The Supreme Court has stopped the prosecution of Robert Dunne on a robbery charge connected with the Parkway Filling Station in Palmerstown after concerns over CCTV evidence that was never obtained by gardaí.
Mr Dunne was charged with robbing money from the filling station on 18 January 1998. The station owner, Mr Torley, said its various areas were covered by video surveillance and that the cameras were operating on the night of the robbery.
He could not recall whether gardaí had requested or obtained the relevant tapes. Detective Garda Denis Kenny, who was in charge of the investigation but had not attended the scene that night, said no video recording of the events had been received or obtained by any member of An Garda Síochána. No affidavit was provided by the garda or gardaí who actually attended the filling station.
Mrs Justice McGuinness said the case was therefore not about a failure to preserve evidence already in Garda possession. Instead, the issue was whether the prosecution should be prohibited because gardaí failed to seek out evidence potentially bearing on guilt or innocence.
She endorsed the principle that gardaí have a duty to seek out and preserve relevant evidence, while stressing that the obligation must not be interpreted too broadly. Gardaí are not required to commit disproportionate manpower or resources to searching for every conceivable piece of evidence.
For a prosecution to be stopped on this basis, the missing evidence should be clearly relevant, there should be a strong probability that it was available, and its absence must create a real risk of an unfair trial.
On the facts before the court, and particularly because the only other evidence against Mr Dunne was described as a brief inculpatory statement, Mrs Justice McGuinness agreed that the appeal should be allowed.
The Supreme Court prohibited the Director of Public Prosecutions from proceeding further with the Palmerstown robbery charge. The judgment expressly limited the ruling to the facts of this case and left the broader limits of the Garda duty to seek evidence for fuller consideration in a future case.