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Cite as: [2001] IEHC 179

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McGrath v. D.P.P. [2001] IEHC 179 (20th December, 2001)

THE HIGH COURT

RECORD NO. 138 JR 2000

BETWEEN

DEIRDRE MCGRATH

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Judgment of Mr. Justice Murphy delivered the 20th day of December, 2001

1. Pleadings

1. The Applicant seeks an Order prohibiting the Respondent from taking up and dealing further with the prosecution of the Applicant on a charge referred in the Book of Evidence served on the Applicant on the 17th of January, 2000.

2. The charge relates to a fatal road traffic accident on the 21st of March, 1999. It is common case that a collision occurred between the Applicant’s car and motor cycle driven by the deceased.

2. Facts

3. On the following day, the 22nd of March, 1999, Garda Anthony McHugh, a P.S.V Inspector, reported on the condition of both car and motor cycle as being in serviceable condition prior to impact.

4. On the 30th of March, 1999 the Applicant was interviewed, cautioned and made a statement. On the 28th of July, 1999 a second statement was made by her.

5. On the 5th of August, 1999 the motor cycle which was damaged beyond repair was, at the request of the deceased mother, taken from the Gardaí to Harry’s motor cycle in Galway. On the 24th of September, 1999 a summons was served on the Applicant under Section 53 of the Road Traffic Act charging her with dangerous driving causing death.

6. On the 1st of November, 1999, when the matter was returnable to the District Court, the Solicitor on behalf of the Applicant informed the Court that he might seek on opportunity to inspect the motor cycle. The Book of Evidence was served and the matter was adjourned.

7. The Applicant’s Solicitor had written to the Gardai on the 20th of October 1999 requesting motor forensic reports on the road, the motor bike and the Applicant’s vehicle. On the 1st of November the Gardai replied stating that a Book of Evidence was being prepared which would contain all the information required. The District Court hearing was adjourned until the 17th of January which was the date set for the service of the Book of Evidence. On the 1st of February the Solicitors for the Applicant asked the Gardai where the motor bike was. On the 7th of February the Solicitor again wrote saying that the Applicant’s forensic engineer, Dr. Mark Jordan, was expected in Galway with a view to locating the locus of the accident and asked the Gardai to inform them of the whereabouts of the motor cycle. By fax of the 9th of February, 2000, Garda Paul Kane stated that the bike was returned to the deceased’s family and then passed on to Harry’s Motor Cycles. The bike, he said, has been broken up for parts and any enquiry into this matter could be answered “by Ray care of Harry’s Motor Cycles”.

3. Evidence of Mr. Marler

8. According to the Affidavit of Blake Marler, who describes himself as a work shop manager employed by Harry’s Motor Cycles, the deceased had left the motor cycle for checking on the 18th of March, 1999, three days before the accident. He later recuperated for the motor cycle from Salthill Garda Station on the instructions of the deceased’s mother on the 5th of August and stored it at the premises of Harry’s Motor Cycles. The motor cycle was preserved intact until mid November 1999 when the engine was removed from it. Subsequently the tyres were removed some time in January, 2000.

9. Mr. Marler says that on the 10th of February, 2000 he spoke with an engineer who advised him he wished to examine the motor cycle. He told him that the engine and tyres had been removed but the engineer confirmed he would attend the following day to carry out the examination. He did not do that and Mr. Marler says that he never heard from him again. Subsequently, the Deponent says, in about May 2000 the motor cycle was stripped down completely.

4. Evidence of Applicant’s Engineer

10. Dr. Mark Jordan says that on the 9th of February he was informed by Mr. Gerard O’Donnell, Solicitor for the Applicant that the motor cycle had been given to Harry’s Motor Cycles and had been broken up for parts. He said that on the same day he contacted the manager of Harry’s Motor Cycles to arrange for an inspection and was informed that the motor cycle had been dismantled and was broken up for parts. He was informed that only some parts were still available. The rest of the motor cycle had been dispersed or disposed of and the whereabouts of the parts was unclear. He says that the disposal of the motor cycle had deprived the Applicant of evidence relevant to the preparation of her defence. He said he was unable to ascertain the collision configuration, the closing impact speeds, to check instrumentation and equipment settings and to eliminate any mechanical condition. He further said he was unable to eliminate that the deceased motor cyclist may have been dazzled or blinded by the sun’s reflection in his mirrors. He was unable to discriminate between damage to the motor cycle caused directly in the primary impact and damage caused by the post impact of the rear of the motor cycle. He says that the condition of the motor cycle, tyre conditions and all other relevant factors would assist him in preparing a report which would be helpful to the Applicant.

5. Applicant’s Submission

11. It was submitted on behalf of the Applicant that the Court should grant an injunction restraining further prosecution of the proceedings as Prosecution is under a duty to preserve all relevant evidence for a criminal trial. The Applicant should have been informed of the Garda’s intention so that she could be given an opportunity to inspect the vehicle prior to its disposal.

12. The consideration which influenced O’Hanlon J. in Rogers .v. DPP and Others [ 1992] ILRM 695 do not apply in the instant case. In Rogers the Court took the view that the owner of a vehicle from whom it had been stolen should have it returned after a reasonable period of time so as not to be, as it were, further penalised. In the instant case, the unfortunate owner of the damaged motor cycle concerned was now deceased. The motor cycle could be sold for parts just as effectively after the criminal process was completed. It is submitted that that case has no application in the within proceedings.

13. It was submitted that the application did not fall into the category of abuse of process as described in the case of Dutton v. DPP (unreported, High Court, 9th July, 1997).

14. In the present case Summons was served on the 24th September 1999 and the Applicant instructed Mr. O’Donnell on the 28th September 1999 by telephone and attended his office on or about the 7th day of October, 1999. The Summons was returnable for the 1st November before Galway District Court and Mr. O’Donnell immediately contacted Counsel who suggested that a Forensic Engineer should be engaged. Thereafter, the Applicant and her advisers acted with expedition and on the first occasion possible, the District Judge was informed by the Applicant’s Solicitor that he wished to retain an engineer to examine the motor cycle. Unfortunately, as is now known, the motor cycle had already been disposed of before the Summons was served.

15. The Applicant submits that she has sustained considerable prejudice as a result of the premature disposal of the motor cycle. The nature of the prejudice, from an evidential point of view, is outlined in the Affidavit of Dr. Mark Jordan. The accident was an extremely traumatic event for the Applicant, especially because of the injuries sustained by the deceased motorcyclist. The Applicant’s memory of events is poor due, presumably, to the traumatic circumstances of the accident.

16. The Applicant, according to the sworn evidence of her psychologist, was, as a result of the trauma, not able to deal with the legal issues ensuing for six months. The forensic examination of the motor cycle should be viewed as all the more important in this context and the loss of potential evidence to the trial all the more grievous. The Applicant suffered prejudice in the sense outlined by Lynch J. in Murphy .v. DPP [1989] ILRM 71 and that the trial should not be permitted by the High Court to continue

17. Reference was made at the hearing to the following additional authorities:-

i Christie v. Leachinsky [1947] AC 573

ii Braddish v. DPP and Anor (Unreported, O’Caoimh 21st December 2000)

iii Daly .v. DPP (unreported, Supreme Court 11th April 1994)

6. Respondent's case

18. The respondent, the Director of Public Prosecutions, denied that there has been any failure on his part to afford a reasonable opportunity to the Applicant to inspect the motor cycle nor to take all reasonable steps to preserve material evidence relevant to the question of the guilt or innocence of the Applicant.

19. The Director further denied that he deprived the applicant of the benefit of any exculpatory evidence that might have resulted from an inspection of motor cycle.

20. At all material times the applicant was aware that she was likely to be prosecuted in respect of the collision that took place on March 21st, 1999. The applicant, her servants or agents, made no request to inspect or examine the motor cycle to February 1st 2000. It is denied that there was or is any duty on the respondent to retain the motor cycle until the conclusion of the applicant’s trial.

21. In so far as the disposal of motor cycle may have deprived the applicant (which is denied), this was the consequence of the applicant’s failure to have had the motor cycle inspected in good time.

22. The respondent has failed to observe fair procedure, either as alleged or at all.

23. It is further submitted that the DPP is not a tribunal vested with jurisdiction to determine the criminal proceedings out of which this application arises. Accordingly the principles of natural justice and/or audi alterem partem do not apply to him in the circumstances therein.

7. Respondent’s Submissions

7.1. Underlying Principle

In Murphy v. DPP [1989] ILRM 71 Lynch J. stated “that the evidence relevant to guilt or innocence must so far as it is necessary and practicable be kept until the conclusion of trial.”

In Braddish v. DPP (Supreme Court, 18th May 2001), Hardiman J. with whom Denham and Geoghegan JJ. agreed, referred to this statement and held that:

“A duty so qualified cannot be precisely or exhaustively defined in words of general application. Certainly it cannot be interpreted as requiring the Gardai to engage in disproportionate commitment of manpower or resources in an exhaustive search for every conceivable kind of evidence. The duty must be interpreted realistically on the facts of each case.”

7.2. Application of principle in other cases

In Murphy v. DPP [1989] ILRM 71 within one month and three days of the commission of the alleged offence the applicant had requested the the vehicle in question be made available for inspection by a forensic expert. Twelve days after that request had been made the vehicle was no longer available for inspection. Lynch J. found that the Gardai had been made aware at an early stage in the proceedings of the applicant’s wish to inspect the motor vehicle that had been in their possession. The applicant’s defence was that was that he had not been driving the vehicle at the time of the collision. No forensic test whatsoever had been carried out on the vehicle. There had been no urgent need to return the vehicle to its owners. The applicant’s opportunity of defending his case had thus been materially effected to his detriment in circumstances where a very expeditious request had been made to inspect the vehicle. The disposal of the vehicle amounted to a breach of fair procedures and the applicant’s trial on the relevant charge only was restrained.

Rogers v. DPP [1992] ILRM 695 distinguished by the Applicant, also involved a prosecution in which the Applicant was alleged to have drive a motor vehicle in an unlawful manner. In that case the Gardai had carried out a forensic inspection of the vehicle promptly after the occurrence of the incident arising from which the charges were laid. The request to inspect the vehicle was made two and a half months after the collision in respect of which the applicant had been charged. O’Hanlon J. took into account the fact that a Garda forensic examination had been carried out promptly. He went on to hold that

“... any forensic examination, whether by the Gardai or on behalf of an accused person, should be sought and should take place within a reasonable time, having regard to all the circumstances of the case ....”

24. He, accordingly, refused to halt the prosecution.

25. It was submitted that the requirement that forensic examinations must be sought and conducted expeditiously has been applied in a number of judgments. Where an examination has not been so conducted the Courts will not stay an applicant’s trial.

26. However, where evidence can be shown to be of “direct and manifest relevance”, e.g. a video tape showing the commission of a crime, the Supreme Court may be willing to relax this requirement. Thus, as Hardiman J. has already observed: “[t]he duty must be interpreted realistically on the facts of each case.” It is submitted that the inquiry to be made by the Court must, save in the clearest of circumstances, take into account all of the circumstances of the case.

7.3 Application of principle to this case

27. The Book of Evidence discloses that evidence of the condition of the vehicles involved in the collision is not crucial to the case against the applicant. The vehicles were inspected on the day following the accident. It was observed that both were in serviceable condition prior to the collision. There is also uncontradicted evidence that the motor cycle had been serviced by a third party some days prior to the collision and that he had not observed that it suffered from any mechanical failure.

28. As for the issues to be determined at the applicant’s trial, there is detailed evidence of the scene of the impact and the location of the vehicles immediately afterwards, statements made by the accused immediately after the collision to third parties and statements made by her to the Gardaí. In that regard the sketch prepared of the scene of the accident indicates that the collision took place well over on the the side of the road opposite which the applicant ought to have been travelling. Paragraph 6 of Dr. Jordan’s affidavit raises a number of hypothesis which, the Respondent submits, do not bring the unavailability of the vehicles for inspection into the category of evidence of direct and manifest relevance in the sense referred to by the Supreme Court in Braddish.

29. It is furthermore submitted that that since sufficient evidence is available as to the circumstances of the collision and the condition of the motor vehicles involved, there is no fundamental unfairness in the applicant’s trial proceeding.

7.4 Delay

30. It is submitted that in these circumstances the Court may take account of the applicant’s admitted delay in seeking to have the vehicle forensically examined when deciding whether the respondent complied with its duty to keep evidence relevant to guilt or innocence until the conclusion of trial.

31. The applicant was formally warned that she was to be prosecuted in March 1999. She was questioned by members of An Garda Siochana in late March and late July 1999. She was served with a summons on September 24th 1999, returnable for November 1st 1999. Notwithstanding this, the first occasion on which a request was made of An Garda Siochana to inspect the motor cycle was on February 1st 2000, i.e. over ten months after the collision.

32. It appears that if the applicant had been more diligent, her advisors could have inspected the motor cycle at any time up until mid-November 1999, i.e. Approximately two months after she had been served with the summons and eight months after the collision. It is thus respectfully submitted that the applicant did not seek the forensic examination with the dispatch incumbent upon her in all of the circumstances.

7.5 In the circumstances it is submitted that the applicant failed to establish that the respondent was in breach of its duties to preserve evidence.

33. Moreover, it is submitted that the Court ought not to lightly intervene or restrain a criminal trial unless there is an unavoidable or inevitable risk that it will be unfair and that that unfairness cannot be avoided by directions and proper charges being given to a jury by the trial judge. It is submitted that the weight to be attached to any possibility that the motor cycle could have provided evidence which have tended to exculpate the applicant is entirely a matter for the trial judge to determine in the context of the evidence adduced at applicant’s trial, if necessary by directing her acquittal.

8. Decision of the Court

8.1 The Court accepts the principles enunciated in R. (Ebrahim) v. Feltham Court (2001) 1 WLR 1293 at paras. 17 and 25-28 (page 1300 et seq), in the context of the jurisdiction of a court to stay criminal proceedings for abuse of process.

17. We think it may be helpful to restate the principles underlying this jurisdiction. The Crown is usually responsible for bringing prosecutions and, prima facie, it is the duty of a court to try persons who are charged before it with offences which it has power to try. Nonetheless the courts retain an inherent jurisdiction to restrain what they perceive to be an abuse of their process. This power is “of great constitutional importance and should be ... preserved”: per Lord Salmon in R. v. Humphrys [1977] AC I, 46D. It is the policy of the courts, however, to ensure that criminal proceedings are not subject to unnecessary delays through collateral challenges, and in most case any alleged unfairness can be cured in the trial process itself. We must therefore stress from the outset that this residual (and discretionary) power of any court to stay criminal proceedings as an abuse of its process is one which ought only to be employed in exceptional circumstances, whatever the reasons submitted for invoking it: see Attorney General’s Reference (No. 1 of 1990) abuse of the court’s process and a breach of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. In these cases the focus of attention is on the question whether a fair trial of the defendant can be had.

25. Two well known principles are frequently invoked in this context when a court is invited to stay proceedings for abuse of process. (i) The ultimate objective of this discretionary power is to ensure that there should be a fair trial according to law, which involves fairness both to the defendant and the prosecution, because the fairness of a trial is not all one-sided; it requires that those who are undoubtedly guilty should be convicted as well as that those about whose guilt there is any reasonable doubt should be acquitted. (ii) The trial process itself is equipped to deal with the bulk of the complaints on which applications for a stay are founded.

26. ... The circumstances in which any court will be able to conclude, with sufficient reasons, that a trial of a defendant will inevitably be unfair are likely to be few and far between. ...

27. It must be remembered that it is a commonplace in criminal trials for a defendant to rely on “holes” in the prosecution case, for example, a failure to take fingerprints or a failure to submit evidential material to forensic examination. If, in such a case, there is sufficient credible evidence, apart from the missing evidence, which, if believed, would justify a safe conviction, then a trial should proceed, leaving the defendant to seek to persuade the jury or justices not to convict because evidence which might otherwise have been available was not before the court through no fault of his. Often the absence of a video film or fingerprints or DNA material is likely to hamper the prosecution as much as the defence.

28. In relation to this type of case Lord Lane CJ said in Attorney General’s Reference (No. 1 of 1990) [1992] QB 630, 644 A-B that

“No stay should be imposed unless the defendant shows on the balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held: in other words, that the continuance of the prosecution amounts to a misuse of the process of the court.”

8.2 The Irish authorities relied on by the applicant relate to direct and manifestly relevant evidence as to fingerprints, video evidence etc. It is clear that in those cases that it would not be fair to proceed with a trial in the absence of such evidence.

34. It was clear in Rogers v. DPP [1992] ILRM 695 that in relation to (relevant) property, any forensic examination, whether by the Gardai or on behalf of the accused person, should be sought and should take place within a reasonable time. Where a forensic examination was carried out promptly by the Gardai and the Applicant did not seek one for two and half months after he had been charged with the offences concerning the driving of the car, there was no breach of fair procedures.

In Murphy v. DPP no P.S.V. examination had taken place.

8.3 In the present case though the Solicitor for the Applicant, on the 1st November, eight months after the commission of the offence had stated that he might require examination, no formal request was made until the end of January, 2000. I have taken into account the evidence of the applicant’s psychologist who states that for a full six months after the incident that the Applicant was not in a position to deal with her legal affairs. It does seem to this Court that this did not preclude an applicant from seeking legal representation and or advice particularly when she was incapable of dealing with the matters herself. In any event the summons was not served for six months and a week later she had legal representation.

8.4 Dr. Jordan says there might have been some relevant evidence. There is some contradiction between his evidence and that of Blake Marler in relation to the appointment for inspections. It may very well be that he was misled by the person he spoke to in Harry’s Motor Cycles. He has not identified the manager. However, according to his Solicitor he was to be in Galway for the 7th of February but decided that it would be pointless to inspect.

35. It is unclear on what basis Dr. Jordan concluded that, not having examined what remained of the motor cycle, the disposal had deprived the Applicant of evidence relevant to the preparation of her defence. This would appear to the Court to be a matter, not of fact, but of law which is best left to the trial.

36. It does seem to the Court that the evidence was that the engine and the tyres had been removed at that stage. It would have been possible to inspect the remainder of the motor cycle to test the hypotheses raised in Dr. Jordan’s Affidavit with regard to the reconstruction of the accident. It is common case, that the PSV inspectors found that the motorcycle and the car appeared to have been in serviceable condition prior to impact.

37. It seems to me that having regard to the principle in R. (Ebrahim) v. Feltham Court and, the decisions of Murphy v. DPP., Rogers v. DPP and Dutton v. DPP and Braddish v. DPP that the Applicant is not entitled to the Order sought. The Applicant has not shown, on the balance of probabilities that she will suffer serious or any prejudice to the extent that no fair trial can be held. Clearly the Circuit Criminal Court can, in due course, deal with any objections regarding the release of the motor cycle and the Trial Judge can consider, if necessary, any warnings in this regard.