The High Court has ruled that photographic evidence must be included with the summons issued to an accused. There must also be evidence that the "permanent visual record" (i.e. photographs(s)) has been given to an accused prior to the trial commencing.
The case was referred to the High Court by District Court Judge Mary Devins after Michael Gilvarry of County Mayo was summonsed for doing 93 kilometres per hour in an 80 kilometres per hour zone in Ballina on October 30th, 2011.
During the case several witnesses were called, including Inspector John McDonald from the Garda Fixed Charge Processing Office. In evidence Inspector McDonald gave an overview of, inter alia, the Office's prosecution works dealing with the capture of information.
In the course of cross-examination Inspector McDonald accepted that a copy of the photographic image should be provided to an accused before the trial began.
The Inspector gave evidence to the existence of a contract between the Minister for Justice, the Garda Commissioner and the Go Safe Company, which was entered into in November 2009. The contract governed the outsourcing of functions from June 1st, 2011. Although he was not in a position to provide a copy of the contract to the Court.
Inspector McDonald also gave evidence that the "permanent visual record" provided by the Prosecution was the same as the original, but admitted that he was not familiar with the process of enhancement.
At the end of Mr. McDonald's evidence Ms. McGregor for Mr. Gilvarry made a total of five submissions.
Ms. McGregor submitted that there was no evidence before the Court that a "permanent visual record" was served on Mr. Gilvarry as required by the 2010 Act. Ms McGregor further submitted that there is no presumption with the 2010 Act that the relevant "permanent visual record" has been served on an accused.
Ms. McGregor submitted that the contract between the Minister for Justice, the Garda Commissioner and the Go Safe Company is the foundation of a number of presumptions relied upon by the Prosecution. Ms. McGregor cited sections 81(2)(ii), 81(6)(a) and (b) as examples.
Ms. McGregor submitted that the contract must be in evidence in order to prove: (i) that the person is authorised (e.g. Derek Walsh, the Go Safe Operator who gave evidence), and; (ii) the extent of the functions. Moreover, as the contract was not in evidence, the Court was not entitled to presume its existence or apply presumptions that might flow from its existence.
Finally, Ms. McGregor submitted that the "permanent visual record" is enhanced after downloading to the server and is therefore tainted as a result.
Judge Mary Devins adjourned the matter until November 2012, when she questioned the Director of the Go Safe Company about the contract. Mr. Browne said that the contract started on November 16th, 2010 and would run until November 15th, 2015.
Having indicated that she was unable to find any precedent dealing with the issues that arose in this case, Judge Devins posed three questions to the High Court.
One, was there evidence before the Court that the photographic evidence was served on Mr. Gilvarry as required by the 2010 Act?
Two, does the prosecution need to provide a copy of the contract between Go Safe and the Minister for Justice or is it sufficient to give evidence of the existence of a contract?
Three, is the photographic evidence tainted because it is enhanced after downloading to the server?
Answering the first question, Mr. Justice Kearns concluded that it is insufficient for a member of the Gardaí to state that it is normally the case that photographic evidence is included with the issued summons:
There must be evidence that it has in fact been given to an accused person before the trail commences. The evidential shortfall can easily be remedied if the statutory declaration of service of the summons were to also state that the summons, together with the "permanent visual record attached", have been served on [Mr. Gilvarry] prior to the trial.On the second question, Mr. Justice Kearns found that it is not a necessary proof for the prosecution to provide a copy of the contract, or to formally prove every detail of the contract between Go Safe and the Minister for Justice. It is merely sufficient that the prosecution call a witness who is familiar with the parts of the contract that indicate that: (i) a contract envisaged by the relevant section was made; (ii) the parties to the contract, and; (iii) that contract is still in existence.
While there was no issue about the quality of the photographic evidence in this case, Mr. Justice Kearns observed that it is not necessary under the 2010 Act to prove that the technology used is accurate or in good working order. However, Mr. Justice Kearns observed that it is open to a defendant, such as Mr. Gilvarry, to give evidence that the photograph(s) furnished to him and submitted to the court were altered.
