Two Portlaoise men charged with robbing a shop with a knife were found not guilty by direction of the trial judge, following a circuit court ruling in which garda recognition evidence of the two accused was ruled inadmissible.
Before the recent Portlaoise Circuit Court were Patrick Lawless, 36, of Oakleaf Place, and Brendan Tuohy, 29, of 34 Lake Drive, Kilminchy, Portlaoise, charged with robbery, at the Borris Road, Portlaoise, on June 23, 2018.
State barrister, Mr Will Fennelly outlined the State’s case.
Two males, one armed with a knife, entered the ToTu Polish shop on the Borris Road at around 5.30pm, with their hands covered and wearing balaclavas. They robbed money from the till and fled the scene, heading up the Borris Road.
CCTV footage was canvased from the area, which showed two people walking to the Borris Road before the incident and turning into a laneway opposite Martleys Shop, where they changed their clothes and headgear.
Mr Fennelly said that these two individuals were caught on CCTV at St John’s Square. They can be seen going down the Borris Road, changing their clothes and then committing the robbery.
A State’s witness who worked in Martleys Newsagents gave evidence that she saw two men going over the wall of the house across the road and one of them put something over his head.
The shop assistant at the Polish shop gave evidence, through a translator, that two masked men entered the shop when she was working. One of the men was tall with a slim build and yellow-orange top and he had something metal in his hand, like a small knife.
She said she got the impression the other man also had something in his hand. She said she was frightened and terrified and was in shock during the robbery.
A third state witness, a woman who was a customer in the shop at the time, gave evidence that during the robbery there was a mother with two small children also present. The witness said that she and the mother waited at the rear of the shop with the children until the men left.
She told the court she couldn’t see the men, but that they sounded Irish.
Garda evidence was given to the court concerning the gathering of CCTV footage, and the identification of the accused by a number of gardaí.
However, an application was made by the counsel for the two accused, Ms Fiona Murphy SC and Mr Dwyer SC, to exclude the garda recognition evidence, as fair procedures were not employed in the gathering of this evidence.
After listening to a lengthy submission, Judge Keenan Johnson acceded to the application.
“The court is concerned at the absence of a paper trail in respect of the gathering of the recognition evidence in this case,” said Judge Johnson.
He described as “quite extraordinary” the fact that there were no contemporaneous notes of the times when each of the three gardaí who were providing recognition evidence viewed the CCTV, nor of the observations that they made at the time they viewed the footage.
Judge Johnson said that the defence barristers had indicated that the absence of such documentary evidence made it difficult to test the evidence, and as fair procedures were not followed the evidence should be inadmissible.
“While it is not suggested that there has been collusion between the gardaí in this case, nevertheless the old adage that justice must not only be done but be seen to be done applied here.”
He said that best practice dictates that at a minimum the garda in charge of collecting the CCTV footage and protecting it should not be part of the investigating team, and should be independent of the inquiry.
The judge said that there was a failure to observe fair procedure in this case.
“Therefore, it is with a degree of regret that I must determine that the recognition evidence be ruled inadmissible,” he said.
“In making this determination, I want to make it clear that I am not criticising the gardaí involved, I accept that each of them acted diligently and honestly. I further accept that they were all under pressure with time constraints,” he said. “However it is abundantly clear that a protocol should be put in place by garda management which ensures that fair procedures are adhered to when evidence is being gathered and in particular visual identification evidence by members from CCTV footage.”
Judge Johnson said many people may feel this judgement is harsh, however a justice system without fairness will give rise to multiple instances of miscarriages of justice.
The verdict was not guilty by direction of the trial judge.
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