High Court: District judge was right to accept garda evidence on lost CCTV footage

About this case:

• Citation:
  [2020] IEHC 120
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Mary Rose Gearty

Ms Justice Mary Rose Gearty heard the consultative case stated based on a series of events which began with a car chase through Granard, County Longford and ended with the arrest of Laura Doyle as she sat in the driver’s seat of her Toyota Avensis.

Background

The Avensis was seen driving erratically, and the gardaí were notified. When signalled to pull over, the Avensis continued on its course before pulling into the car park of a hotel. Gardaí followed close behind, as the driver reached speeds of up to 120km per hour. However, the garda driver lost sight of the Avensis for a short period, before noticing headlights from the car park.

There, he found the car and renewed the pursuit with siren and blue lights. The Avensis exited the car park, veered onto the wrong side of the road, and drove in the direction of Mullingar but came to a stop further down the road. Ms Doyle was in the driver’s seat, with the engine still running, and there was a male passenger.

On arrest, Ms Doyle was incoherent and unsteady on her feet. She gave a false name and, when told there was no person of that name at the address she had given, she gave her correct name. Ms Doyle was the owner of the car and, when asked at the Garda station, confirmed that she had been driving. The passenger claimed that he had been driving.

She was charged with dangerous driving charges, failing to remain at the scene of an accident (which refers to an alleged collision in the car park), and driving without a licence or insurance.

CCTV footage

The legal issue concerned the accidental deletion of footage of part of that chase, obtained from CCTV cameras installed to monitor the car park of the hotel.

The prosecuting guard sought CCTV evidence from the hotel and he viewed it himself before downloading it. It was deleted in error as efforts were being made to download it. Having viewed the footage, the garda witness told the District Court judge what he had seen. The Avensis could be seen entering the car park, colliding with a parked car and exiting, followed by his garda car which had appeared in the footage moments later. No driver was identifiable in the footage.

The District Court judge found as fact that the missing footage did not contain anything of evidential value that could assist Ms Doyle in the case. He asked if, having so found, he was correct in finding that Ms Doyle was not at a serious or unavoidable risk of receiving an unfair trial, taking into account the concessions made by the prosecuting guard and the admissions made by Ms Doyle.

Ms Doyle argued that the High Court may not be bound by the question as framed by the district judge. In her judgment, Ms Justice Gearty cited Walsh on Criminal Procedure, 2nd edition: “The general principle is that the District Court judge’s findings of fact underpinning the case stated are conclusive, unless it appears that there is no evidence to support them”.

Ms Doyle argued that the garda could not give evidence of what he had seen on the CCTV if the CCTV was not available. Ms Justice Gearty held that the best evidence rule does not mean that a witness cannot describe what she has seen on CCTV footage, even if that footage is lost. She cited McGrath on Evidence, the best evidence rule “has fallen into desuetude and has no continuing vitality in Irish law as an independent rule of admissibility”.

The judge said that CCTV footage evidence is real evidence, and not hearsay evidence, and noted the judgment of Mr Justice McKechnie in DPP v McD (A) [2017] 1 ILRM 176. The testimony of a witness who has viewed CCTV footage may be admissible as evidence of what she has seen. This will depend on the circumstances of the case, and it may or may not be fair to adduce it in all the circumstances of an individual case, but it is not inadmissible per se.

Conclusion

The court held that the lost footage evidence was not material to the defence advanced at trial, nor was there any culpability in its loss. Ms Justice Gearty said there was ample and cogent evidence of most, if not all, of the offences charged without any reference to the footage evidence. “No purpose is served in ruling that the trial should not proceed.”

Ms Justice Gearty held that the district judge was entitled to find, having heard the evidence given by the garda, that the footage itself would not have assisted the defence. “The question which then arose was whether, having so found, the judge was correct to find that there was no serious risk of an unfair trial and the answer to that question is clearly, yes, in the circumstances of this case he was correct to so find.”