The Supreme Court has allowed an appeal by the Director of Public Prosecutions and refused an application to stop a robbery prosecution, despite the Gardaí’s loss of the shop’s security video.
The judgment, delivered by Mr Justice Fennelly on 24 February 2009, set aside a High Court order that had restrained the prosecution. The Supreme Court held that the accused had not demonstrated a real risk that the missing footage would prevent him from having a fair trial.
The prosecution concerns a robbery at an Xtravision shop in Greenhills, Tallaght, on 23 March 2001. According to the book of evidence, two masked youths took cash, phone cards and PlayStation games. Garda David Weir later encountered two youths matching the description; one escaped, while the accused was caught after dropping a bag containing games identified as stolen from the shop.
The judgment also records that the accused made a signed statement admitting the robbery after caution. He later said in an affidavit that he intended to challenge the alleged confession, but the Supreme Court considered his account ambiguous and noted that he did not directly address other evidence, including his apprehension and the recovery of the games.
The security tape had been handed to Gardaí and placed in a safe at Tallaght Garda Station. It was later found to be missing, and Garda Weir said there was no reason to believe it could be located. The Director accepted responsibility for the evidence’s absence but argued that the accused had not established the required risk to trial fairness.
A separate dispute concerned whether the Garda interview had been video-recorded. Three Garda affidavits denied that it had been recorded, while the accused claimed otherwise. That conflict was not resolved in the judicial review proceedings and was not before the Supreme Court on appeal; the court left the issue for the trial judge.
The Supreme Court said the loss of evidence must be considered alongside the full prosecution case and the defence response. It concluded that the suggestion the tape might have shown the accused came by the stolen goods in some other way was unsupported and remote. The court stressed that refusing to prohibit the trial did not limit the accused’s ability to raise any relevant defence, including challenging the admissibility of his statement.
The court allowed the Director’s appeal, set aside the High Court order and substituted an order refusing judicial review. It did not determine the accused’s guilt or the admissibility of the statement.