#17491 - Evidence Obligation To Seek Out And Preserve Evidence Copy - Evidence I: Foundations

OBLIGATION TO SEEK OUT AND PRESERVE EVIDENCE • • • • • • Who does this burden rest upon? - The gardai They don't have infinite time and resources though, they ant be expected to examine every nook and cranny At least with this burden, its recognised that this is a reasonable burden Advances has made the burden even more onerous - forums w forensic evidence Proliferation of CCTV cameras - opened new corners for Gardai to seek and preserve You can always argue that the Gardai could've done more BraddishFair and reasonable manner of interpretation Cannot require the gardai to engage in a 'disproportionate commitment of manpower and resources in an exhaustive search for every conceivable kind of evidence' Hitchcock 1847• • It might be possible to raise every possible enquiry if we lived for a thousand years but we do not. So, it would be hypocritical to demand the Gardai to do this. Nevertheless, there is a duty to seek out evidence on the Gardai DUTY TO SEEK OUT Dunne v DPP 2002It is the duty of the Gardai to seek out and preserve all evidence that might have a bearing in establishing the guilt or the innocence of the accused Innocence as well is important to remember. Dillon v O Brien aand Davies 1887Guilt OR innocence. R v Dwyer 1925 Lord HewartIt is duty of police to behave with exemplary fairness This obligation falls on the shoulders to potentially establish innocence Must remember that the prosecution has only an interest in securing a conviction Order of prohibition if the Gardai has failed to preserve or seek out evidence; However, The prosecution ceases if the order or prohibition Can stop a prosecution dead in its tracks, not merely an appeal. • • It is REASONABLE It has to be an unreasonable failure to seek and preserve BraddishCannot require the gardai - 'disproportionate commitment of manpower and resources in an exhaustive' pursuit of evidence A must establish: (a) The existence of… (b) OBLIGATION TO PRESERVE • Assuming they have sought or found it, what happens if the evidence is simply not there or gone? Pioneer case: Murphy v DPP 1989 Man charged w various offences, amongst which he was alleged to be the driver of a stolen car. D said he was in the car but was not driving - I did not know it was stolen. So, the D want to engage in a fingerprint analysis of the car. Car had been heavily damaged and taken by an insurance company to assess damage. D said we needed that ar. Gardai said no; this evidence is based on visual ID evidence. They said we are relying on a completely different source of evidence. But this does not negate the defence's reliance on evidence. They are separate anyway.Court recognised an obligation to preserve evidence which was grounded in natural justice Higher form of law used to ground the obligation - 'natural justice' Simply, basic fairness If something could potentially exculpate the person, it should be used. Braddish v DPP 2001 Man charged w robbery - allegedly the robbery had been filmed, so naturally the offence request a copy of the CCTV. 6 months of silence ensues, and the Gardai admit that they gave it back. The prosecution again sought to argue that they were not relying on this anyway. Hardiman J- It is the duty of the Gardai, arising from their unique investigative role, to seek out and preserve all evidence having a bearing or potential bearing on the issue of guilt or innocence Doesn't matter if the prosecution intend or do not intend to use it, if it is of potential use to the defence then the reasonable obligation arises. THE TEST: