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1. This is an application for Judicial Review made pursuant to an Order granting leave to proceed made on the 5th November, 1999 by the Supreme Court. The relief sought is an Order prohibiting a trial in the Circuit Criminal Court in which the Applicant is accused of committing robbery at a service station in Palmerstown, Co. Dublin on the 18th January, 1998. The Applicant further seeks a declaration that the Applicant was entitled to an opportunity to inspect a video of the location of the robbery, and to a further declaration that the Respondent and the Gardai were obliged to preserve such video evidence.

2. At 6 p.m. on the date in question Catherine Pidgeon was working at the service hatch of Parkway Service Station in Palmerstown. Three youths approached the service hatch, one of whom had a knife, demanding money which the terrified young girl duly handed over, together with some cigarettes. The youths then ran off.

3. There was a video system in operation in the forecourt of the garage which covered the precise locus of the said offence and the surrounding areas.

4. In an Affidavit sworn by the Applicant’s Solicitor, Mr. Murrough O’Rourke deposes that he spoke with Mr. Brian Torley, the Manager of the garage, who advised that the Gardai, on numerous occasions between September 1997 and June 1999 either requested or were given video recordings of offences which occurred at the said location, and indeed were also given video recordings for periods when no offence on the said premises had been reported. Mr. Torley advised Mr. O’Rourke that during the weeks before and after the 18th January, 1998 at least three and possibly four robberies or attempted robberies took place at the same premises.

5. Arising out of other enquiries, the Applicant was interviewed and made a statement on the 11th of March, 1998 in the presence of Garda Denis Kenny, the main investigating officer, admitting his involvement in the offence. The Applicant was subsequently charged and a book of evidence was served on the 10th of November, 1998. The Applicant was sent forward for trial to the Dublin Circuit Criminal Court and was arraigned on the 16th December, 1998. His trial was subsequently fixed for the 28th January, 1999.

6. On that date, an application was made on the Applicant’s behalf to adjourn the trial so as to permit his legal advisors to view a video tape of a separate robbery at Chapman Superstore in Clondalkin on March 6th, 1998 in respect of which the Applicant was charged in separate proceedings and to which offence he pleaded guilty. The adjournment application was granted and a new trial date was fixed for February 26th, 1999.

7. On the 29th January, 1999 the Applicant’s Solicitors wrote to the Office of the Chief State Solicitors seeking copies of the video tape of both the Clondalkin robbery and also all video recordings made at Parkway Service Station on January 18th, 1998. Certain videos were furnished to the Applicant’s advisors, but the same did not include a video for the 18th January, 1998.

8. Subsequently in July 1999 an application for discovery of this particular video recording was made before the Circuit Court, which said application was refused as the Circuit Judge was not satisfied that any video was in existence in relation to the matter. On July 29th, 1999, Geoghegan J. in the High Court refused leave to apply for Judicial Review, which said Order was reversed on appeal to the Supreme Court.

9. For whatever reason, the tape relating to the service station on the 18th January, 1998 is not available, nor has any explanation been furnished for either its non existence or non production.

10. Mr. Brian Torley in an Affidavit sworn on the 7th day July, 1999 deposed to the existence of the video camera and to the regular occurrence of robberies and other offences at the premises. In the ordinary course when the Gardai would arrive on the premises following an incident, he would show the relevant video tape of the time period of the said offence to them and immediately thereafter give the video cassette containing the relevant video to the Gardai.

11. Although the video system was in situ on the day in question, Mr. Torley states that he does not recall the particular robbery or the procedure adopted in respect of the video, mainly because of the multiplicity of incidents around the same period. He believes it is very unlikely that the usual procedure of handing over the video would not have been followed and that he would be likely to remember a departure from the procedures worked out with the Gardai.

12. In an Affidavit sworn on the 21st February, 2000, Garda Denis Kenny of Ronanstown Station deposed that he does not have, nor did he ever have, in his possession any video tape purporting to relate to the 18th January, 1998 at the service station. Nor to the best of his belief, was it ever given to or obtained by any other member of an Garda Siochana concerned with the investigation of the offence.

13. For the sake of completeness I should state that a further application for discovery was brought before Kelly J. in the High Court on the 26th day of June, 2000 in which the Respondent was directed to make discovery of all documents in his power or procurement touching on the existence or non existence of a video of the incident the subject matter of the charge. The Affidavit sworn by Garda Kenny on foot of the said Order failed to reveal any documentation.

14. In the context of this discovery procedure, it emerged that two Gardai other than Garda Kenny had attended the garage premises on the very day the offence occurred. Each of these Gardai took a statement from a different witness in the garage. These statements appear in the book of evidence which was served on the Applicant.

15. By letter dated 21st July, 2000, Mr. G. Ryall of the Chief State Solicitors Office wrote to the Applicant’s Solicitor stating:-

16. Mr. Gageby for the Applicant relied on Murphy -v- D.P.P. (1989) ILRM 71 as clear authority for the following:-

17. In that case Lynch J. granted an injunction restraining the D.P.P. from further proceeding in circumstances where the Gardai parted with possession of a car which had been involved in a criminal offence without examining it forensically or without notifying the Applicant’s legal representatives of their intention of giving it back to the insurance company in circumstances where the Applicant’s Solicitor had requested access to the car shortly after the offence for the purpose of forensic inspection. The Gardai behaviour was deemed to be a breach of the rule of fair procedures in those particular circumstances, and of such a degree as to justify the Court in restraining the D.P.P.

18. Mr. Gageby contends that he has been deprived of material which he should have received and which might have formed part of his defence. It was not something, he says, which by any direction the trial Judge could put to rights and there was a genuine and substantial risk of an unfair trial. Mr. Gageby submitted that it was of significance that neither of the Gardai who had attended the service station in the aftermath of the incident had provided information in relation to the video and that Garda Kenny essentially gave hearsay evidence on this entire matter.

19. Very similar facts arose in Mitchell -v- D.P.P. (2000)2 ILRM p. 396.

20. In that case the Applicant contended that he could not receive a fair trial in circumstances where a video system in a restaurant in Westmoreland Street and a Garda video recording system in the Temple Bar area had been destroyed without notice to him, and that in the absence of that evidence he could not now receive a fair trial. Geoghegan, J. refused however to restrain the D.P.P. from proceeding.

21. It is interesting to note that the Respondent met the case, insofar as the facts were concerned, by establishing that the camera in the restaurant was directed in the wrong direction and that the tapes from that camera were of no use. Geoghegan J. stated (at p. 39):-

22. He also found that it was not reasonable to expect that a Garda operated video recording system would have to be kept for considerable periods and each and every accused informed of their existence. He qualified that view by stating that it might be necessary to give such notice where tapes had been taken in circumstances where it was genuinely considered that such tapes might be relevant to the criminal proceedings. There would clearly always be such a duty if the Gardai were asked to keep such a tape, a circumstance which did not arise in that case. He also found there had been excessive delay in applying for the material.

23. The instant case differs from Mitchell -v- D.P.P ., where an explanation was available to show either why the tapes would serve no useful purpose or why, in relation to the Garda video tape, the same had not been preserved. The absence of such features in the instant case puts the Applicant in a slightly stronger position, assuming the Gardai were given the tapes and if there were no other issues for the Court to consider. An established system for dealing with such material has been deposed to and not contradicted by or on behalf of the Respondent. The two Gardai who attended and took statements at the garage on the date in question are the two persons best placed to say whether or not they received this material. Mr. Collins submits that, insofar as it may be contended that the investigating members of An Garda Siochana were under an obligation to seize and retain any tapes made at the Parkway Service Station on the day in question, the law itself did not impose such a duty. Further, it may well have been the case that the equipment was not working on the night in question, or that the tape was then or later accidentally erased. In short, there were explanations other than blame worthiness on the part of the Gardai involved.

24. I can only reach a view as a matter of probability on the material before me. It seems more likely and probable, given the existence of the system described in this case and the frequency of crimes at the particular location, that the investigating Gardai at around the time of the offence sought and were given the relevant tapes. In reaching this conclusion, I am disregarding certain hearsay evidence furnished to the Applicant’s Solicitor by Mr. Torley.

25. However, I must also take into account the Applicant’s delay in seeking the video, which was not requested until the 29th January, 1999, more than a year after the date of the offence. Moreover, that delay took place in the particular context that the Applicant had, at a comparatively early stage, made an inculpatory statement admitting his involvement in the whole affair. This changes the picture enormously, because the case thereafter was not one which turned on identification evidence alone, if at all. It is quite possible that, once this statement was made, the Gardai felt able to return the video tape to its owners. Alternatively the same may have been destroyed quite innocently either by the Gardai or by the owners after the passage of many months in circumstances where its preservation was no longer a priority. It is important to stress that throughout this delay period, there is no suggestion that the accused was resiling from his statement or making any case that due process had not been observed in and about the making of the statement.

26. As to the trial, I can see no difficulty in the way of the trial Judge explaining to the jury how this matter should play in their minds in the course of their deliberations based on such evidence, if any, as may be led on the issue. Presumably it could only arise as an issue if the statement is challenged. An absent piece of material does not render it impossible for a trial Judge to give appropriate instructions to the jury in such circumstances..

27. I cannot see any injustice to the Applicant in adopting this course. He has not been deprived of material which can only be interpreted as likely to have helped his case. There is no suggestion that the Gardai deliberately destroyed evidence in this case. The furthest it has ever been put is that there is an absence of any explanation for the non production of the tapes. However, a closer analysis suggests the explanation may lie in the events which transpired. There is independent evidence implicating the Applicant in the commission of the offence, to wit his own statement. There has been no suggestion, at any rate in these proceedings, that any impropriety attended the making of this statement. It is not a case turning exclusively on identification evidence where I might have taken a different view.

28. At the end of the day, Judicial Review is a discretionary remedy and I am satisfied that this Court should not lightly intervene to restrain a trial or prosecution unless there is an unavoidable or inevitable unfair trial to be seen as occurring, one which cannot be avoided by directions and proper charges given to a jury by the trial judge. That that is the test in this sort of case was confirmed by the Supreme Court in Daly -v- D.P.P (unreported judgment delivered on 11th April, 1994). For the reasons stated I do not feel this Court should intervene on the facts of this case. I am confirmed in my view by the recent Judgment of O’Caoimh, J. in Braddish -v- D.P.P (unreported decision delivered on the 21st December, 2000) and the cases therein referred to, where, on very similar facts (involving a missing video, an inculpatory statement and delay in seeking the video) the Court also determined the trial should proceed.