IN HIS BOOK 'DRUNKEN DRIVING', David Staunton writes:
“there is a constitutional duty on the prosecution to disclose and make available to the defence any material in [their possession that] could either assist the defence or damage the prosecution”.
This right to ‘disclosure’ (i.e. evidence) is what the Supreme Court regard as a person’s constitutional right to a fair trial. In other words, the State must supply all the evidence they intend to rely on to the defence.
That’s called a “fishing expedition”,
i.e. hoping to strike it lucky by spreading
your net far and wide.
If you’re looking for something
it has to be relevant to the case.
But this defence right to be given disclosure is not unlimited. The defence are not entitled to look for every conceivable item of evidence that they imagine might be useful.
That’s called a “fishing expedition”, i.e. hoping to strike it lucky by spreading your net far and wide. If you’re looking for something it has to be relevant to the case.
What if the defence seek disclosure but the State don’t serve it?
I was involved in a case in Dublin whose trial was due to begin on 18 October. It was a drink driving case. On 18 October I told the judge that in August I had written to the State seeking CCTV footage but had not been provided with it.
The State sought an adjournment to deliver the CCTV.
The judge adjourned the case to 8 January for this purpose.
But the judge also did something else: they changed the status of the case to “peremptory against the State”. This meant that on the next date (i.e. 8 January) the case would proceed or be struck out. No further adjournments would be granted to the State.
On 5 January the State informed me that they could not provide me with the CCTV as it was no longer available.
WHEN WE ARRIVED BACK in court on 8 January the State had a new problem.
One of the Garda witnesses could not be in court as they were performing some other duty. The State could not proceed as the Garda was essential to their case. The State sought another adjournment.
The judge asked me for my views.
I said that this was the second time the case had been listed for hearing. It had been adjourned on 18 October because the State requested it.
I reminded the court that on 18 October the case had been marked peremptory against the State on 8 January. The judge checked their notes and agreed that this was the case.
The judge was not satisfied with the explanation being offered by the State about their missing witness. The judge said that the Garda must have known that the case was marked peremptory against the State.
The judge said that had this been the first time the State were looking to adjourn the case they might oblige. But as it wasn’t, and it was marked peremptory against the State.
The judge struck out the drink driving case.
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