A Supreme Court judge has said the prosecution of Robert Dunne over an alleged robbery at the Parkway Filling Station should be prohibited because video evidence likely to have recorded the incident was not obtained or preserved.
Delivering his judgment, Mr Justice Hardiman said the filling station had several cameras covering the forecourt, shop and till area. The owner was certain the system was operating at the time and said Gardaí normally viewed and took tapes after robberies.
The High Court had found it more likely than not that Gardaí were given the relevant tapes. Garda evidence, however, stated that no member connected with the investigation had ever received or obtained them.
Mr Justice Hardiman held that the crucial issue went further than preservation. Gardaí, because of their investigative role, must take reasonable steps to seek out evidence with a potential bearing on guilt or innocence. In this case, he said, asking whether CCTV existed and requesting the recording would have been an obvious and straightforward line of inquiry.
The missing footage mattered particularly because the prosecution case, as described in the judgment, rested on an alleged confession which was not corroborated. The judge considered it overwhelmingly likely that the surveillance system had recorded the unmasked perpetrators and that the tape could therefore have been highly significant either for the prosecution or the defence.
He rejected an approach requiring an accused to prove police bad faith before relief could be granted. The relevant Irish test, he said, was whether there was a real risk that the accused would not receive a fair trial.
The High Court had also relied on delay, measuring it from the January 1998 offence until the defence first requested the tape in January 1999. Mr Justice Hardiman considered that approach too harsh, noting Dunne was not charged until August 1998.
He concluded that an order should prohibit any further prosecution on the Parkway Filling Station charge.