High Court of Ireland Decisions

THE HIGH COURT

[2002 224 J.R.]

BETWEEN

IAN CONNOLLY

APPLICANT

AND
THE DIRECTOR OF PUBLIC PROSECUTIONS AND THE JUDGES OF THE METROPOLITAN DISTRICT COURT

RESPONDENTS

JUDGMENT of Ms. Justice Finlay Geoghegan delivered the 15th day of May, 2003.

The applicant in these proceedings was charged that on the 26th January, 2002, he unlawfully used a mechanically propelled vehicle without the lawful authority of the owner contrary to s.112 of the Road Traffic Act, 1961 (as amended). He was also charged that on the same day he committed criminal damage to a garden wall at 17 Croftwood Gardens, Ballyfermot, contrary to s. 2 of the Criminal Damage Act, 1991.
The applicant seeks from this court an order of prohibition preventing his trial on the said charges.
Leave was granted by this court (McKechnie J.) on the 1st July, 2002, pursuant to an application made on that day to seek such orders of prohibition upon the grounds set out at para. E (i) of the statement of grounds dated the 26th April, 2002.
The grounds relied on may be summarised as follows:

(1) The applicant cannot get a fair trial because he has been wrongfully deprived of the opportunity of examining the car in question with a view to obtaining fingerprint evidence which, it is contended, would

-2-

show or could tend to show that he was not in fact in the said motor vehicle.

(2) That, as this is a case which relies only upon identification evidence by the gardai, they are under an obligation to offer the applicant an opportunity to examine the car, or alternatively, to carry out a forensic examination of the car themselves so as to preserve evidence which might have been of relevance to the guilt or innocence of the applicant.

BACKGROUND FACTS

The facts which give rise to this application are set out in the affidavit of the applicant's solicitors, Anne Fitzgibbon, the statement of grounds and the affidavit of Garda Noel Walsh.
On the 26th January, 2002, early in the morning Garda Nash and a Garda McKenna who were in the Ballyfermot patrol car got a report of a car being driven dangerously near Croftwood Gardens in Ballyfermot. When they arrived at the scene Garda Nash states that they observed a youth in the car who subsequently jumped out, the car continued to roll down hill and ultimately rolled into the boundary wall at No. 17 Croftwood Gardens. Garda Nash states that the same youth which they had observed from approximately fifteen feet ran out of the car and into the driveway of the house at No. 16 Croftwood Gardens and hid behind a car parked in the driveway of that house. Garda Nash states that he went to the youth in the driveway and arrested him. The youth identified himself as the applicant herein and gave his address and date of birth.

The next day on the 26th January, 2002, the applicant was charged with the offences referred to above.

-3-
On the 26th January, 2002, the owner of the car reported a stolen car. It was stated by Garda Nash that there did not appear to be any damage to the car as a result of the impact with the wall. The owner, it is stated, was anxious to recover possession of her car as she had no other means of transport available to her at the time. It was returned to the owner on the morning of 27th January, 2002, without any forensic examinations having been carried out.
On 8th February, 2002, the applicant appeared in Kilmainham District Court where the charge sheets were produced, legal aid was assigned and the applicant remanded to 1st March, 2002.
On 20th February, 2002, the solicitor assigned to the case wrote to Garda Nash seeking from him a copy of the charge sheet, a precis of the evidence against the applicant and all statements in the case.
On 22nd March, 2002, having received the charge sheets and a precis of the evidence, the applicant's solicitor wrote to Garda Nash seeking results of the forensic examination of the car and in particular any fingerprint tests which were carried out. She also stated that she wished to have the vehicle examined by a forensic expert and an expert in the field of fingerprinting.
On 25th March, 2002, Garda Nash telephoned Ms. Fitzgibbon and stated that no forensic examination of the car was carried out because both he and his colleague had seen the applicant in the car. He also informed her that the car had been given back to the owner the following morning. Further that the only damage done to the car was to the inside of the car under the steering wheel.
On 26th April, 2002, the statement of grounds relied upon herein appears to have been finalised and the grounding affidavit of Anne Fitzgibbon sworn and filed in the Central Office. The statement of grounds states that the District Court
-4-

proceedings are set for hearing on 5th July, 2002 and the applicant intends to plead not guilty. Ms. Fitzgibbon states that her instructions are that the applicant was not in the car.

On the lst July, 2002, an application for leave was made based upon the statement of grounds and affidavit of 26th April, 2002. In the course of the hearing I was informed by counsel that an attempt had to be made to move the application one week earlier.

Delay

The first point taken by the respondents is that the applicant has not complied with his obligations under Order 84 Rule 21 (1) of the Rules of the Superior Courts which provides:-

"An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, or six months where the relief sought is certiorari, unless the Court considers that there is good reason for extending the period within which application shall be made."

It was submitted that it is common case that the applicant's solicitor was informed on 25th March, 2002, that the car had been returned to the owner without any forensic examination or the taking of fingerprints and was not now available to the applicant for examination. The papers to move the application appear to have been finalised on the 26th April, 2002. It was submitted that by not making the application until 1st July, 2002, the applicant had failed to act "promptly" within the
-5-

meaning of the rules and had also failed to make the application within three months from the date when the grounds first arose i.e. 25th March, 2002.

It was further submitted that in the absence of the any evidence explaining the delay that the court cannot exercise its discretion to extend the period under Order 84 Rule 21 (1). In this connection reliance was placed upon the decision of Barr J. in Solan v. DPP [1989] I.L.R.M. 491 where at p. 493 he stated

"In the absence of evidence explaining delay, there is no basis on which the court can exercise its discretion to grant an extension of time for making the application."

Reliance was also placed upon the general statement of principle in relation to Order 84 Rule 21 by Costello J. in O'Donnell v. Dun Laoghaire Corporation [1991] I.L.R.M. 301 at p. 315

"What the plaintiff has to show (and I think the onus under O 84 r 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay."

Finally, while it was acknowledged that the courts, and in particular the Supreme Court, have been reluctant to preclude a person making an application for an order of prohibition upon the grounds that there is a risk of an unfair trial in circumstances such as this, there are cases where the courts have refused an application for an order of prohibition in respect of an allegedly potential unfair trial. I was referred to the decision of Kearns J. in Redmond v. Director of Public Prosecutions (Unreported, High Court, 30th October, 2002) and the judgment of the Court of Criminal Appeal in Director of Public Prosecutions v. PO'C (Unreported, Court of Criminal Appeal, McCracken J., 20th January, 2003).
-6-
Whilst it is true that the courts are slow to refuse to entertain an application for judicial review seeking to prevent a criminal trial where the allegation is that there is a serious risk of an unfair trial upon grounds of delay in bringing the application, on the facts of this case I am forced to conclude that the applicant has failed to apply for judicial review promptly and has not put forward any evidence to the court upon which such delay could be excused and the time extended. I am particularly influenced by the fact that it appears that both the statement of grounds and the grounding affidavit, which refer to a District Court hearing date of 5th July, 2002, were finalised and filed on 26th April, 2002 and no step was taken to apply to court until approximately two months later and within two weeks of the trial date. Further, that there is no explanation (other than in relation to one week) for such delay.
In case this matter should go elsewhere and I am considered to have wrongly refused to entertain the application for judicial review I also propose now considering the merits of the application.

The law

The principles according to which this application must be determined have recently been considered by the Supreme Court in three cases: Braddish v. DPP [2001] 3 IR 127; Dunne v. DPP [2002] 2 ILRM 241 and Bowes v. DPP (Unreported, Supreme Court, 6th February, 2003).
In Bowes v. DPP (Unreported, Supreme Court, 6th February, 2003), Hardiman J. (with whom the other members of the court agreed) approved of the "general principle" applying to applications to prohibit a criminal trial as set out by the Supreme Court in Z v. DPP [1994] 2 I.R. 476 at 506 as follows:
-7-

"[The] onus of proof which is on an accused person who seeks an order prohibiting his trial on the grounds that circumstances have occurred which would render it unfair is that he should establish that there is a real risk that by reason of those circumstances ... he could not obtain a fair trial."

Of the above passage and one other to which I refer below Hardiman J. in Bowes v. DPP (Unreported, Supreme Court, 6th February, 2003) stated at p. 16

"I entirely agree that the judgment of Finlay C.J. cited by the respondent correctly expresses the criteria to be met on applications such as the present. It is also manifestly true that the focus in any such application must be on the fairness of the eventual trial, and not on the discovery of shortcomings in the investigative process except insofar as they impact on the prospects of an unfair trial."

The further clarification in Z v. DPP [1994] 2 I.R. 476 cited in Bowes v. DPP (Unreported, Supreme Court, 6th February, 2003) is also from the judgment of Finlay C.J. at p. 507 where he stated :-

"[A]n onus to establish a real risk of an unfair trial ... necessarily and inevitably means an unfair trial which cannot be avoided by appropriate rulings and directions on the part of the trial judge. The risk is a real one but the unfairness of trial must be an unavoidable unfairness of trial."

It does not appear to me on the facts of this case that it is relevant to consider whether there are appropriate rulings or directions which might be given by the district judge which could avoid the alleged unfairness of the trial. This is a "lost evidence" case and appears to come within the observation of Hardiman J. at p. 16 in Bowes v. DPP (Unreported, Supreme Court, 6th February, 2003)
-8-

"However, where evidence has been lost to a defendant by reason of delay in prosecuting or loss or destruction by the State, one can only speculate about what its contents might have been. It is extremely difficult, perhaps impossible, to devise a basis on which this entirely speculative element can be incorporated, fairly to both sides, in a trial based on existing evidence."

The alleged real risk that the applicant in this case cannot obtain a fair trial before the district judge is that he has been deprived of the opportunity of having the car forensically examined and in particular fingerprints taken. The applicant's solicitor states that her instructions are that the applicant was not in the car on the evening in question. It is submitted that if fingerprint evidence were taken this could establish or tend to establish innocence.
The Supreme Court in the authorities referred to above has approved the statement of principles by Lynch J. in Murphy v. DPP [1989] I.L.R.M. 71 on the obligations on the authorities in relation to the seeking and preserving of relevant evidence where he stated

"The authorities establish that evidence relevant to guilt or innocence must insofar as is necessary and practicable be kept until the conclusion of the trial. These authorities also apply to the preservation of articles which may give rise to reasonable possibility of securing relevant evidence."

In this case the alleged relevant evidence is the potential evidence of fingerprints in the car following a forensic examination. In relation to the first submission that the gardai were under an obligation pursuant to the above principles to preserve the car so as to give the applicant the opportunity of securing the relevant fingerprint evidence the following dates are of importance. The alleged offence occurred on 26th January, 2002. The first request to have the car examined
-9-

forensically was made on 20th March, 2002. As appears from the affidavit of Garda Nash, the car was not damaged in the incident; the owner from whom it had been wrongfully removed had no other means of transport available to her and was anxious to recover possession of her car. In such circumstances it does not appear to me that it can be said to be practicable within the meaning of the above principle for the Gardai to keep the car in its possession for a period of approximately two months. This application on its facts is distinguishable from the facts in Murphy v. DPP [1989] I.L.R.M. 71. In that case at the time the request was made by the applicant's solicitor to the gardai to examine the car it was still in the possession of the gardai.

The second submission on behalf of the applicant is a submission that the gardai were obliged to seek out and preserve the fingerprint evidence prior to returning the car to its owner. This submission arises from what was stated by Hardiman J. in Braddish v. D.P.P. [2001] 3 IR 127 at 133, albeit acknowledged in Dunne v. D.P.P. [2002] I.L.R.M. 241 at 258 to be obiter:-

"It is the duty of the gardai, arising from their unique ... role, to seek out and preserve all evidence having a bearing or potential bearing on the issue of guilt or innocence."

Of the statement of principle Hardiman J. in Dunne v. D.P.P. [2002] I.L.R.M. 241 at 258 having acknowledged that it was obiter in Braddish v. D.P.P. [2001] 3 IR 127, then stated

"I would, however, repeat that view in the present case, where of course it is central to the resolution of the issue, and not obiter. It must of course be read in the context of the limiting statement also to be found in my judgment in Braddish [at p. 135]:

-10-

"It would be difficult to think of evidence more directly relevant than a purported video tape showing the commission of the crime. But in cases where the evidence is not of such direct and manifest relevance, the duty to preserve and disclose has to be interpreted in a fair and reasonable manner. It must be recalled that, in the words of Lynch J., the duty to preserve evidence is to do so 'so far as is necessary and practicable'. 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."

In the absence of a limitation such as this, there might indeed be ground for apprehension that, as Fennelly J. expresses it '...where an accused person is in a position to show that the gardai have failed to seek evidence which would have had a potential bearing on the innocence of the accused, that will suffice to meet the test of a real and serious risk to a fair trial.'
I do not think that this is so. The emphasis, which is quite explicit both in Braddish and in this judgment, on the need for the obligation to seek out, and indeed to preserve, evidence to be reasonably interpreted requires, I hope, that no remote, theoretical or fanciful possibility will lead to the prohibition of a trial."
In Dunne v. D.P.P. [2002] I.L.R.M. 241, at issue was a charge in respect of a robbery which took place at a filling station in January 1998. The applicant did not come under suspicion until March, 1998, when he was detained under s. 30 of the
-11-

Offences Against the State Act. It was alleged that the applicant signed a statement of admission though this appears to have been subsequently disputed. In August, 1998, the applicant was charged with the robbery.

The evidence was that the filling station in question maintained a video camera which would have recorded the robbery. The owner of the station had sworn an affidavit stating that he had not been asked for the video by the gardai and it was now no longer available. Hardiman J. characterised the lost evidence in the following terms at p. 259:-

"On the evidence in the present case it is overwhelmingly likely that a video camera recorded the actual conduct of this robbery by its unmasked perpetrators. In those circumstances it appears to be not a possibility or even a mere probability, but a mere certainty, that the video tape would indeed constitute evidence bearing vitally on the question of guilt or innocence."

As appears from the foregoing, the duty on the gardai to seek out evidence must be interpreted realistically on the facts of each case. The relevant facts of the present case as gleaned from the affidavit of Garda Nash are as follows:

"(3) Between 6 am and 2 pm on January 26th, 2002, I was the observer in the Ballyfermot patrol car with Garda Karl McKenna as driver. At about 06.40 we received a report that a motor vehicle was being driven dangerously at Croftwood Gardens, Ballyfermot. We drove into Croftwood Gardens where both Garda McKenna and I observed a youth in the driver's seat of motor vehicle registration number 91 D 25490. The vehicle was being driven on the brow of a hill on a green area that divides Croftwood Gardens and Croftwood Drive. At this stage we were about 15 feet from the vehicle. There were no other

-12-

persons in the vicinity. When the youth observed us he jumped out of the car which continued to move slowly. He proceeded to run alongside the car, which continued to roll downhill at a speed of approximately 10 miles per hour. The youth then ran into a driveway of a house at number 16 Croftwood Gardens and hid behind a car parked in the driveway of a house at number 16 Croftwood Gardens and hid behind a car parked in the driveway of that house. The car which the youth had been driving rolled into the boundary wall at number 17 Croftwood Gardens. The vehicle knocked against a wall about three foot in height and about twelve foot in length. Throughout these events the youth was visible both to me and to Garda McKenna and at no stage did we lose of sight of him.

(4) I descended from the patrol car and approached the youth. I arrested him. He identified himself as Ian Connolly of 25 Croftwood Grove, date of birth September 15th 1983. I cautioned him to which he made no reply. I called for assistance, which was provided by Gardai Jack Swan and Padraig O'Malley, who arrived at the scene and remained with the stolen vehicle. Garda McKenna and I conveyed the applicant to Ballyfermot Garda Station. Contact was made with a Mr. Joe O'Toole of Rathcoole, Co. Dublin, an authorised agent for the towing of vehicles. He arrived and transported the vehicle to his yard. In the meantime the owner of the vehicle had contacted Ballyfermot Garda Station to report the vehicle stolen.

-13-

(5) The applicant was charged in my presence as indicated at the first paragraph of this affidavit. At no stage whilst he was in custody did he request the attendance of a solicitor.

(6) I say that no forensic inspection was conducted on motor vehicle registration number 91 D 25490 for the following reasons. First, both Garda McKenna and I did not lose sight of the applicant at any time between when we observed him sitting in the driver's seat at Croftwood Gardens and his arrest. Second, such an examination would have required detaining the vehicle for fifty hours at least. The owner had no other means of transport available to her at the time and was anxious to recover possession of the vehicle that had been unlawfully taken from her. It was accordingly returned to her on the morning of January 27th, 2002. I should add that the vehicle did not appear to be damaged as a result of the impact with the wall. This was because it was rolling down a hill at the time and was not being driven at speed. Furthermore, I say and am informed by Mrs. Kathleen Dunne, who resides at 17 Croftwood Gardens, that it takes little force to knock down the wall in question and that this is a regular occurrence in the area when stolen vehicles collide with these walls."

The applicant has sworn no affidavit in the proceedings. He is of course entitled to the presumption of innocence and his solicitor has sworn an affidavit in which she has stated that her instructions, of which she informed the gardai on 25th March, 2002, were that the applicant was not in fact in the car. That was the first occasion on which it was alleged the gardai were informed of such a contention.
-14-
If the facts of the case were that the gardai had arrested the applicant whilst actually in the car then I do not think it could be suggested that the gardai were under any duty to seek fingerprint evidence from the car before returning it to an owner. At the other end of the scale, if gardai, having received a report of the stolen car, found the car, did not see any person actually in the car and arrested and charged a youth who happened to be nearby and immediately stated he was not in the car then they probably would be under a duty to seek fingerprint evidence.
The facts of this case fall between these two extremes.
I have concluded that applying the duty to seek out evidence in accordance with the principles determined by the Supreme Court to the facts of this case that the gardai were not under a duty to preserve the vehicle and seek fingerprint evidence before returning it to its owner. I have reached this conclusion principally as the unchallenged evidence of Garda Nash is that he saw the applicant in the car and kept him in vision between that point in time and the point in time when he arrested him. Further that having been arrested and cautioned the applicant made no reply and throughout the period in custody did not request a solicitor. In circumstances such as this, where gardai arrest and charge a person, whom they consider they have seen in a stolen car; such person gives no indication that he was not the person in the car and the owner of the car is seeking its immediate return as she has no other transport, it does not appear to me that it is "necessary and practicable" to preserve the car for a further fifty hours and obtain finger print evidence.
Accordingly, I would also refuse this application on its merits.