Neutral Citation: [2016] IEHC 3
THE HIGH COURT
JUDICIAL REVIEW
[2013 No. 861 JR]
BETWEEN
JOHN O’BRIEN
APPLICANT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
JUDGMENT of Ms. Justice Iseult O’Malley delivered the 12th day of January 2016
Introduction
1. This application for injunctive relief in respect of a pending prosecution concerns the circumstances in which the applicant came to exit a garda car while it was in motion. The applicant, who was under arrest on suspicion of drunk driving at the time, says that the door came open and he fell out. The gardaí say that he deliberately opened the door and jumped out. On that basis, he has been charged with the offence of taking an action with the intent of frustrating a prosecution under ss. 4 and 5 of the Road Traffic Act as well as with drunk driving.
2. The issue in these proceedings arises from the fact that the car in question was destroyed some months later, despite requests being made from a very early stage for inspection on behalf of the applicant. He says that the functioning of the central locking system is a material issue in the case and that the gardaí have failed in their duty to preserve evidence, to the extent that his right to a trial in due course of law has been violated.
Background facts
3. On the 4th December, 2012, the applicant was arrested on suspicion of driving while intoxicated. His evidence is that having been arrested he was placed in the rear of the patrol car. He was not restrained by a seat belt. The car door was closed by one of the two gardaí. The car moved off. As it went around a sharp bend, the applicant was caused to lean against the door. It opened unexpectedly and he fell out.
4. According to the gardaí, the applicant was placed in the rear of the patrol car and put on his seat belt. The driver then activated the central locking. The car had travelled some distance when the applicant was seen to release his seat belt, pull open the door and jump from the vehicle.
5. The applicant was brought by ambulance to hospital. He underwent a CT scan of his brain and cervical spine, and remained in hospital for two days. Analysis of a blood sample taken at the hospital on the day of the incident resulted in the charge of drunk driving.
6. On the 13th December, 2012, the applicant’s solicitor, Mr. O’Mahony, wrote to the Superintendent for the district. The letter refers to the incident, stating that the applicant had sustained injuries when he fell from the garda vehicle, and continues:
7. In conclusion Mr. O’Mahony said that if a satisfactory response was not received within seven days, either admitting liability or confirming the availability of the vehicle for inspection, he reserved the right to seek a court order for its preservation and inspection.
8. That letter was responded to on behalf of the Superintendent by Inspector Healy on the following day. He informed Mr. O’Mahony that his letter had been passed on to the Legal Section. He also stated that the vehicle had been in constant use, and had accrued significant mileage, since the 4th December, 2012. He did not propose taking it out of service at this point. However, he provided a contact number for the purpose of making an appointment for inspection by an engineer.
9. Mr. O’Mahony replied on the 19th December, 2012, asking, amongst other matters, whether the vehicle had been assessed by a Garda PSV inspector or other assessor, and whether it had been taken out of service for any period after the incident. He indicated that he would be in a position to make an appointment for the engineer upon receipt of this information.
10. It should be noted that the information requested in this letter was not provided until affidavits were filed on behalf of the respondent in these proceedings. It transpires that the car was in fact examined on the 5th December, 2012, the day after the incident, by Garda John White, who is a Public Service Vehicle inspector. Garda White’s report is a standard-form, one-page document in which he ticked boxes under five headings (electrical, steering, brakes, wheels and tyres, bodywork/chassis and general condition). Under the “general condition” heading there is a space for listing any defects found - Garda White wrote in “No defects”. Finally, there is a section for comments, where he wrote:
“All door locks and safety belts are working and in a good condition”.
11. The State Claims Agency responded to the initiating letter on the 20th December, 2012, seeking information on various matters. In relation to the request for inspection facilities, the writer said that the Agency was liaising with the gardaí, while noting that the vehicle had been in constant use since the date of the incident.
12. On the 3rd January, 2013, Garda David Barry, who was the driver of the car on the day, made a statement concerning the events of the 4th December, 2012. He has sworn an affidavit confirming the truth of the contents. He says that the applicant was sitting in the rear of the car with his seat belt on. Garda Barry activated the central locking. He subsequently heard the rear door opening, and realised that the applicant had jumped out.
13. On the 9th January, 2013, Garda Joseph Dillon, the arresting officer, made his statement. He has sworn an affidavit confirming the truth of the statement, in which he says that that the applicant was placed in the rear seat of the car. He was restrained by the seat belt and the door was shut firmly behind him. After the car had travelled approximately 4km the applicant released his seat belt. Garda Dillon says that he saw the applicant with his hand on the door, and then saw him push the door wide open and bring his knees towards the door. He then jumped.
14. On the 17th January, 2013, Mr. O’Mahony wrote to the State Claims Agency, responding to the various inquiries made by it. He concluded by confirming that inspection facilities were required and asking that the vehicle be made available “forthwith”. The claims manager dealing with the case replied on the 28th January, 2013, requesting that the applicant’s engineer contact him to arrange the inspection. Mr. O’Mahony rang the next day, and also wrote back with the engineer’s contact details. On the 31st January, 2013, the claims manager confirmed that he had asked the engineers nominated by the Agency to contact the applicant’s engineer with a view to inspection.
15. On the 29th April, 2013, two summonses were issued, charging the applicant with drunk driving and also with an offence of attempting to frustrate a prosecution for drunk driving. The summonses were not served at this time.
16. On the 10th May, 2013, the applicant’s engineer contacted the claims manager to inquire about the inspection. He offered to inspect the vehicle alone. The claims manager said that he would have to be there himself. He said that he would get back to the engineer about a joint inspection.
17. The summonses were served in July, 2013 and were returnable for the 20th September, 2013. A hearing date was set for the 19th November, 2013.
18. On the 3rd October, 2013, Mr. O’Mahony wrote to the claims manager requesting an explanation for the “unreasonable” delay in making the car available for inspection. The response, sent the following day, was that instructions had been given to an engineer on the 30th January to liaise with the applicant’s engineer for the purposes of arranging a joint inspection. The delay appeared to be due to difficulties in agreeing dates between the engineers. An appointment had been made in late May but it had had to be cancelled. Meanwhile, the car had been “crushed/destroyed” in May. The claims manager said that this was done without the knowledge of the Agency and only came to light when, on the 25th September, 2013, another attempt was made to organise a joint inspection.
19. According to an affidavit sworn by Inspector Healy, the vehicle had “reached its end of life” in May, 2013 and was crushed in accordance with standard procedure. It had remained in daily use until then and had clocked a mileage of 300,000km. The Inspector avers that if there had been any defects with either the locking system or the rear seat belts it would have been taken out of service for repair or, if irreparable, destroyed. He says that there were no other complaints about it.
20. Leave to seek relief by way of judicial review in respect of the charge of attempting to frustrate a prosecution was granted on the 18th November, 2013.
Pleadings
21. The applicant pleads that the functioning of the locking system is a material issue in the prosecution. Inspection had been sought on numerous occasions. The destruction of the vehicle entailed a violation of the applicant’s right to a fair trial and a breach of the obligation of gardaí to preserve all evidence having a bearing or potential bearing on the issue of guilt or innocence.
22. The original statement of opposition was filed on the 25th April, 2014, and simply denies the claims made on behalf of the applicant. In an amended statement, dated the 15th July, 2014, it is pleaded that the case involves disputed matters of fact, which should be determined by a trial judge. The applicant has not discharged the onus of showing that there is a real and substantial risk of an unfair trial, and has not engaged with the facts.
23. It is claimed that the applicant’s solicitor took no action on foot of the information that it was not proposed to take the car out of service, and did not pursue the opportunity for inspection with expedition. No action was taken in the context of the criminal proceedings, but only in the context of the putative civil action.
24. It was further claimed that the applicant had not demonstrated, by evidence or otherwise, what an engineering inspection would achieve.
The expert evidence
25. In an affidavit sworn on the 19th January, 2015, Mr. Stephen Ballard, the applicant’s engineer, has provided an opinion as to the significance of the lost opportunity to inspect the car. He says that the question whether the locking mechanism of the car was operating properly was a critical issue in determining whether or not the door could have opened because of weight leaning against it from the inside. This would require removal of the internal panels of the door for a direct inspection of the mechanism. It would also be necessary to scrutinise closely the metal frame around the door and to look for tiny fractures that might result in weakness or inefficient operation of the mechanism. A reconstruction would need to be carried out. In Mr. Ballard’s opinion, the visual inspection apparently carried out by Garda White would not be sufficient.
26. Mr. Ballard has exhibited a report written by him for the applicant’s solicitor in December, 2014. In the report he states that an inspection would have included an “in depth” examination of the rear seat belts, physical operation of the door locks, checking and removing the inner door panels and examination of the metal frame of the door. He noted that there was no evidence of a history of problems with door locks on the type of car in question.
27. At the hearing of the proceedings objection was taken by the respondent to the admissibility of this affidavit on the basis of the lateness of the stage at which it was served, after the respondent’s submissions had been prepared. Objection was also made to other affidavit evidence said to be hearsay. The ruling on the objection was that inadmissible evidence would be disregarded, while lateness was a matter for comment and might influence the court’s assessment of the evidence.
Submissions on behalf of the applicant
28. The applicant submits that he is at real risk of an unfair trial in respect of the charge of frustrating the prosecution of a drunk driving offence, as he can do no more to counter the assertion that he jumped than make the bare assertion that the car door opened unexpectedly. If he was right about what happened, an inspection would be of fundamental importance. He has been denied an opportunity of challenging the evidence of the PSV inspection and of demonstrating a defect in the door. This is said to be key to his defence to a very specific charge, rather than fanciful speculation or a theory constructed after he had been charged.
29. The fact that an inspection had been sought from a very early stage, albeit in the context of civil proceedings, is stressed, as is the fact that the car had been destroyed before the summonses were served. No explanation has been given for the destruction, in circumstances where it passed the PSV inspection.
30. Reliance is placed on the jurisprudence of the Supreme Court in the “missing evidence” cases, based on the statement of principle in Braddish v. DPP [2001] 3 IR 127 that
“It is the duty of the Gardaí, arising from their unique investigative role, to seek out and preserve all evidence having a bearing or potential bearing on the issue of guilt or innocence. This is so whether the prosecution proposes to rely on the evidence or not, and regardless of whether it assists the case the prosecutions is advancing or not.”
31. The applicant emphasises the criticism by the Supreme Court in McGrath v. DPP [2003] 2 I.R. 25 (in a judgment covering two separate cases relating to missing evidence) of the failure to retain the relevant vehicle in that case, where the applicant was charged with dangerous driving causing death. The deceased had been driving a motorcycle. The gardaí had taken possession of it but had, some weeks before the charge was brought against the applicant, released it to the family of the deceased. It was later broken up for parts and was no longer available when the applicant requested, a few days after service of the book of evidence, to inspect it. It appears from the judgment that it might still have been available when the solicitor for the applicant first indicated in court that he might require an inspection.
32. The evidence of a consulting engineer retained on behalf of the applicant was that as a result of not being able to inspect the motorcycle he was unable to ascertain the collision configuration, or to deduce the closing impact speeds of the two vehicles, or to eliminate satisfactorily any mechanical condition of the motorcycle which might have contributed to the cause of the collision. On behalf of the respondent, a PSV inspector said that he very much doubted that an examination would have thrown light on these matters.
33. Giving the judgment of the Court, Hardiman J. accepted the proposition that an applicant would not be entitled to restrain a prosecution simply by reason of the fact that the gardaí were at one stage in possession of articles that might have been of evidential value, but had parted with such possession. As had been said in Braddish, the duty to preserve and disclose had to be interpreted in a fair and reasonable manner. In Dunne v. Director of Public Prosecutions [2002] 2 IR 305 it had been observed that no remote, theoretical or fanciful possibility would lead to prohibition of a trial. It was also accepted that it is the duty of a trial judge to ensure that a trial is properly and fairly conducted, and that the onus was on the applicant to demonstrate, as set out in Z v. Director of Public Prosecutions [1994] 2 I.R. 476, that there was a real risk that there would not be a fair trial.
34. However, on the facts of the case, Hardiman J. was of the view that any lawyer apprised of the largely circumstantial evidence against the applicant would consider that an examination of the motorcycle was not merely reasonable but necessary and important. This view was not affected by the doubts of the PSV inspector. It was sufficient that an examination would have offered what Lynch J. in Murphy v. Director of Public Prosecutions [1989] I.L.R.M. 71 called “…the reasonable possibility of rebutting the evidence proffered against [her].”
35. The evidence of the engineer that there was no point examining the remaining parts of the motor cycle was accepted.
“The fundamental fact is that the gardaí having themselves thought it important to take possession of the motorcycle and have it examined for their purposes, should have retained the vehicle until conclusion of any proceedings. Instead, they parted with it before they knew whether there would be any proceedings or not.”
36. The Court concluded that the applicant had suffered the loss of a reasonable prospect of obtaining evidence to rebut the case made against her by reason of the gardaí having parted with the motorcycle. There was no delay on her part such as might disentitle her to relief.
37. The applicant refers to the summary of the principles relevant to “missing evidence” cases by Fennelly J. in Savage v. Director of Public Prosecutions [2009] 1 IR 185 as follows (at p. 207):
“(a) It is the duty of the prosecution authorities, in particular An Garda Síochána, to preserve and retain all evidence, which comes into their possession, having a bearing or potential bearing on the issue of guilt or innocence of the accused. This duty flows from their unique investigative role as a police force (see Braddish v Director of Public Prosecutions [2001] 3 IR 127). The extent to which that duty extends to seeking out evidential material not in the possession of the gardaí does not arise in the present case (but see Dunne v Director of Public Prosecutions [2002] 2 IR 305).
(b) The missing evidence in question must be such as to give rise to a real possibility that, in its absence, the accused will be unable to advance a point material to his defence. This is, like the garda obligation to retain and preserve evidence, to be interpreted in a practical and realistic way and "no remote, theoretical or fanciful possibility will lead to the prohibition of a trial" (see Dunne v Director of Public Prosecutions [2002] 2 IR 305 at p. 323).
(c) The fact that the prosecution intends to rely on evidence independent of the missing evidence at issue in order to establish the guilt of the accused does not preclude the making of an order of prohibition. In Dunne v Director of Public Prosecutions [2002] 2 IR 305, the prosecution intended to rely on a confession. This did not defeat the applicant's complaint of the failure of the gardaí to take possession of a video tape covering the scene of the robbery.
(d) The application is considered in the context of all the evidence likely to be put forward at the trial. The court will have regard to the extent to which aspects of the prosecution case are contested. In Bowes v Director of Public Prosecutions [2003] 2 I.R. 25, the fact that the motor car in which the applicant was alleged to have been travelling had been lost by the gardaí was insufficient, when the applicant did not contest the fact that he was driving it and the charge related to possession of drugs found in the boot of the car. In the second applicant's appeal in Bowes, the court had regard to the "circumstantial" character of the prosecution case of dangerous driving. In Mc Farlane v Director of Public Prosecutions [2006] IESC 11, [2007] 1 IR 134 the existence of photographic evidence of the missing fingerprints was highly material to the complaint that the original items had been lost by the gardaí.
(e) The applicant must show, by reference to the case to be made by the prosecution, in effect the book of evidence, how the allegedly missing evidence will affect the fairness of his trial. Hardiman J. said in McFarlane v Director of Public Prosecutions [2006] IESC 11, [2007] 1 IR 134 at p. 144, that:-
"[23] In order to demonstrate that risk there is obviously a need for an applicant to engage in a specific way with the evidence actually available so as to make the risk apparent."
(f) Whether the applicant, through his solicitor or otherwise makes a timely request of the prosecution for access to or an opportunity to have the articles at issue expertly examined may be highly material. In Bowes v Director of Public Prosecutions [2003] 2 I.R. 25 the "very belated" request was critical to the refusal of relief. On the other hand, in Dunne v Director of Public Prosecutions [2002] 2 IR 305, no request was made until some five months after charge, and long after there was any possibility of producing the video tape. In that case, however, Hardiman J. stated at p. 325:-
"There is … a responsibility on a defendant's advisers, with their special knowledge and information, to request material thought by them to be relevant."
However, a suspect or an accused person will be unable to make a timely request, if the gardaí have destroyed or parted with possession of the material. Thus, they must give consideration to the likely interests of the defence before making such decisions.
(g) The essential question, at all times, is whether there is a real risk of an unfair trial (see Scully v Director of Public Prosecutions [2005] IESC 11, [2005] 1 IR 242). The court should focus on that issue and "not on whose fault it is that the evidence is missing, and what the degree of that fault may be" (see Dunne v Director of Public Prosecutions [2002] 3 I.R. 305 at p. 322).”
38. Savage also concerned a charge of dangerous driving causing death, in this instance a passenger. The vehicle in question (which had been stolen from a third party) was destroyed at a time when the applicant had been charged with summary offences only, before the death of the victim from her injuries. The garda evidence was that it was destroyed because it had been inspected by a PSV inspector, had not been claimed by its owner and was in a dangerous condition. At the time, the victim had been discharged from hospital.
39. According to the judgments there were numerous eyewitnesses as to the speed and driving of the applicant. The gardaí came upon the scene immediately and no other vehicle was involved. The PSV inspector made a full report on his examination, with a detailed description of various defects found by him. A consultant engineer retained by the applicant deposed that certain matters arising from that examination supported the proposition that there were defects which might reasonably not have been noticed by the driver. He believed that “it could reasonably have been of significant assistance” had he been in a position to assess those defects himself. He also considered that certain aspects had not been investigated by the PSV inspector. He did not refer to the eyewitness evidence.
40. After the commencement of the judicial review proceedings the respondent informed the applicant that the prosecution would not tender the evidence as to the examination of the car, and that its condition would not be an issue in the trial.
41. The Supreme Court held unanimously that on the facts of the case the applicant was not entitled to relief. The prosecution was not going to rely upon the condition of the car as part of its case, while it was open to the applicant to adduce the evidence of the examination by the PSV inspector as to the nature of the defects found by him, along with the evidence of his own expert, if he wished. The defence expert would not be in a position of being unable to cast doubt upon the prosecution case by reason of the fact that he had not personally inspected the car.
42. However, it should be noted that each of the three judges in the case was critical to some extent of the failure to preserve the car. Denham J. said (at p. 205):
“It would be best practice for An Garda Síochána to give notice, to inform an accused, or a potential accused, of the intention to destroy a vehicle, or evidence which may reasonably be materially relevant to a trial, giving such person time to have the vehicle, or evidence, examined, if they so wished.”
43. Hardiman J. said at (at p. 206):
“However in all the circumstances and having regard to the not inconsiderable number of “missing evidence” cases that come before the courts, I wish to say that, the fact that relief is being denied in this case does not support the proposition that it was legitimate to destroy or dispose of the motor vehicle involved in the accident. It was not. It is never legitimate to dispose of or to lose, evidential material which may have a bearing on guilt or innocence. Moreover, I note that one of my colleagues has very properly emphasised that the destruction of the vehicle in this case was done in a routine way, and was certainly not done for the purpose of avoiding a professional inspection by or on behalf of the applicant. I am quite prepared to accept that this is so. But I wish to stress that it is not an answer to a complaint that a defendant has been denied evidence which carries a reasonable possibility of rebutting the case made against him, that the loss of such evidence is due to blindly following routine, or simple failure to understand its significance, rather than out of malice…The granting or withholding of relief in these cases is not intended to be in any way punitive or exoneratory of the gardaí or other investigators: the right to seek this relief derives from the right to a fair trial, that is the sole consideration.”
44. He supported the suggestion made by Denham J. as to the desirability of routinely giving notice of proposed destruction.
45. At p. 210 Fennelly J., referring to the fact that the initial charges against the applicant had required service of a notice of intention to prosecute, said:
“Less than four weeks after service of that notice and before charging, the car was destroyed. At that stage, the defective condition of the vehicle was clearly going to be material, even if that is no longer the case. The applicant was most unlikely to have engaged a solicitor. In my opinion, the gardaí committed a breach of their obligation to preserve potential evidence. They ought not to have had the car destroyed without considering the possible interests of the applicant.”
Submissions on behalf of the respondent
46. The respondent submits that the relief sought by the applicant is an exceptional one and that it is not appropriate in this case. Reference is made to D.C v. The Director of Public Prosecutions [2005] 4 IR 281, McFarlane v. The Director of Public Prosecutions [2007] 1 IR 134 and Byrne v The Director of Public Prosecutions [2011] 1 IR 346.
47. In D.C. the applicant sought leave for judicial review on the basis of an alleged failure by the gardaí to seek out and make available witness statements concerning the previous sexual history of the complainant, on the basis of certain statements made by prosecution witnesses. The gardaí made enquiries of the complainant but she refused to give the information requested. Leave was refused in the High Court.
48. In dismissing the appeal, the Supreme Court observed that an application for prohibition could succeed only in exceptional circumstances. Giving the judgment of the Court, Denham J. said:
“The Constitution and the State, through legislation, have given to the respondent an independent role in determining whether or not a prosecution should be brought on behalf of the people of Ireland. The respondent having taken such a decision, the courts are slow to intervene…
…[I]n general such a step is not necessary as the trial judge maintains at all times the duty to ensure due process and a fair trial. The basic assumption to apply in relation to all pending trials is that they will be conducted fairly, under the presiding judge. However, in circumstances where there is a real or serious risk of an unfair trial, the courts will intervene so that a defendant may not be exposed to the commencement of the process, it being the assumption that should such a trial commence it will be stopped by the direction of the trial judge because of the real or serious risk of an unfair trial.”
49. The principles set out in Braddish and similar cases were referred to and it was noted that as far back as Dillon v. O’Brien and Davies (1887) 20 L.R. Ir. 300 Palles C.B. had said:
“But the interest of the State in the person charged being brought to trial in due course necessarily extends as well to the preservation of material evidence of his guilt or innocence as to his custody for the purpose of the trial”.
50. Denham J. approved the judgment of Lynch J. in Murphy v. Director of Public Prosecutions [1989] I.L.R.M. 71, where it was held that evidence relevant to guilt or innocence must, so far as is necessary and practicable, be kept until the conclusion of the trial. That principle also applied to the preservation of articles which might give rise to the reasonable possibility of securing relevant evidence. She continued:
“Further, an accused must be afforded every reasonable opportunity to inspect all material evidence which is under the control and power of the prosecuting authority in order adequately to prepare his defence.”
51. The Court held that this line of case law did not apply to the issue raised by the applicant, which did not relate to the preservation of evidence but to a situation where the prosecution had neither hindered the defence nor refused assistance, and had no control over the information sought. Furthermore, the application was being made in a situation where the issues remained hypothetical and were matters for the trial judge.
52. McFarlane concerned the loss of items of evidence alleged to bear the applicant’s fingerprints. The items had been forensically examined before their disappearance and the results of the analysis had been preserved. In particular, there were photographs of the prints on the items. The Supreme Court held that, in the circumstances, there had been a breach of the duty to preserve the evidence, but that the breach had not resulted in the loss of the evidence in an independently verifiable form. The trial court would have both the power and the duty to assess, on the evidence as it actually developed, whether there was any unfairness to the applicant which was incapable of remedy by that court.
53. In Byrne, gardaí investigating an alleged assault in a shop inspected the video cameras and recording system in operation in the premises. The system apparently did not have a CD burning facility but the gardaí were able to print a number of still photographs, which were furnished to the applicant. His solicitor sought a copy of the video, but when the gardaí returned for the purpose of making one, the footage was no longer on the hard drive. The alleged assault had been witnessed by a number of people in the shop and he was arrested there when the gardaí arrived.
54. Having reviewed the line of authority on the issue, O’Donnell J. said:
“In my view, having considered the decided cases, the position has now been reached where it can be said that, other than perhaps the very straightforward type of case as in Braddish v. Director of Public Prosecutions [2001] 3 IR 127, it would now require something exceptional to persuade a court to prohibit a trial. This, in my view, is in accordance with principle. The point was made in McFarlane v. Director of Public Prosecutions [2006] IESC 11, [2007] 1 IR 134 that the fact that an applicant was unsuccessful in judicial review proceedings did not detract from the power and duty of a court of trial to assess the case as it developed at the trial. At p. 147 of his judgment Hardiman J., (with Murray C.J., Geoghegan and Fennelly JJ. concurring) stated that the court of trial ‘[34]…will be able to assess whether there is indeed a prima facie case at the appropriate stage. More than that it will be able to assess, on the evidence as it actually develops, whether there is any unfairness to the applicant, incapable of remedy by the trial court, for which the prosecution is responsible. Its powers in this regard are wholly unaffected by the result of the present application.”
55. O’Donnell J. continued:
“This, in my view, is an important observation. The constitutional right, the infringement of which is alleged to ground an applicant’s entitlement to prohibit a trial, is the right to a fair trial on a criminal charge guaranteed by Articles 38 and 34 of the Constitution. The manner in which the Constitution contemplates that a fair trial is normally guaranteed is through the trial and, if necessary, appeal processes of the courts established under the Constitution. The primary onus of ensuring that that right is vindicated lies on the court of trial, which will itself be a court established under the Constitution and obliged to administer justice pursuant to Article 34. It is, in my view, therefore, entirely consistent with the constitutional order to observe that it will only be in exceptional cases that superior courts should intervene and prohibit a trial, particularly on the basis that evidence is sought to be adduced (in the case of video stills or is not available (in the case of CCTV evidence itself).”
56. O’Donnell J. applied the principles set out by Fennelly J. in Savage. He held that, firstly, it was clear that the CCTV evidence was not the basis of the prosecution identification of the accused, given the evidence of the eyewitnesses and his presence at the scene. Secondly, it was not clear how, as a matter of reality, the footage could have assisted the applicant in circumstances where he had not engaged with the facts of the case other than to assert innocence. The third, highly relevant, consideration was that the trial judge would retain the discretion to exclude the stills if he or she concluded that to produce them, in the absence of the original video footage, would be unfair to the accused.
57. Finally, it was pointed out that this was not a case of inaction or incompetence on the part of the gardaí. This latter fact was relevant to the assessment the Court had to make in considering the duty to seek out and preserve evidence.
58. The respondent relies on Byrne, not merely for the principles relating to missing evidence, but for the emphasis on the power and duty of a trial judge to ensure fairness and the suggestion that applications to the trial court are more appropriate than judicial review. It is argued that the applicant’s case is contingent on certain factual matters, and that, in effect, his case before this Court depends upon the acceptance of his (disputed) version of the facts. The District Court is the proper venue for the determination of questions of fact.
59. The respondent also cites the following passage from the judgment of Fennelly J. in Blanchfield v Judge William Harnett & ors. [2002] 3 IR 207:
“The respondents, in supporting the High Court decision, argued that the overriding duty of the trial judge at a criminal trial is to ensure that the accused has a fair trial. It follows that he has power to exclude even admissible evidence, the key question being whether the interests of justice require that it be admitted. The Trial Judge is in the best position to make the necessary assessments. If the applicant contends that the making of an order of certiorari will benefit him in his criminal trial, he is in effect saying that such an order will at least influence the trial judge. The correct approach, as appears from cases such as Clune v Director of Public Prosecutions [1981] I.L.R.M. 17 is that the superior courts should presume until the contrary is demonstrated that the proceedings at a criminal trial will be properly and fairly conducted.”
60. The suggestion is made, in this context, that a trial judge could exclude evidence of the PSV inspection on the basis that, although admissible, it might be perceived as unfair to admit it in the circumstances.
61. In Blanchfield the applicant had been charged with forgery and fraudulent conversion. The application for prohibition was made on the basis that certain orders made under the Bankers’ Books Evidence Act 1879, which had yielded evidence proposed to be adduced by the prosecution, were invalid. Judicial review proceedings were instituted because, counsel for the applicant said, it would not be open to a Circuit Court judge to quash the orders.
62. The passage cited from the judgment of Fennelly J. is actually from his summary of counsels’ submissions, rather than from the operative part of the judgment. The core ruling was that the trial judge had jurisdiction to adjudicate upon the validity of legal procedures adopted in the collection of evidence. There was therefore no necessity to seek relief by way of judicial review.
63. The respondent submits that the applicant failed to pursue the matter promptly in the context of the prosecution, and that this is evidence of the lack of a serious risk of an unfair trial being perceived by him. However, it is also submitted that the issue for the Court is not about apportioning blame for the situation, but about the fairness of a trial.
64. It is also argued that the applicant has not engaged with the facts of the case, in that the suggestion that the locking mechanism was in some way defective is “entirely speculative and fanciful and indeed irrational” in circumstances where there is no documented incident of problems with door locks in this model of car.
Discussion and conclusions
65. The principle that the courts will be reluctant to restrain a criminal trial is now well established, as is the principle that an applicant for relief must demonstrate that there are, exceptionally, grounds for finding that there is a real risk, incapable of remedy by the trial judge, of an unfair trial.
66. The facts of this case appear to be unique, in that the request for inspection came at a time shortly after the incident and long before the applicant was charged with the relevant offence. The car was, obviously, in the possession of the gardaí throughout, until well after the summons had been applied for but, significantly from the point of view of the applicant, it was destroyed before the summons was served on him. I do not understand the argument that the applicant did not sufficiently press the matter - it had been a constant theme in the correspondence from his solicitor. His engineer had gone to the trouble of ringing the claims manager on his own initiative, and suggesting that he inspect it on his own.
67. Whatever the reason for the delay in agreeing a date for inspection as between the two engineers, it is absolutely clear that the gardaí were aware within ten days of the incident that the applicant was claiming that he fell from the car rather than that he jumped, and that he wished the car to be examined on his behalf. The vehicle had already been inspected by Garda White the day after the incident, and he had paid specific attention to the door locks and safety belts. It is, therefore, also abundantly clear that at the time the summons was applied for, the condition of the doors was likely to be an issue in a trial based on an allegation that the applicant deliberately jumped out.
68. In those circumstances, the decision to send, or to release, the car for destruction without notification to the applicant is very difficult to comprehend. It falls very short of the best practice identified by the Supreme Court in Savage. It is also, in my view, a breach of the duty to preserve evidence which might have a bearing on guilt or innocence. That duty must, of course, be analysed in a fair and reasonable manner but I can see nothing unfair or unreasonable in finding that the gardaí in the circumstances of this case should not have deliberately destroyed, or permitted the destruction of evidence, in their possession. The reason given for the destruction - that the car had “reached the end of its life” - is not adequate.
69. It is also, in my view, significant that the request for inspection was made in the context of contemplated civil proceedings. The importance of this lies in the fact that, in that context, the applicant’s solicitor had available to him a mechanism (of which he was clearly aware) for ensuring the preservation of the vehicle by means of court order, in the event that the gardaí did not make it available voluntarily. The response to his initiating letter, and subsequent communications with the claims manager, gave him no reason to suppose that an application for such an order was necessary. If the applicant is telling the truth about how the incident occurred (which cannot, of course, be determined in these judicial review proceedings) then to that extent he was led to act to his detriment, in that no steps were taken to seek an order of the court.
70. It is not the function of the Court in proceedings of this type to grant relief to an applicant on the basis of a perception of blameworthiness on the part of the gardaí, but it is clear on the authorities that the question of whether or not there has been blameworthy behaviour is part of the assessment of the compliance by investigating gardaí with the duty to preserve evidence which has a bearing, or a potential bearing, on the guilt or innocence of an accused person. Where the gardaí have, by a deliberate act carried out in full awareness of the interest of the applicant, permitted the destruction of potentially relevant evidence, the Court must in my view scrutinise particularly carefully the claim that the fairness of his trial will be unaffected.
71. The proposed remedy for any potential unfairness is said to lie in the power of the trial judge to exclude the evidence of the PSV inspection. The problem with this analysis is that it does not appear that it was contemplated that Garda White would give evidence for the prosecution. He has not made a witness statement. The fact of his inspection was not disclosed until these proceedings were brought. His report gives no detail of how he carried out his inspection, unlike the report in Savage. The instant application was not made on the basis that the applicant could not counter Garda White’s evidence in the absence of an opportunity for inspection. Rather, it is based on the contention that the loss of the opportunity for inspection, which he asked for in a proper and timely fashion, has deprived him of the chance to obtain objective evidence, on foot of expert examination of the car, that might support his account of what happened and not leave him in the position of making a bare assertion that is contradicted by two gardaí. This was always relevant to any civil proceedings that might be taken by him, and it is no less relevant to his defence of the criminal case.
72. Mr. Ballard’s evidence makes it clear that there is no evidence of similar incidents with this model of car, and therefore any problem (if problem there was) would have to have been specific to this car. This does not of itself render the applicant’s assertions “fanciful” or “speculative”. Having regard to the history of this case, it is obvious that the possibility of a problem with the car was not dreamed up as a defence to the charge but was the subject of a claim made by the applicant at a very early stage.
73. It is not clear to me what ruling a trial judge could make that would ameliorate the inherent unfairness of this situation. The opportunity to discover objective evidence having been lost for no good reason, that court would be left with nothing but the oral evidence of the three individuals who were in the car.
74. I am satisfied that in these circumstances, the applicant has met the criteria set out in the authorities and is entitled to the relief claimed.
