The High Court has refused an application to halt a robbery prosecution over Gardaí’s failure to seek CCTV footage from a nightclub and a fast-food restaurant. The court accepted that the footage could have been relevant and reasonably obtainable, but found that the applicant had not engaged sufficiently with the prosecution evidence to show why its absence warranted prohibition.
The applicant, a Lithuanian national, faced a robbery charge before the Circuit Criminal Court. He sought an order preventing the Director of Public Prosecutions from taking further steps in the prosecution and a declaration that Gardaí had failed in their duty to seek and preserve evidence that might support his defence.
The prosecution case was that the applicant and a co-accused robbed a man on Beamore Road, Drogheda, at about 3.15am on 19 March 2006. The alleged victim did not identify the assailants beyond describing them as two men. The identification evidence came principally from two off-duty Gardaí: one said he saw the attack from his home, and the other said he followed two men from the scene and kept them in view until they were stopped by colleagues.
The applicant and his co-accused said they had been on their way home from a nightclub called Storm and had stopped for food at Abrakebabra. The applicant argued that Gardaí should have obtained footage from those premises. Their managers later told his solicitor that footage would have been available for one month at the nightclub and up to six months at the restaurant. Gardaí had not sought it, saying it was immaterial because a witness placed the applicant at the scene.
The court said Gardaí must seek and retain evidence capable of bearing on guilt or innocence, subject to limits: the evidence must have a real potential to affect the defence, and the steps taken must be reasonably practicable. The judge considered the proposed footage speculative but not fanciful, and said obtaining it would have been reasonable and would not have required a disproportionate use of resources.
However, the judge was not satisfied that the applicant had sufficiently addressed the evidence against him. Garda Maguire’s evidence was that he continuously watched the two men from the scene until they were stopped, and the applicant accepted that he was stopped nearby. The judge said it was difficult to see how footage that might show the applicant entering or leaving the premises could justify prohibiting the prosecution.
The applicant’s delay in seeking the footage also weighed against the exceptional remedy, though the judge said delay alone was not enough to refuse it. The court refused the relief sought. It did not determine the applicant’s guilt or innocence; the robbery charge remained for trial.