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Cite as: [2005] IEHC 69

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Neutral Citation No: [2005] IEHC 69

THE HIGH COURT

[2002 Rec. No. 616 JR]

BETWEEN

CIARAN SAVAGE

APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

EX-TEMPORE JUDGMENT of Quirke J. delivered on the 8^th day of March, 2005.

By order of the High Court (Murphy J.) dated 2^nd October, 2002, the applicant was granted leave to seek relief by way of Judicial Review comprising an order prohibiting the respondent from prosecuting the applicant in respect of two offences namely;

1. Unlawful use of a mechanically propelled vehicle without the consent of the owner contrary section 112 of the Road Traffic Act 1961 as amended and

2. Driving a vehicle in a public place in a manner which was dangerous to the public and which caused serious bodily harm to another person, contrary to the provisions of s. 53 (1) of the Road Traffic Act, 1961 as amended.

FACTUAL BACKGROUND

1. In the early hours of 3^rd June, 2001 a red Mazda motor vehicle apparently went out of control at the old Kilimainham Road, Dublin 8.and a road traffic accident occurred. A Ms. Debbie Mulhall who was a passenger in the vehicle received serious injuries from which she died on 22^nd November, 2001.

It is alleged that the applicant was the driver of the motor-vehicle on that occasion.

2. Gardaí Mark Murphy and William Geraghty saw the vehicle being driven in an erratic manner just prior to the crash. Both were of the opinion that it was being driven at speed and that the driver had lost control of the vehicle.

3. The applicant was found after the collision lying across the front seat of the car with his lower limb trapped under the pedals of the vehicle. The late Ms. Mulhall had been thrown from the vehicle and was found some distance away.

4. The owner of the vehicle who was a French national (Monsieur Boucher) confirmed that the vehicle was stolen on 1^st June, 2001. He said that he did not report it as stolen because it was in such a defective condition that it had no value.

5. On 28^th June, 2001 the applicant was served with a Notice of Intention to prosecute him under the Road Traffic Act in respect of offences allegedly committed arising out of the incident. He was then in hospital recovering from injuries including head injuries a dislocated hip, two punctured lungs and a number of broken limbs. He was discharged from hospital on 10^th July, 2001 and thereafter required treatment by way of medication and otherwise.

6. After the accident the vehicle was towed to Kevin St. Garda Station. It was examined on 13^th June, by a Public Service Vehicle Inspector attached to An Garda Siochána.

A few days thereafter it was examined by a Sergeant Colm Finn (apparently for the purposes of establishing the speed at which it had been travelling). On 25^th July, 2001 the car was destroyed.

On 22^nd November, 2001 Ms. Mulhall died somewhat unexpectedly from respiratory failure. On the same date the respondent applied for summonses. These were made returnable for 27^th February, 2002. The summonses charged the applicant with various summary offences including the (i) unauthorised use of the vehicle, (ii) dangerous driving and (iii) insurance and other road traffic offences.

Later the respondent decided that an indictable charge should be preferred against the applicant (in respect of dangerous driving causing serious bodily injury).

When that charge was preferred against the applicant jurisdiction was refused by the District Court and the matter was returned to the Dublin Circuit Criminal Court on 15^th May, 2002.

7. On the 16^th July, 2002, the applicant's solicitor sought the facility to inspect the vehicle. On 30^th July, 2002 the respondent informed the applicant's solicitors that the car had been destroyed.

8. On 2^nd October, 2002 the applicant sought the relief which is sought herein.

9. In an affidavit sworn on 3^rd April, 2003 Garda Bernard Mackey averred that the summonses which he applied for on 22^nd November, 2001, related to the unauthorised use of the vehicle and to other offences triable summarily.

He continued:

"in the light of the death of Ms. Mulhall on 22^nd November, 2001, the possibility of a prosecution on indictment and directions were received in relation to a further charge of driving causing serious bodily harm."

THE LAW

In Murphy v. Director of Public Prosecutions [1989] I.L.R.M. 71 the High Court (Lynch J.) held inter alia:

"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 the reasonable possibility of securing relevant evidence…an accused person must be afforded every reasonable possibility to inspect all material evidence which is under the control and power of the prosecuting authorities in order, adequately to prepare his defence."

The duty was restated in the case of Braddish v. Director of Public Prosecutions [2001] 3 IR 127 when the Supreme Court (Hardiman J.) declared that:

"It is the duty of the Gardaí, arising from their unique investigative role, to seek out and preserve all evidence having a bearing on the issue of guilt or innocence this is so whether the prosecution proposed to rely on the evidence or not, and regardless of whether it assists the case the prosecution is advancing or not…it is important to bear in mind that the evidential items to which the foregoing applies are not only those with a direct and established evidential significance but include those which in the words of Lynch J., 'may give rise to the reasonable possibility of securing relevant evidence'."

However, in Dunne v. Director of Public Prosecutions [2002] 2 IR 305 the Supreme Court (Hardiman J.) warned that:

"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…a duty so qualified cannot be precisely or exhaustively defined in words of general application….the duty must be interpreted realistically on the facts of each case…".

Mr. O'Malley on behalf of the respondent relies upon the decision of the Supreme Court (Unreported) 9^th April, 2003, in the case of McKeown v. Judges of the Dublin Metropolitan District Court and in particular the following passage:

"Just as there is an obligation on the Gardaí to make evidence available to an accused, there is also an obligation on the accused to seek such evidence. The accused and his advisors knew on the day after the incident, that the car, which they knew to be the property of a third party, was in the hands of the Gardaí and presumably would have been returned to the owner. They made no request for some ten months at a time when they must have known that it was no longer retained by the Gardaí."

That was a case in which the applicant was charged with the unauthorised use of the vehicle. The applicant waited ten months before requesting facilities to conduct forensic tests upon the car. By that time it had been returned to its owner.

Mr. O'Malley points to the fact that in the instant the case the applicant's advisors did not seek facilities to examine the vehicle until more than a year after the incident which has given rise to the charges and more than a year after the Notice of Intention to Prosecute had been served upon the applicant.

I have no doubt that the McKeown case (and subsequent authorities) have established a clear obligation upon accused persons (as well as prosecuting authorities) to take reasonable steps to preserve evidence which they believe to be relevant to the case which they wish to advance in their defence.

There clearly is such an obligation upon accused persons.

However, in the instant case I am satisfied on the evidence that the applicant was seriously injured and was in fact receiving treatment from the date of the road traffic accident until the date when the vehicle was destroyed. For that reason he did not seek or obtain the legal advice which would have enabled him to discharge the duty which has been identified in "McKeown" and the other authorities referred to.

In the circumstances then the issues which I have to determine are:

(1) Whether or not the vehicle itself, in its physical form, comprised evidence which was relevant evidence to the offences with which the applicant has been charged and if so

(2) Whether or not an explanation has been provided by the respondent for the absence of the evidence.

(3) If so does the explanation establish that the evidence has no real bearing on the guilt or innocence of the applicant and

(4) In particular and as an overriding consideration whether or not the applicant has discharged the onus of proving on the balance of probabilities that by reason of the absence of the evidence he will be subjected to a real and serious risk of an unfair trial.

1. Relevance

The Notice of Intention to Prosecute in this case includes an allegation that the applicant

"…did drive the above registered vehicle while the vehicle was seriously defective..".

It follows from that fact that the vehicle, in its physical form, was relevant to the issue to be determined at the trial of the applicant in respect of the charge preferred against the applicant of the offence contrary to the provisions of s. 53 of the Road Traffic Act.

Mr. O'Malley did not seriously dispute the fact that the vehicle (or what remained of the vehicle) comprised evidence which was relevant to the issues be determined at the trial of the applicant.

2. The explanation offered.

The explanation offered by the respondent for the destruction of the vehicle was that it was destroyed "in the ordinary way".

This explanation has been expanded by evidence from Garda Mackey which disclosed that it had been the intention of the respondent to prosecute the applicant in respect of road traffic offences triable summarily. In such circumstances the preservation of the vehicle after examination by forensic experts would have been unlikely to have been required.

However when the late Ms. Mulhall died unexpectedly the gravity of the circumstances required that the applicant be charged with a more serious offence. By then, however, the vehicle had been destroyed and was no longer available for inspection on behalf of the applicant.

In Scully v. Director of Public Prosecutions (Unreported High Court November 21^st 2003) the High Court (Kearns J) observed that

"… 'where evidence has either not been obtained or been lost, which it is contended might have some relevance in establishing guilt or innocence, the court should not too quickly yield to an application to prohibit a trial and indeed should not accede to such an application where an explanation is forthcoming for the absence of the evidence and that explanation establishes to the satisfaction of the court that the evidence or material could have no possible bearing on the guilt or innocence of the accused'. . . . On it being established that there is no actual prejudice to an applicant there is, in my view, no basis for prohibiting a trial. The judgement and the recent decision of the Supreme Court in McKeown reinforces my own view that some sort of common sense parameters of reasonable practicality must govern any determination of the scope of the duty on the Gardai when seeking out or preserving evidence. This must of necessity imply that some margin of appreciation be extended to Gardaí when investigating crime to determine what they may reasonably consider to have some possible relevance in establishing guilt or innocence."

In the instant case although the applicant cannot be faulted for not seeking inspection facilities in the immediate aftermath of the collision it is of significance that his advisors did not seek the opportunity to inspect the vehicle until 16^th July, 2002. This was some eight months after the death of the late Ms. Mulhall and more than five months after the more serious charge had been preferred against the applicant. The applicant's advisors did not consider a forensic examination of the vehicle to have been warranted as a matter central to the applicant's defence. I believe that they may have been correct in their assessment.

A further period of eleven months elapsed before the applicant retained the services of Mr. Jordan (from 10^th June, 2003) for the purposes of investigating the allegedly defective condition of the vehicle.

The evidence which will be adduced on behalf of the respondent in support of the charges preferred against the applicant overwhelmingly supports the contention that the vehicle which was involved in the accident which gave rise to the death of Ms. Mulhall was grossly and dangerously defective. That fact is confirmed by the owner of the vehicle Monsieur Boucher. The evidence of the garda expert witnesses who examined the vehicle in Kevin Street Garda Station fully supports that proposition.

The evidence of Mr. Jordan suggests that the vehicle may have been even more defective than the expert gardaí witnesses found upon their examination.

Mr. O'Higgins, on behalf of the applicant, has emphasised the fact that the expert garda witnesses have not challenged Mr. Jordan's findings. The respondent has indicated that in the light of the applicant's concerns he will not rely upon the evidence of the expert garda witnesses but will, instead, rely upon other evidence (in particular the evidence of eye witnesses) in support of the charges.

However, the expert garda witnesses are still available to the applicant should he choose to call those witnesses in support of his contention as to the dangerously defective condition of the vehicle at the time of the accident.

I say this because it is contended on behalf of the applicant that the relevance of the vehicle as evidence and in particular its defective condition prior to the accident goes to the applicant's state of mind and in particular his state of knowledge immediately prior to the accident.

He says that the applicant will contend that it was the defective condition of the vehicle which caused the accident and that the applicant could not reasonable have known, and did not know, of its defective and dangerous condition and accordingly did not have the requisite mens rea in respect of the offence with which he has been charged.

The explanation provided by the respondent as to why the destruction of the vehicle was permitted is that the relevant charges to be preferred were intended to be summary in nature and the vehicle had been examined on behalf of the prosecution by expert witnesses in support of the summary charge.

No application had been made on behalf of the applicant for facility to inspect the vehicle and there was no reason why the respondent should anticipate such an application. The evidence was retained for some two months after the event before being destroyed in accordance with normal garda procedures.

It cannot reasonably be suggested that the prosecuting authorities have a duty to preserve all vehicles which are the subject of summary offences under Road Traffic Act. At the time of its destruction this vehicle came within that category. It was only upon the unfortunate death of Ms. Mulhall that the gravity of the offence became apparent.

3 and 4. Bearing on guilt or innocence and "Fair trial"

The fact that an explanation has been provided for the failure to preserve evidence does not discharge the obligation which rests upon the prosecuting authorities to preserve relevant evidence. The explanation must establish also that the failure to preserve the evidence either does not bear upon the guilt or innocence of the accused or that it will not expose the applicant to a real and serious risk of an unfair trial.

In the instant case the applicant has failed to discharge the onus of proving that the failure on the part of the State to preserve the vehicle (or its remains) has exposed him to the risk of an unfair trial.

The applicant relies upon the evidence of Mr. Jordan in support of his contention that the preservation of the vehicle has compromised his capacity to receive a fair trial.

Mr. Jordan's evidence, when analysed, has been confined to the following:-

(a) Alleged failures by the gardaí to carry out measurements, observations and calculations in a proper manner,

(b) Alleged failure on the part of the gardaí to measure and record inflation pressures in the tyres and a similar failure to assess whether there was evidence of possible previous collision damage to the vehicle.

(c) An apparent or potential difference of view between the garda witnesses and Mr. Jordan as to whether or not the steering mechanism of the vehicle was intact prior to the collision and

(d) a similar difference of view as to whether or not the right front tyre deflated as a result of the impact or did so spontaneously prior to loss of control of the vehicle and

(e) general observations and an averment that an examination of the tyre in question might have provided the applicant with

"…The reasonable possibility of adducing expert opinion evidence as to the reasonable possibility that this was the cause of loss of control or the likelihood of such, as opposed to a mere suspicion that such was the case."

In all other respects Mr. Jordan indicated that the garda examination supported his contention that;

"…The vehicle was defective in ways which might reasonably not have been noticed by the driver and which might reasonably have caused or contributed significantly to the causation of the impact."

I am at a loss to discover therefore how the applicant is disadvantaged in making that case by the absence of the opportunity to examine the vehicle.

He will be in a position to adduce evidence by calling Mr. Jordan as an expert witness. He will also be in a position, if he wishes, to call the expert garda witnesses in support of his contention.

An exhaustive analysis of Mr. Jordan's evidence (or proposed evidence) does not disclose how a physical examination of the vehicle would have improved that evidence and that contention.

I am conscious of the fact that Mr. Jordan has averred that he:

"…Could not be satisfied as to the proper functioning of the steering mechanism without examining it and other aspects of the vehicle which could have affected such functioning…"

He also said that information in relation to the measurement of inflation pressures in the tyres and previous collision damage to the vehicle

"…Could have been gleaned from a proper inspection of the vehicle…"

Such averments are general (and perhaps speculative) in nature. They are not, in my view, of sufficient substance, (either alone or with other factors), to comprise evidence of prejudice of the kind which would give rise to the risk of an unfair trial.

The remainder of Mr Jordan's intended evidence appears to comprise a criticism of the failure by the gardaí (a), to carry out measurements and calculations and, (b), to make observations in respect of the scene of the accident. That evidence will be unrelated to the preservation of the vehicle.

In the light of the foregoing I am not satisfied that the applicant has discharged the onus of proving on the balance of probabilities that the failure on the part of the respondent to preserve the vehicle in this case has given rise to a real or serious risk that he will receive an unfair trial. It follows that the relief sought should be refused.

Approved: Quirke J.