Title:	Whelton -v- O'Leary & anor
Neutral Citation:	[2010] IESC 63
Supreme Court Record Number:	51/08
High Court Record Number:	2007 21 JR
Date of Delivery:	12/21/2010
Court:	Supreme Court
Composition of Court:	Fennelly J., O'Donnell J., McKechnie J.
Judgment by:	Fennelly J.
Status:	Approved

BETWEEN

1. This is an appeal from an order of the High Court (Birmingham J) refusing the application of the appellant for judicial review by way of certiorari of his conviction in the District Court on a charge of theft, for which he had received a sentence of four months imprisonment suspended. It is fair to say that, apart from this conviction, the appellant had an unblemished record.

2. The appellant grounds his application for judicial review and now his appeal on two central complaints:

3. He was rearrested as was permitted by section 10(2) of the Criminal Justice Act, 1984 but was not charged “forthwith” as required by that provision: hence the District Court did not have jurisdiction to try him;

4. His trial was not fair, because the prosecution had not made available to him the CCTV footage for the entire of the time relevant to the charge of theft made against him.

The facts

5. The appellant was employed as a cashier at a leisure centre or amusement arcade in Cork in 2005. His employer suspected theft as a result of what he believed to be a shortfall in takings. He reported the matter to the gardaí, who commenced an investigation.

6. In August 2005 an investigating member of An Garda Síochána attended at the premises. In company with the employer, he viewed the CCTV footage pertaining to the night in question. They selected certain extracts which were downloaded and retained by the gardaí for use as evidence in the case. The gardaí did not seize the hard drive of the system. They selected only those parts which were incriminating, insofar as the appellant was concerned. These amounted to some 3 minutes and 36 seconds of footage composed of seven individual clips. These clips showed the appellant in his cashier’s kiosk on three separate occasions taking currency notes from the till and placing these notes in his left trouser pocket.

7. The appellant complains that he was thus unfairly depicted as simply taking money from the till, whereas he advanced an innocent explanation. That was that staff followed a practice whereby from time to time, when the cash float in the till was insufficient to meet a payout to a winning customer, employees would lend to the cash float on a temporary basis or would exchange small denominations for large denomination notes. The staff members would then repay themselves at a later stage.

8. The appellant was arrested on 1st September, 2005. He was taken to Bridewell Garda Station in Cork, where he was detained under the provisions of section 4 of the Criminal Justice Act, 1984 and questioned. He was released without charge after a little over three hours.

9. The Director of Public Prosecutions (DPP) subsequently directed that the appellant be charged with theft. On 27th October, 2005 he was rearrested.

10. Detective Garda Murray made a telephone call to the applicant around mid-day and informed him of the DPP’s direction. It was agreed that the applicant should meet by appointment with Detective Garda Murray for the purpose of being charged with the offence that had been directed. Although there is sharp disagreement about the reason for the choice of meeting place, it is agreed that the garda and the appellant met at about16:30 at Anglesea Street Garda Station in Cork. Following a formal arrest outside Anglesea Street Garda Station, the applicant was brought by Detective Garda Murray to the Bridewell Garda Station, the journey between the two stations taking approximately 10 minutes. On arrival at the latter Garda Station, the applicant was introduced to Garda Michael Kiernan, the member of the station party, who was, at the time, performing the role of member in charge.

11. The appellant was not formally charged immediately, but was placed in a holding cell for a period of fifty-five minutes approximately, being the period between 16.50 hours and 17.45 hours. The reason for this delay was that the printer which generated the charge sheets was out of order. Detective Garda Murray had to return to Anglesea Street to have them printed. The effect of this was to prolong by about twenty five minutes the period before the appellant was charged.

12. The applicant was then charged with two offences of theft on 21st August 2005 contrary to the Criminal Justice (Theft and Fraud Offences) Act, 2001. One of these was later dropped and is not relevant. The appellant was released on station bail to appear before Cork District Court on the 23rd November, 2005.

13. Detective Garda Murray explained in his affidavit that it is normal practice, when a person is re-arrested for the purpose of being charged, that he or she is placed in a cell while the charge sheets are being printed. He said: “Prisoners in custody are not allowed to roam freely around the Station.” Birmingham J rightly deprecated any practice whereby persons should be placed in a cell as a matter of routine or as a matter of administrative convenience.

14. From the appellant’s first appearance in the District Court on 23rd November 2005, the appellant, through his solicitors, objected to the jurisdiction of the court on the ground that he had not been lawfully charged and detained on 27th October: he had not, he said, been charged “forthwith” as required by section 10(2) of the Criminal Justice Act, 1984, his detention was unlawful and it followed that the court did not have jurisdiction to try him. He made written submissions on this point, which were considered by District Judge MacGruairc. The District Judge delivered a written judgment on 11th January 2006. He rejected the objection to jurisdiction on the basis that the matter should be considered as part of the trial of the appellant.

15. When the matter again came before the court on 10th February 2006, the DPP communicated his consent to summary trial pursuant to section 53(1) of the Criminal Justice (Theft and Fraud Offences) Act, 2001. The judge put the appellant to his election pursuant to section 53(1)(b) and he elected to be tried summarily. Thus, the prosecution, the appellant and the court accepted that the matter was one appropriate for summary trial. At the same hearing, one of the counts (alleging a general deficiency) was struck out on the application of the prosecution and the remaining charge was amended to refer only to theft of a “sum of money” rather than to €700. Finally, the District Judge, on the application of the solicitor for the appellant made a “Gary Doyle” order (see DPP v Doyle [1994] 2 I.R. 286) requiring the prosecution to furnish details of the evidence upon which it was intended to rely including witness statements and CCTV recordings.

16. The matter was adjourned to be heard on 2nd May 2006.

17. There ensued correspondence initiated by the appellant’s solicitor on 20th February 2006, regarding the CCTV recordings. The State Solicitor referred the solicitor to the gardaí, who replied, following a reminder, on 29th March. The solicitor was given witness statements and black and white copies, said to be of poor quality, of stills taken from the CCTV recordings which had been downloaded. The solicitor persisted with his demand for a copy of the actual CCTV footage. On 4th April, he was furnished with short extracts from the CCTV footage. In a telephone conversation on 10th April, Detective Garda Murray informed the solicitor that the CCTV footage upon which the prosecution would rely was not a continuous uninterrupted recording but rather was what was taken from the computer hard drive.

18. In fact, the hard drive of the computer was designed to store 2 to 3 months of continuous recording. Thus, the full record covering 21st August 2005 had been overwritten and was no longer available. This and further technical information was furnished to the solicitor in a telephone conversation on 1st May, the day before the hearing.

19. The respondent commenced the hearing of the case on 2nd May. It continued on that day and on 8th, 10th and 11th May.

20. Inspector Cummins presented the case for the prosecution. He indicated from the outset that he would be relying exclusively on the evidence from the CCTV footage. The appellant’s solicitor conveyed his intention to object to the admission of the CCTV footage into evidence. He maintained this objection consistently throughout the trial. The prosecution proposed to have this footage played in court. The defence objection was that this footage represented clips taken from the hard drive and did not contain a continuous record of the three-hour shift worked by the appellant. The defence solicitor said that the gardaí should have taken possession of the original complete unedited footage. The court was referred to a number of the decisions of this court concerning missing or lost evidence, in particular Braddish v Director of Public Prosecutions [2001] 3 I.R. 127; Dunne v Director of Public Prosecutions [202] 2 I.R. 305; McFarlane Director of Public Prosecutions [2007] 1 I.R. 134. The District Judge conducted a voir dire on 8th May concerning the admissibility of the evidence. Having heard further argument, the District Judge held that the defence had not been prejudiced by the failure of the gardaí to take the entire hard drive into garda custody and to furnish the defence with a copy of the complete and unedited footage.

21. Having made this ruling the judge indicated his intention to adjourn the hearing to 10th May for the purpose of viewing the CCTV footage. At that point the appellant’s solicitor informed the judge that he expected to be instructed to seek judicial review of his decision to admit the evidence, called “direction” in the affidavit.

22. On the morning of 10th May, the solicitor applied to the judge to stop the trial so as to facilitate an application to be made to the High Court for judicial review of that decision. The judge declined to stop the trial in the absence of an order of prohibition. He also declined to adjourn the trial for the same purpose.

23. The CCTV footage was played in court. It was effectively the only evidence incriminating the appellant. The appellant called as a witness a fellow employee at the leisure centre to give evidence of the practice of paying funds into the till as a float and later withdrawing it. The appellant did not give evidence. The District Judge convicted the appellant of the offence charged on 11th May 2006.

Proceedings

24. The appellant obtained an order of the High Court (Peart J) on 15th January 2007 granting him leave to apply for judicial review by way of certiorari of his conviction. The grounds may be summarised as follows:

1. The appellant was not charged forthwith following his second arrest on 27th October 2005 with the offence of which he was convicted, as required, in the circumstances of his case, by section 10(2) of the Criminal Justice Act, 1984; hence his constitutional and convention rights to liberty and to a fair trial were infringed; this rendered the charge defective and invalid and the respondent acted ultra vires his jurisdiction, whereas he should have discharged the appellant;

2. The appellant’s right to a fair trial was infringed by the failure of the gardaí to seek out, preserve and make available to him the originals and/or copies of all CCTV footage pertaining to his case; further the respondent contravened the appellant’s right to natural and constitutional justice by proceeding to hear the charge against the appellant and to admit the evidence of CCTV footage in the absence of the complete and unedited CCTV footage being taken into garda custody.

26. His principal reason for rejecting the appellant’s first argument was that the fact that he had been detained in a cell for 55 minutes, associated with a delay in charging him did not affect the jurisdiction the District Court to try him. He cited the judgments of Davitt P in State (Attorney General) v Judge Fawsitt [1955] I.R. 39 and of McGuinness J in Director of Public Prosecutions (McTiernan) v Bradley [2000] 1 I.R. 420.

27. Dealing with the CCTV issue, he accepted that the appellant’s solicitor had moved promptly and with great persistence to obtain the evidence. However, he found the argument for the relevance of the material of which the gardaí did not take possession “somewhat unconvincing and contrived.” He could not see how it could have had the relevance contended for. He though that requiring the retention of footage where no crime is being committed “would be a radical and unwarranted extension of the obligations imposed on the gardaí.”

28. Issues as to the weight of evidence and its admissibility were matters for the court of trial. He concluded that these were not matters which “require or justify intervention of this court by way of judicial review.” Thus he refused relief on both grounds.

The appeal

29. The appellant has placed extremely detailed written submissions before this Court in support of his appeal from the judgment of Birmingham J. The starting point of his argument, on the first point, is necessarily that his arrest on 27th October 2005 was unlawful. The gardaí had already, on 1st September 2005, arrested and detained him, using the powers conferred on them by section 4 of the Act of 1984. They had, however, not charged him arising from that detention but had released him after some three hours. Accordingly, the provisions of section 10(2) of the Criminal Justice Act, 1984 applied to his renewed arrest on 27th October. They place restrictions on the subsequent arrest of the same person on suspicion of the same offence. The section represents a policy protective of the liberty of the citizen. It provided, prior to amendment of sub-section 1 by the Criminal Justice (Amendment) Act, 2009:

(1) Where a person arrested on suspicion of having committed an offence is detained pursuant to section 4 and is released without any charge having been made against him, he shall not:

(a) be arrested again for the same offence, or

(b) be arrested for any other offence of which, at the time of the first arrest, the member of the Garda Síochána by whom he was arrested suspected him or ought reasonably to have suspected him,

except on the authority of a justice of the District Court who is satisfied on information supplied on oath by a member of the Garda Síochána not below the rank of superintendent that further information has come to the knowledge of the Garda Síochána since the person’s release as to his suspected participation in the offence for which his arrest is sought. A person arrested under that authority shall be dealt with pursuant to section 4.

(2) Notwithstanding anything in subsection (1), a person to whom that subsection relates may be arrested for any offence for the purpose of charging him with that offence forthwith.

31. O’Brien concerned the provisions of section 30A of the Offences against the State Act, 1939 and the jurisdiction of the Special Criminal Court.

32. Section 30A was inserted in the Act of 1939 by section 11 of the Offences against the State Act (Amendment) Act, 1998. Section 30A(3) is expressed in virtually identical terms with section 10(2) of the Act of 1984. The former provision applies to a person who has been arrested on an earlier occasion pursuant to section 30 of the Act of 1939 but released without charge, the latter to a prior arrest, detention and release pursuant to section 4 of the Act of 1984. In each case the new arrest which is exceptionally permitted must be effected “forthwith.”

33. The facts in O’Brien were somewhat different. The applicant was arrested on 6th April 2004 on foot of a warrant pursuant to section 29 of the Act of 1939, and detained pursuant to section 30 on suspicion of having committed the offence, contrary to section 21 of the Act, of being a member of an unlawful organisation. His period of detention was extended by a chief superintendent of An Garda Síochána. During that extended period, the Director of Public Prosecutions directed that he be brought before the Special Criminal Court and charged with the membership offence. Since the day was Holy Thursday, arrangements had to be made for a special sitting of that court. Once those arrangements had been made, the officer in charge of the investigation directed that the applicant be released and immediately arrested pursuant to section 4 of the Criminal Law Act, 1997. The applicant was accordingly arrested for charging with the membership offence and taken to a garda station to be detained—and he was so detained— overnight pending his appearance at the Special Criminal Court at noon on the following day. It was envisaged, in these circumstances, that he would be detained for some fifteen hours before being charged.

34. As Denham J noted in her judgment at page 525, the “intention manifest in s. 30A is that a person on a re-arrest in the circumstances of s. 30A may not be detained as if it were a first arrest under s. 30.” In my own judgment, I suggested, at page 534, that the general purpose of the provision was “to prevent abuse by An Garda Síochána by repetitive detention under s. 30 in pursuit of the same investigation.”

35. In O’Brien, it was a clear part of the garda objective that the applicant would be arrested on the Thursday evening, detained overnight in the garda station but not charged until he appeared on the following day at noon before the Special Criminal Court. This Court was unanimously of the view that his arrest was not effected for the purpose of charging him “forthwith.” His arrest and subsequent detention were unlawful. Thus, he was not lawfully brought before the Special Criminal Court on the Friday.

36. In my view, the appellant’s reliance upon O’Brien must fail.

37. The facts are, of course, very different. In O’Brien, it was never intended that the applicant be charged following his re-arrest on the Thursday evening. The Court held that section 4 of the Criminal Law Act, 1997 provided a lawful basis for his arrest. However, section 30A required that, in the circumstances of the earlier arrest and detention, the fresh arrest had to be “for the purpose of charging him……forthwith.” The procedure envisaged was that he be detained overnight in a garda station before being brought before the Special Criminal Court to be charged. Thus, he was not arrested with the intention of charging him “forthwith.”

38. In the present case, the intention was that the garda officer would meet the appellant either at Anglesea Street or Bridewell Garda Station, depending on which version was correct, and be charged that day. It was not envisaged that the charging would take place more than about a half an hour after the arrest. The intervention of the printer problem was unexpected. It was not part of the purpose. The question remains as to whether the purpose of the arrest was that he be charged “forthwith,” given that it was envisaged that there would be a delay of about a half an hour. In other words, it might be argued that the charge sheet should have been printed and ready so that the appellant would be charged immediately on attendance at the garda station. It is not necessary, in this case, to reach a final conclusion on that point, for a reason which I will now explain.

39. Birmingham J held that the District Court did not, in any event, lose jurisdiction by reason of any such delay as was complained of. Apart altogether from the issue of delay in charging, it has to be remembered that O’Brien concerned the procedures for bringing a person before the Special Criminal Court to be charged and tried there. The jurisdiction of that court is dependant on the person charged having been brought before the court pursuant to a lawful procedure. As was emphasised in the judgment of Denham J, section 43 of the Offences against the State Act, 1939 provides:

“A Special Criminal Court shall have jurisdiction to try and to convict to acquit a person lawfully brought before that Court for trial under this Act…” (emphasis added)

41. The District Court, by contrast, is a court of summary jurisdiction, whose function, envisaged by the Constitution, is the trial of persons charged with minor offences. Birmingham J referred to a well-known dictum of Davitt P in State (Attorney General) v. Judge Fawsitt [1955] I.R. 39 ate 43:

“The usual methods of securing the attendance of an accused person before the District Court, so that it may investigate a charge of an indictable offence made against him, is by way of arrest or by way of formal summons, but neither of these methods is essential. He could, of course, attend, voluntarily, if he so wished; so far as the exercise of the Court’s substantive jurisdiction is concerned it is perfectly immaterial in what way his attendance is secured so long as he is present before the District Justice in Court at the material time. Even if he is brought there by an illegal process, the Court’s jurisdiction is none the less effective.”

“It has been repeatedly pointed out that, as a general rule, the jurisdiction of the District Court to embark on any criminal proceeding is not affected by the fact, if it be the fact, that the accused person has been brought before the court by an illegal process.”

44. In Director of Public Prosecutions (McTiernan) v. Bradley, McGuinness, then a judge of the High Court, heard a case stated from the District Court. The accused had been arrested without warrant for an assault contrary to section 2(1)(b) of the Non-Fatal Offences against the Person Act, 1997. He came before the District Court for trial on that offence. By the time the matter came before the High Court, it was accepted that there was no power of arrest without warrant for an alleged offence under that section and that section 4 of the Criminal Law Act, 1997 did not confer such a power. McGuinness J, having cited the authorities, which I have already quoted, ruled that the District Judge, in that case, had been correct in entering upon the case before him. The answer given to the question posed in the case stated was that:

“ in cases where proof of a valid arrest was not an essential ingredient to ground a charge, the jurisdiction of the District Court to embark on any criminal proceeding was not affected by the fact that an accused person has been brought before the court by an illegal process, and the court should consider whether there had been a deliberate and conscious violation of the accused's rights, prior to embarking on the hearing.”

46. I turn to the ground based on the failure of the gardaí to take possession of the hard drive at the leisure centre or, alternatively, to download the entire sequence of footage covering the period of the appellant’s work shift. Under this heading the appellant complains that the failure of the gardaí to “seek out and preserve the originals and/or copies of all CCTV footage pertaining to these proceedings amounted to a breach of the Garda Síochana’s common law duty to seek out and preserve evidence potentially relevant to the issue of the guilt or innocence of the Applicant.”

47. As I have already recalled, Birmingham J thought that requiring the retention of footage where no crime is being committed “would be a radical and unwarranted extension of the obligations imposed on the gardaí.” There is great force in that remark. There have, at this point, been a large number of these so-called missing-evidence cases. The high point of the appellant’s case is that the facts of this case come within the scope of the authority of Dunne v Director of Public Prosecutions. In that case, there was a video recording covering the scene of the robbery at a filling station, with which the applicant was charged. No copy of the video recording had come into the possession of the gardaí. Hardiman J, delivering the majority judgment of this Court, considered that the gardaí should have taken possession of the video tape. McGuinness J agreed with Hardiman J, but said at page 309:

“Where a court would be asked to prohibit a trial on the grounds that there was an alleged failure to seek out evidence, it would have to be shown that any such evidence would be clearly relevant, that there was at least a strong probability that the evidence was available, and that it would in reality have a bearing on the guilt or innocence of the accused person. It would also be necessary to demonstrate that its absence created a real risk of an unfair trial.”

49. In all of the many missing-evidence that have been decided in the past decade, Dunne stands out as the only case in which it was held that the gardaí were under a duty to “seek out and preserve” a particular piece of evidence. The courts have not laid any general obligation on the prosecuting authorities to seek out and take possession of items of evidence. In the present case, the gardaí did, in fact, take possession, by downloading, of parts of the relevant footage. It is true that they copied only such parts as tended to incriminate the appellant. Detective Garda Murray has sworn an affidavit in these proceedings in which he says:

“I viewed the entirety of the footage pertaining to the night in question and selected in company of the complainant the relevant extracts which I directed should be downloaded and saved for use as evidence in the case. I am quite satisfied that all relevant portions of the footage were saved and that no portion of the footage which could conceivably be considered material to the guilt or innocence of the Applicant was omitted.”

51. At the time this footage was downloaded, Detective Garda Murray had no reason to foresee that the appellant would advance the explanation now advanced. He was not, of course, under any obligation to disclose the line the defence would take. Nonetheless, it is the fact that, at the time the hard drive was being viewed and extracts being selected, there was no reason to expect that any parts would be relevant to the trial other than those portraying the appellant taking money from the till. The appellant does not disclose, in his affidavit, what evidence was given by Detective Garda Murray on this point in the District Court or what line was taken in cross-examination.

52. Before commenting finally on this issue, it is important to bear in mind the context in which this issue is raised. The appellant invokes the jurisdiction exercised in the line of cases commencing with Braddish and Dunne. In written submissions, he analyses these and a large number of subsequent decisions. His submissions proceed on the assumption that this line of authority is directly applicable to the present case. But those cases and all subsequent such cases involved attempts by accused persons to prevent a pending trial for one or more offences. As Hardiman J expressed the test for the exercise of that jurisdiction, when delivering the judgment of this Court in Scully v Director of Public Prosecutions [2005] 1 I.R. 242 at 257, it is “first and last, with whether there is a real risk of an unfair trial.” In the present case, the Court is not asked to consider a risk of an unfair pending trial. It is invited to quash a conviction, not to prohibit a trial.

53. I am satisfied that, even applying the traditional test of real or serious risk of an unfair trial, the appellant falls short. The complaint concerning the failure to take possession of or copy the hard drive would involve a significant extension of the obligations of the prosecution authorities. It is at best doubtfully covered by Dunne. Here, as distinct from Dunne, the garda had taken possession of what they considered to be the relevant portions of the CCTV footage. They cannot be blamed for failing to recover material which they had no reason to believe to be of any relevance to the guilt or innocence of the appellant.

54. Finally, in order to justify an order quashing an actual conviction, the appellant would have to satisfy a different standard. It would be necessary to show that the trial was actually unfair to the extent that the respondent District Judge had so departed from proper or fair procedures as to act ultra vires.

55. The evidence shows that the learned District Judge heard the evidence of Detective Murray, who was available for cross-examination and that the appellant called evidence that it was accepted practice that, whenever there was a deficit in the cash float, the cashier on duty would temporarily make up the cash deficit but that he would subsequently repay himself. The hearing of this evidence was all a matter for the trial judge. Whether he admitted the evidence of the CCTV footage and whether he accepted any particular piece of evidence was all a matter within his jurisdiction.

56. The appellant has not referred the Court’s attention to any case in which a conviction was quashed on certiorari by reason of the failure of the prosecution authorities to seek out and retain evidence alleged to be of potential relevance.

57. I would dismiss the appeal and affirm the order of the High Court.