the entrance to the outdoor viewing area.  They were standing close to a pillar which had a shelf built on to it where they had placed their drinks.   The group had removed their bags and jackets and had placed them on the floor beside the pillar.  
	Emma Hawkins, in her statement of proposed evidence, states that she saw a woman whom she did not know drag her handbag away from the pillar with her right foot.  She then realised that her handbag was open and, on checking her bag, discovered her black leather wallet was missing.  On making some exclamation to this effect, the woman who had been dragging the bag away with her foot, commenced to run towards the exit and Emma Hawkins pursued her, grabbing her right arm.  This person, who later identified herself as the applicant herein, then threw the wallet towards another man, but Joseph Sullivan managed to grab the wallet before this other man, later identified as Brendan Duffy, got to it.  At this stage, security personnel moved in, surrounding the woman and man who had tried to get the wallet and held them until the Gardaí arrived.
	Garda Patrick French and Garda Bernadette Lacey arrived at Shelbourne Park Race Track at about 10.30 p.m. and were brought by security personnel to a room at the rear of the ground floor where they met Emma Hawkins.  She described the incident, including the fact that the man to whom the wallet had been thrown had attempted to flee but was stopped by security personnel.  Garda French also spoke to Joseph Sullivan and Mary Harnett who had also witnessed the incident and who corroborated the account furnished by Emma Hawkins.  Garda French spoke to Karen O’Callaghan and, having cautioned her, asked her if she had stolen the wallet.  It is alleged that in response she nodded and muttered yes.  The assertion that she made this admission is corroborated in the statement of proposed evidence of Garda Bernadette Lacey.  The applicant gave her name to the Gardaí on request, as did Brendan Duffy, who made no reply to various questions put to him by the investigating officers.  Based on the information they had received from the three eye witnesses, the Gardaí proceeded to arrest both Karen O’Callaghan and Brendan Duffy and bring them to Irishtown Garda Station.  Having been charged as aforesaid, both were granted station bail to appear at Court 46 on 28th March 2002.  On that occasion evidence of arrest, charge and caution was given and the case was remanded until 11th April 2002.  On that occasion, Brendan Duffy’s solicitor made an application to the court that a copy of the security video tape from Shelbourne Park for the night of 9th March 2002 be furnished to Mr. Duffy’s legal advisers before the next court date.  
	In this regard it should be noted that Brendan Duffy had attended his legal advisers on 9th April 2002 and told them in the course of a consultation that he had been told by the Gardaí after his arrest that the incident was on video.  Garda French, however, denies in his affidavit that he made any reference whatsoever to Mr. Duffy about a video, asserting instead that he believed the evidence of the three eye witnesses would be sufficient to prosecute the case.  In his statement of proposed evidence, he further asserts that the video cameras in Shelbourne Park are passive in the sense that they are not monitored.  He further asserts that the incident may not have been on tape.  
	Judge Malone on 11th April 2002 directed that the video be made available to the accused Brendan Duffy or his legal advisers.  Accordingly on 18th April 2002 Garda French called to Shelbourne Park where he was informed by security personnel that they had 31 video tapes, one for each day of the month.  This meant that the tape for the 9th March 2002 had been taped over on 9th April, 2002, some two days before Mr. Duffy’s solicitor had been granted the production order for same in court.  
	Thereafter Judge Malone remanded the case against Brendan Duffy for hearing to Court 46 on 15th October 2002.  Separate judicial review proceedings were brought on behalf of Brendan Duffy seeking precisely the same reliefs as are sought by the applicant in the present case.  Leave for that purpose was granted by the High Court (McKechnie J.) on 1st July, 2002.  Those proceedings were not contested by or on behalf of the D.P.P. but were, on a date subsequent to the leave application in the instant case, resolved on the basis that the D.P.P. was not proposing to proceed further with the prosecution against Brendan Duffy arising out of this incident.  Accordingly an unopposed order for prohibition was made by the High Court (Ó Caoimh J.) on 10th March, 2003.
	That being so, the applicant sought, with the consent of the respondent in the instant case, to enlarge the grounds in the present case, to include the additional ground that the applicant was or is entitled to an order of prohibition on the basis of the guarantee of equality before the law contained in Article 40.1 of the Constitution in circumstances where her co-accused, having been charged with the same offence, was granted prohibition in judicial review proceedings where prohibition had been sought on the same grounds relating to the non-availability of the video.  Given that these developments took place subsequent to the granting of leave by this court in the present case, I decided to grant the application to allow the applicant argue this further additional ground in these proceedings.  
Submissions of the Parties
	On behalf of the applicant, Dr. Forde SC submitted that there was a clear duty and obligation on the Gardaí in the instant case to seek out and preserve all relevant evidence going to guilt or innocence, including, in particular, video evidence of the area of Shelbourne Park Stadium where the alleged offence took place.  His client had furthermore asserted that he had been informed by the Gardaí that the whole offence had been “caught on video”.  The fact that there were three eye witnesses who allegedly saw and witnessed the commission of the alleged offence by the applicant did not detract from this obligation.  It was not, he submitted, for the Gardaí to take it upon themselves not to bother with the video evidence having regard to the other evidence which was available to them.  That this was the law was clear, Dr. Forde submitted, from Supreme Court decisions in Braddish v. D.P.P. [2001] 3 I.R. 127 and Dunne v. D.P.P. [2002] 2 I.R. 322.
	He further submitted that the court should have no regard to the alleged admission of guilt by the applicant following her arrest by the Gardaí.  In the two cases just cited, the Supreme Court had not attached any significance to the fact that admissions of guilt had allegedly been made in each case.  
	Nor was there, he submitted, any culpulable delay in seeking out the evidence, given that the same was sought by her solicitors on the 11th April, 2002 in circumstances where the firm of solicitors were only assigned to act on the applicant’s behalf on 28th March, 2002.  Finally, Dr. Forde relied on the Supreme Court decision in McMahon v. Leahy [1984] I.R. 525, to contend that the trial should be prohibited under Article 40, s. 1 of the Constitution which requires that all citizens shall, as human persons, be held equal before the law.  In that particular case, the Supreme Court had declined to extradite a prisoner who had escaped from a courthouse in Northern Ireland in circumstances where two other fellow escapees had successfully resisted extradition on the ground of the political nature of the escape and in two other cases the claim of the escapees to exemption from extradition on the grounds of the political nature of the escape was not opposed.  In that case, Dr. Forde, submitted, there was no material difference between the circumstances of the five persons who had escaped from the courthouse, nor was there any reason in the instant case, where the D.P.P. had declined to further prosecute the applicant’s co-accused, to take any different view.  It would be quite wrong, Dr. Forde, submitted, for the D.P.P. to consent to an order for prohibition in the case of one of two participants to an alleged offence with similar facts and then take a contrary view for no apparent reason in relation to the other alleged offender.  
	On behalf of the respondent, Mr. McDermott B.L. submitted that it was never the intention of the Director to use video evidence in the prosecution of the alleged offence in respect of which the applicant had been charged and that the evidence of the three eye witnesses was sufficient to prosecute the applicant.  Contrary to what had been alleged by the applicant, Garda French had not viewed a video tape of the incident, nor had the video tape ever been in the possession of the D.P.P. or the Gardaí.  This was not a case where the Gardaí had evidence in their possession and lost it.  While there were video cameras operating in the stadium on the night in question, it was by no means clear that the particular incident would have been caught on video.  It was accepted, however, that video evidence had not been sought having regard to the strength of the other available evidence.  
	Mr. McDermott relied strongly on the most recent Supreme Court pronouncement of the applicable law as outlined in McKeown v. Judges of the Dublin Circuit Court and the D.P.P. (unreported, Supreme Court, April 9, 2003) to argue that it is the duty of the court in cases of this nature to “keep a reasonable balance” between the obligation of the prosecution to present as strong a case as possible against wrongdoers, and the right of an accused to defend himself and, in so doing, by all legal means, to attempt to show that there may be a reasonable doubt as to his guilt or innocence.  Mr. McDermott submitted that the key question to be asked is whether the material, even if it is not to be used by the prosecution, could be of assistance to the defence.  For example, if a stolen car is to be returned to its true owner, it should be returned only after notice has been given to an accused person or his legal advisers of the intention to return the vehicle and a reasonable time given for an accused or his advisers either to examine the evidence or to dispense with examination.  Mr. McDermott submitted that the video tape in the present case did not fall into that category of evidence as the video had never been in police possession.
	Moreover, Mr. McDermott submitted, there is an onus of proof on an applicant in cases of this nature to show prejudice and a real risk of an unfair trial where a piece of evidence is absent.  This onus must be discharged as a pre-condition to the exercise by the court of its discretion to make an order of prohibition.  It was not sufficient, Mr. McDermott argued, to merely assert, without more, that there was or, might be, video footage of the locus where an offence was alleged to have taken place.  This onus could be discharged in various ways.  For example, it could be alleged that an error of identification might have led to the wrong person being charged.  No such issue arose in the instant case.  Another example would be one of a situation where, without comprising the right to silence, an accused person gave notice of an alibi for the time when the alleged offence occurred.  Equally, that did not arise in the instant case.  For the absence of the video to be meaningful in any way, there had to be some evidence to show that it might have something of relevance to say to the facts of the particular case.  That was not the case here.  
	Furthermore, Mr. McDermott strongly urged upon the court that the alleged admission of guilt by the applicant should be taken into account by the court in exercising its discretion.  As noted in Scully v. D.P.P. (unreported decision of this court, 21st November, 2003) an admission of guilt has been seen by the Supreme Court in two cases as relevant to the exercise of the court’s discretion in “sex delay cases” (B v. D.P.P. [1997] 3 I.R. 140 at p. 202; P.C. v. D.P.P. [1999] 2 I.R. 80).  
Mr. McDermott further submitted that the additional ground of alleged inequality before the law was a point without merit.  The case relied upon related to a particular issue where the political status of four persons, all of whom had escaped from custody in Northern Ireland, had been established in prior court proceedings or not contested by the D.P.P.  They were unique circumstances where a legal issue of considerable importance had been fully ventilated and determined.  Furthermore, there had been a delay of 8 years before the extradition was sought.  It was, Mr. McDermott submitted, quite different from the instant case.  To stop a prosecution on the basis argued would be an intolerable intrusion into the prosecutorial role of the D.P.P.  It would mean, for example that where four persons participated in a bank robbery and only two of the number were charged, those two persons could seek prohibition on the basis that the other two participants had not similarly being charged.  The court should not speculate upon the reasons why the D.P.P. had not contested the case of Brendan Duffy.  Each case had to be considered on its own particular facts and, unless there was mala fides on the part of the D.P.P. in bringing and maintaining a prosecution, the court had no real function to stop an individual prosecution simply because the D.P.P. had, for whatever reasons had to him seemed appropriate, decided not to prosecute another similar case.  
	Finally, Mr. McDermott submitted there had been delay in seeking the video.  It was a matter of public knowledge that video material coming into being in circumstances such as obtained in the present case was likely to be preserved for only a very limited period of time, perhaps days or weeks, before being erased or taped over.  It could hardly be a desirable state of affairs that an applicant could, intentionally or otherwise, allow an interval of time to elapse before seeking such video material when the passage of time rendered it ever more likely that such material would no longer be available.  
Decision
	There is a growing corpus of case law in Ireland dealing with the requirement to seek out and preserve evidence in the context of a proposed criminal trial.  Many of the cases in recent years address the role of video evidence in this context and this court attempted to review those cases in its decision in Scully v. D.P.P. (unreported decision delivered 21st November 2003) at pp. 11 – 24 of that judgment.  
	Having conducted that review, this court felt able to express the following view of the legal principles applicable in circumstances where evidence has either not being sought or obtained, or if sought or obtained, has thereafter become lost:-
“ … where evidence has either not been obtained or been lost, which it is contended might have some relevance in establishing guilt or innocence, the court should not too quickly yield to an application to prohibit a trial, and indeed should not accede to such an application where an explanation is forthcoming for the absence of the evidence and that explanation establishes to the satisfaction of the court that the evidence or material could have no possible bearing on the guilt or innocence of the accused … the Gardaí must be allowed to function and perform their duties without having impossible requirements heaped upon them.  … on it being established that there is no actual prejudice to an applicant there is, in my view, no basis for prohibiting a trial.
The judgment of Geoghegan J. in Mitchell v. D.P.P. [2000] 2 ILRM 396 and the recent decision of the Supreme Court in McKeown v. The Judges of the Dublin Circuit Court and the D.P.P. (unreported Supreme Court, 9th April, 2003) reinforces my own view that some sort of commonsense parameters of reasonable practicality must govern any determination of the scope of the duty on the Gardaí when seeking out or preserving evidence.  This must of necessity imply that some margin of appreciation be extended to Gardaí when investigating crime to determine what they may reasonably consider to have some possible relevance in establishing guilt or innocence.  What is the alternative?  Is it for the accused person or his legal advisers to dictate the parameters?  Alternatively, must the Gardaí go on seeking out and preserving any and every possible piece of evidence which might by the remotest chance, admit of being relevant in some fashion in a subsequent trial?  I think not.  To set the bar too high for Gardaí in seeking out and/or preserving evidence is more likely in my opinion to frustrate the administration of justice and due process than to uphold it.  I am leaving altogether to one side considerations of malicious behaviour on the part of the Gardaí, or any kind of bad faith, which would render these observations entirely inapplicable.  However, where a Garda bona fide exercises his judgment on reasonable grounds that a particular article or item could be of no conceivable benefit to an accused person, then it seems to me, that on proof of having met a requirement to establish that fact, an application for prohibition for its non availability should not succeed”.
	I am much impressed by Mr. McDermott’s submission that there is an onus of proof on an applicant in a case of this nature to place some evidence before the court which would enable it decide, as a matter of probability, that, because of the absence of some particular piece of evidence, some injustice, prejudice or real risk of an unfair trial which cannot otherwise be avoided will follow if an order for prohibition is not made.  
	There is no suggestion in the material presented to the court by the applicant that the eye witnesses or the Gardaí misidentified the applicant, or that the question of her identity will in any way be an issue when the case comes on for trial.  There is no suggestion in the material placed before the court on behalf of the applicant that the applicant may have an alibi for the night in question.  Had such a case been made, the video material might assume a significant degree of importance.  Instead, there is merely an assertion that notwithstanding the availability of multiple eye-witnesses to the events in question, the failure to obtain the video is, per se and without more, sufficient to warrant prohibiting the trial.  
	The proposition that the court must prohibit every trial where video evidence has either not been sought, or having been sought and obtained, has thereafter been lost or mislaid, could lead to strange results.  By way of example, suppose a handbag snatch takes place on the quays outside the Four Courts.  Assume it is a case where the perpetrator is apprehended on the spot by Gardaí in full view of a large number of pedestrians, many of whom see the entire episode and can as a result identify the offender.  Could the trial nonetheless be stopped on the basis that video or photographic evidence is not also sought from a group of tourists who happen to be passing at that moment on a bus tour of Dublin City, given that one of them might conceivably have caught the incident on camera?  Video or photographic evidence might have been available, but could the failure to seek it out be said to create a real risk of prejudice or an unfair trial to an accused person in those particular circumstances?  If the answer is in the negative, it suggests that in every case of this nature, the exercise by the court of its discretion should turn on the particular facts of the case.  On the facts of this particular case, there has been a complete failure on the part of the applicant to show or demonstrate how the absence of the video material might conceivably prejudice her trial or create a real risk of an unfair trial.  
	An extreme example of this nature underlines the good sense of the observations of McCracken J. in McKeown v. The Judges of the Dublin Circuit and the D.P.P. where he stated (at p. 9):-
“The jurisdiction of the High Court to prohibit a trial is based on the basic and constitutional right of an accused to a fair trial.  It is the duty of the court to keep a reasonable balance between the obligation of the prosecution to present as strong case as possible against wrongdoers, and the right of an accused to defend himself and in so doing, by all legal means, to attempt to show that there may be a reasonable doubt as to his guilt or innocence.  The Gardaí are, of course, independent of both the Director of Public Prosecutions and the accused.  That they must act independently seems to me to be part of the foundations of our system of justice, and I have no doubt that there is an obligation on the Gardaí to disclose to both the prosecution and the defence all matters which might be of assistance either to the prosecution or to the defence.  It should be noted, that in indictable offences such as this, it is for the Director of Public Prosecutions and not for the Gardaí to decide what evidence will be used against an accused.  I fully accept that these principles must be tempered by the application of the concept of reasonableness.  There obviously are limits to the lengths to which the Gardaí must go in either seeking out or preserving evidence.  To that extent each case must be judged on its own facts …”
	The particular facts of the present case are that no case has been advanced in this judicial review hearing that there is or has been a case of misidentification of the applicant, nor is there any suggestion that the applicant proposes to rely on any sort of alibi at the hearing.  There is an alleged admission of guilt by the applicant, the making of which she has not disputed or denied in the course of this application.  Nor has she told the court that she has, or intends to, resile from same.  Thus, the omission of the Gardaí to obtain and preserve the video, while culpable and undoubtedly an omission which warrants a degree of criticism, is not on the facts of the instant case of such significance as to warrant the making of a prohibition order.  In reaching this conclusion, I am taking very much into account the fact there was this abundance of other evidence available to the Gardaí which presumably led them to think that the video need not be sought.  That said, this is clearly not a case, on the material placed before the court, where evidence of identification is, without the video, absent or one which relies on confession evidence only.
	There was also a delay in seeking the video.  Given the contention of Brendan Duffy that he was informed by the Gardaí that he had been “caught on video”, that contention, if correct, would have given rise to a corresponding obligation on his part to immediately seek the preservation of the video if he felt it could exculpate him in any way.  In Braddish v. D.P.P., Hardiman J. noted that “there is also responsibility on a defendant’s advisers, with their special knowledge and information, to request material thought by them to be relevant.” 
	It must surely follow that where an applicant professes to have actual knowledge of a relevant video that he should then move with all expedition to seek preservation of a video which virtually every citizen would now understand and appreciate was liable to be erased or taped over if not promptly sought.  In this context, delay has a special meaning, a meaning to be derived from the short life expectancy of video material created in this way.  Delays of months should not, in my view, be permitted to pass by before an applicant, who is aware of its existence, moves to seek production of a video.  Any other approach means that instances may well occur where an accused person can simply sit back, allow time to pass and then derail a proposed trial by calling for a video which has by then almost certainly been destroyed.  This would, in effect, constitute what in the board game of monopoly is called a “get out of jail free” card, the use of which could in the present context frustrate many perfectly reasonable prosecutions. 
	However, in the instant case I cannot impute the claimed knowledge of Brendan Duffy to the applicant.  Further, the delay, whilst substantial in this particular context, cannot be shown to be part of any deliberate stratagem on the part of the applicant to allow a particular period of time to elapse before the video was sought.  In fact, the applicant’s solicitors moved reasonably promptly in this regard once instructed.  
	I am also of the view that in cases of this type an admission of guilt by an accused is also a factor to be taken into account by the court when exercising its discretion, particularly where its admissibility has not been challenged or disputed.  The judgment of Hardiman J. in Dunne v. D.P.P. expressed some scepticism about the reliability of confession evidence and clearly the existence of a confession in that case was not seen as having any importance in the present context.  However, in B v. Director of Public Prosecutions [1997] 3 I.R. 140, the following passage is to be found at p. 202 of the Supreme Court judgment of Denham J. :-
“(g) admission of guilt 
	If there has been an admission by the accused of all or any of the alleged crimes this would be a factor for consideration.  If the admission is contested that is also a matter to be considered by the court on an application to prohibit the trial on the ground of delay”.  
	This approach was also followed by Lynch J. in P.C. v. D.P.P. [1999] 2 I.R. (at p. 80).  I cannot see any reason why this court should take any other view from that taken in the sex delay cases and take it into account as a factor going to discretion.  The court invited counsel for the applicant to indicate any reasonable basis for drawing a distinction between those cases and the present one and counsel frankly conceded that he could not.  
	However, the principal ground for refusing the relief sought in this case is the failure of the applicant to discharge the onus of proving, on the facts, that some real risk of an unfair trial exists in this case due to the absence of the video.  For these various reasons, I do not propose to prohibit the trial herein.
	On the separate issues of equality before the law, the facts of this case are as different as could be from those in McMahon v. Leahy [1984] I.R. 525.  In that case, quite apart from the eight year delay in bringing the fifth applicant before the court, the four other applicants had all successfully resisted extradition because their political status had either been established in court or conceded.  Effectively, the only issue in those cases was whether or not the five escapees could invoke political status to resist extradition.  Given that precisely the same legal point existed in the case of each escapee, it was hardly to be expected that the Supreme Court would adopt a different view of “political status” than had been previously found or conceded in the other cases.
	If Dr. Forde’s contention is correct, it would mean that in every case where there are charges brought against multiple offenders, arising out of similar facts, prohibition would have to follow where any prosecution against one of several offenders fails.  Equally, in the example furnished by Mr. McDermott, where a single person only of several participating offenders is charged, a prohibition application presumably could be brought to restrain the trial of that person on the basis of allegedly unequal treatment.  I cannot accept that the decision cited by Dr. Forde could possibly have such wide and far reaching implications, which would effectively impose a gross limitation on the ability of the D.P.P. to discharge his statutory functions.  
	Accordingly, I refuse to grant prohibition in this case.