The High Court has refused David Fagan’s application to prohibit his trial on robbery-related charges, finding that the judicial review application was brought too late and that the missing CCTV footage did not establish a serious risk of an unfair trial.
In a judgment delivered on 28 April 2006, Ms Justice Dunne declined to extend the time for bringing the application. She also considered the merits in case she was wrong on delay and concluded that the application should be refused on that basis too.
The charges relate to an alleged robbery at Movie Magic in Donaghmede on 23 March 2004. Gardaí viewed CCTV footage and identified Fagan and another person. The other person later pleaded guilty and was sentenced. Gardaí obtained a disc they believed held a copy of the footage, but it was blank. By the time a technician checked the shop’s recorder, the original recording had been overwritten. The footage was therefore unavailable to both sides.
Fagan’s solicitor sought disclosure, including the footage, on 30 July 2004. The solicitor was informed of what had happened in November. In January 2005, the Circuit Criminal Court was told that judicial review proceedings were intended and set a trial date for 15 June to allow time for the application. Leave to apply for judicial review was not sought until 10 June, five days before trial.
Fagan argued that the footage was real evidence that could have supported either side and that its loss put the fairness of the trial at risk. His application relied on the duty to preserve evidence discussed in earlier Supreme Court cases. The respondents argued that the loss was not the Gardaí’s fault, that the application was late, and that Fagan had not shown a real risk of an unfair trial.
Justice Dunne said the Gardaí had promptly sought a copy and believed the disc contained the footage; its loss had occurred through no fault of theirs. She found that mere inadvertence did not explain the delay after Fagan was informed in November, particularly given the January indication that an application would be brought and the time allowed by the trial court.
On the merits, the judge distinguished the case from an earlier decision involving a disputed confession. Fagan was alleged to have made admissions in custody, and the judgment said no real issue had been raised about the admissibility of the interview memorandum. The judge noted that it could still be found inadmissible at trial. She concluded that Fagan had not shown that the missing footage created a serious risk of an unfair trial. The court refused the application; it did not determine Fagan’s guilt or innocence.