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Cite as: [2007] 1 IR 134, [2006] IESC 11

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Judgment Title: McFarlane -v- DPP

Neutral Citation: [2006] IESC 11

Supreme Court Record Number: 315/03 & 49/06

High Court Record Number: 1999 400 JR

Date of Delivery: 07/03/2006

Court: Supreme Court

Composition of Court: Murray C.J., Hardiman J., Geoghegan J., Fennelly J., Kearns J.

Judgment by: Hardiman J.

Status of Judgment: Approved


Judgments by	Result	Concurring
Hardiman J.	Appeal allowed - set aside High Court Order	Murray C.J., Geoghegan J., Fennelly J.
Kearns J.	Appeal dismissed - affirm High Court Order

Outcome: Allow And Set Aside

- 17 -

THE SUPREME COURT

Murray C.J. 315/03 & 49/06
Hardiman J.
Geoghegan J.
Fennelly J.
Kearns J.

Between:

BRENDAN McFARLANE

Applicant/Respondent

and
THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent/Appellant

and
THE MEMBERS OF THE SPECIAL CRIMINAL COURT

Respondent

JUDGMENT of Mr. Justice Hardiman delivered the 7th day of March, 2006.

Brendan McFarlane is charged with three offences: possession of a firearm with intent to endanger life between the 25th November, 1983 and the 16th December, 1983, at the Derradda Wood, Drumcroman, Ballinamore, Co. Leitrim; possession of a firearm at the same time and place in such circumstances as to give rise to a reasonable inference that he did not have it in his possession for a lawful purpose and with falsely imprisoning Donald James Tidy by unlawfully detaining him against his will between the 24th November, 1983, and the 16th December, 1983. The applicant/respondent (hereafter the applicant) has sought to prohibit his trial on these charges on the basis of prejudicial delay and secondly on the basis that during the time which has elapsed certain exhibits have gone missing. The significance of these exhibits is that it is alleged by the prosecution that they were found at the place where Mr. Tidy was unlawfully held and that they bore the applicant’s fingerprints. Mr. Tidy was held outdoors in wooded countryside between the 25th November, 1983, and the 16th December of the same year. When the security forces came upon the place there was a gunfight between them and those holding Mr.Tidy. In the course of this two members of the security forces, recruit Garda Sheehan and Private Kelly, died. Mr. Tidy was rescued and removed from the area by security forces. The area in question is that identified in the charges, near Ballinamore, Co. Leitrim.
The items on which the applicant’s fingerprints were allegedly found were the following:
(a) A North Connaught Farmer’s one litre milk carton with a sell by date of the 16th December, 1983,
(b) A plastic container,
(c) A cooking pot.

In circumstances discussed below, the applicant was arrested on the 5th January, 1998, and subsequently charged with the above offences. The applicant was unsuccessful in the High Court on the second of these points and the Director has appealed to this Court.

The delay.
From the affidavit of Detective Superintendent John McElligott it appears that, in the aftermath of the rescue of Mr. Tidy the applicant was suspected of involvement in his kidnapping and false imprisonment. Details of him were circulated through garda channels and in particular through Fógra Tora in January, 1984. It appears that the applicant had been imprisoned in Northern Ireland since 1975, serving a long sentence of imprisonment for his part in the IRA bombing of a bar on the Shankhill Road, Belfast, in which five people were killed. However, on the 25th September, 1983, the applicant escaped from the Maze Prison together with other prisoners. In January, 1986, the applicant was arrested in the Netherlands and was found to be in possession of a stolen or forged Irish passport. On the 3rd December, 1986, he was extradited from the Netherlands back to Northern Ireland. From that time until some time shortly prior to his arrest he was serving his sentence in Northern Ireland and this fact was known to the Gardaí.

Superintendent McElligott says that the Gardaí were very conscious of the fact that the applicant’s fingerprints had been found on the three items described above, found at the scene of the camp or hide where Mr. Tidy had been held. They considered that the applicant should be sought for interview in relation to the false imprisonment of Mr. Tidy and associated crimes, but that there was then insufficient evidence to commence proceedings against him. They intended to question him if possible while detained under s.30 of the Offences against the State Act. For these reasons his extradition from Northern Ireland was not sought in connection with these crimes, and nor was it sought to have him prosecuted under the Criminal Law (Jurisdiction) Act, 1976, while he was in prison in Northern Ireland. Equally, he was not interviewed while serving the sentence in Northern Ireland because it was believed he would not co-operate in any such venture and that he would be entitled to refuse to see any garda who sought to interview him while in prison in Northern Ireland.

Subsequent to his arrest on the 5th January, 1998, the applicant was questioned by members of An Garda Síochána. According to those members for the most part he declined to answer questions and simply stared at the wall. It is alleged, however, that he made certain admissions while being questioned. Specifically, it is alleged that when asked about his involvement “in Dromcronan Wood” he said:

“On the advice of my solicitor I will not discuss it. I was there you can prove that but I will not talk about it”.

The following conversation then took place:
Q. “What do you expect will happen to you?
A. I am prepared for the big one. I have already talked to her

[his girlfriend who had been to see him] about our future and house.

Q. Do you mean murder?

A. I am prepared for the worst.”

These alleged statements, together with the fingerprints, constitute the case against the applicant. In the course of these proceedings the applicant did not affirm, comment upon, or deny any part of this evidence and of course he was not obliged to do so.
Effect of delay.
Insofar as the case is based on delay simplicitor, the applicant says that the State authorities could have invoked the procedures under the Criminal Law (Jurisdiction) Act, 1976, providing for him to be tried in Northern Ireland for these offences. This, they say, could have been done at any time since December, 1986, the date of his return to Northern Ireland having been extradited from the Netherlands. Equally, the authorities could have taken steps to extradite him for the purpose of preferring the present charges against him, at a much earlier date. He says that he had periods of parole from his sentence in Northern Ireland since 1993 and spent some of these in this jurisdiction: he was actually on parole here at the time of his eventual arrest. He further says that it is unfair or unreasonable to expect that the applicant “would be able to give specific instructions as to alibi or other matters of defence due to effluxion of time”.

In reply to this, the Director of Public Prosecutions says that at all times after the identification of the applicant’s fingerprints on the items found at the crime scene, the Gardaí wished to interview him. However, the matter went no further than that: the finding of these fingerprints and movable items was not sufficient evidence to charge him and any charge based on that evidence alone would have been dismissed. It was only upon interviewing him that the further evidence – his alleged admission of presence in the area where Mr. Tidy was held – resulted in the Director’s decision to charge him with the present offences. The applicant’s unavailability for interview was due to his having left Ireland, apparently in possession of a forged or stolen passport, and remaining in the Netherlands until 1986. Thereafter, it was due to his detention in Northern Ireland where he was serving a sentence. The Director says that it would have been pointless either to seek to arrange for his trial in Northern Ireland under the 1976 Act, or to seek his extradition for trial in this jurisdiction at any time prior to 1998 since the authorities were not in possession of sufficient evidence to do so.

Decision on delay issue.
The Director’s assertion that there was insufficient evidence to charge the applicant prior to his arrest in 1998 has not been disputed and appears to be true. The delay of which the applicant complains is entirely pre-charge delay. Since the evidence on which to bring a charge was not available until just before he was in fact charged there appears to be no basis for the applicant to complain about that delay. This fact seems fatal, equally, to the contention that he might have been proceeded against pursuant to the Act of 1976 or that his extradition might have been sought. On the evidence before the Court in this case there was simply no sufficient case against him on the present charges at any time while he was in custody in Northern Ireland. Accordingly, to attempt to proceed against him in either of the ways mentioned would not merely have been pointless, but would have been an abuse of the respective procedures.

The applicant relies on the proposition that he could have been interviewed at a much earlier stage; that there was no need to wait until his release on parole in 1998 before seeking to interview him. It is true that the Gardaí could have sought the permission of the Northern Ireland Authorities, and of the applicant himself, to conduct an interview while he was in custody in Northern Ireland. Superintendent McElligott’s affidavit describes this as “a theoretical possibility”. The Gardaí, he says, took the view that it was “quite pointless” because “it was quite clear that Mr. McFarlane would not co-operate in such a venture… and indeed was quite entitled to refuse to see any member of the Gardaí who sought to interview him and in any event to terminate any inquiry as was being made at the time”.

In my view, this was an entirely legitimate opinion for members of An Garda Síochána to entertain. It cannot, of course, be positively demonstrated that this view was certainly correct but it appears to me that there were ample grounds for it. The applicant was a hardened criminal, serving a sentence for a very serious offence and suspected with reasonable grounds of involvement in another such offence. Nor could it be said that there was nothing to be lost by trying to interview him in respect of the present offences: any such attempt would have put him on notice of the Garda interest in him in that connection and might thereby render less effective any questioning of him when he eventually became available for arrest by the Gardaí. Moreover, it appears to me that the Gardaí were entitled to prefer to conduct such questioning following the applicant’s arrest under s.30 of the Offences Against the State Act when he would be obliged at any event to listen to the questions, if not to answer them, and when (subject to the Regulations for the treatment of persons in custody) the structure and duration of the questioning would be in their control and not that of other authorities, or of the applicant himself.

The position of a person who is suspected of a criminal offence, but not charged with it, has been considered by Gannon J. in O’Flynn v. Clifford [1988] IR 740 at 744:

“There is I think an important distinction between the stage before charge, when a matter of a suspected crime is being investigated, and the stage after an accused person has been charged and so is subject to the directions of a court. Before any charge of a criminal offence is preferred against a person there is a presumption of innocence… he is entitled as a matter of fundamental right, antecedent to the Constitution, to the freedom of his person… in relation to the stage before charge the existence of a suspicion is not a sufficient basis for arresting a person. However genuine or cogent the beliefs or suspicions held, a person may not be detained for the purpose of formulating a charge against him of a criminal offence or for the convenience of assembling evidence to support a contemplated charge against him. But from the time a criminal charge is made against a person resort to court procedure is obligatory and must be prompt. The presumption of innocence is not simply a mere legal formality; it is a necessary corollary of the constitutional rights in Article 40 of the Constitution and of those basic human rights which are anterior to the Constitution…

the supposed existence of unexpressed suspicion of criminality in the mind of another in relation to a person cannot in law or in reason confer any rights cognisable by the Courts upon the person to whom the suspicions relate.

A person who is a mere suspect (and therefore presumed innocent) has no legal right to have a charge made against him nor to have some legal process diligently or expeditiously pursued, by arrest or summons, to bring him before a court”. (Emphasis added)

There are, of course, many authorities supportive of the proposition that, quite apart from any question of prejudice, there is an obligation on the public authorities “to provide for and protect the right of an accused person to an expeditious trial as a positive constitutional right”. This formulation of the right comes from the judgment of Finlay C.J. in Hogan v. The President of the Circuit Court [1994] 2 IR 513 at 521.

Later on the same page, however, Finlay C.J. said:

“Obviously, in any case where the prosecuting authorities of the information available to them have not got proper grounds for charging any person with an offence, their failure to do so and elapse of time before they are in a position to do so cannot give an accused the right to prohibit a trial on the basis of the defeat of its constitutional right to an expeditious trial.”

In view of the findings above as to when the authorities were in possession of material constituting a prima facie case against the applicant, that passage seems determinative of the present application, insofar as it is grounded on delay simplicter.

Prejudice.
The applicant further contends that the delay, or events happening during the period of delay, have caused him irreparable prejudice in his ability to defend himself, so that there is a real and serious risk of an unfair trial. In part this is put forward as a general proposition and in part more specifically. Heavy reliance is placed on the fact that the three items on which fingerprints were allegedly found are no longer in possession of the Gardaí.

Insofar as this ground is urged on the basis of general prejudice, I am unimpressed by it. The whole of the case in this regard is based on a single sentence from the grounding affidavit of Mr. McGuill, solicitor for the applicant, which is quoted above. That is no more than a general statement of the effect of a lapse of time. It makes no attempt whatever to engage with the actual circumstances of the applicant himself at the relevant time. On the 25th September, 1983, he had undoubtedly escaped from lawful custody in Northern Ireland. The next uncontroversial statement that can be made about his whereabouts is that he was in the Netherlands in January of 1986 in possession of a stolen or forged Irish passport. The applicant has said nothing about his whereabouts during any part of that time and, vitally, has not asserted, or caused his solicitor to assert, either how he spent the time, or that he cannot recall where he was, during the period of Mr. Tidy’s captivity in late November and up to the 16th December, 1983. A remote, fanciful or purely theoretical form of prejudice is plainly not sufficient to entitle him to relief. An applicant in this position must address if it is possible the actual specific facts of his case and this present applicant has singularly failed to do.

The items bearing fingerprints.

There is, however, a more specific form of prejudice alleged in the form of the loss of the items bearing the fingerprints. There is no doubt but that this loss occurred: the affidavit of Mr. Boyle, formerly a Sergeant in the fingerprint branch of the Gardaí makes it clear that these items were present in a specific room at the time of his retirement from the force in 1993. Five years later when he was requested to come back to work for the purpose of dealing with them the room had been changed in its use from store room to library and conference room and the items in question were nowhere to be found. It appears from the statements in the Book of Evidence, un-contradicted for the purpose of these proceedings, that the fingerprints had been photographed in situ by Detective Garda Maguire and these photographs of the impressions are still available.

The precise form of prejudice alleged in those circumstances is expressed by Mr. McGuill in his affidavit as follows:

“As a result the applicant is not in a position to comprehensively independently evaluate the alleged physical evidence in this case and has been so advised as of October, 1999, by an independent expert retained on his behalf.”

There is no doubt, and the learned trial judge found, that the items on which the fingerprints were discovered have been lost due to some want of care by someone in An Garda Síochána.

The Court wishes to emphasise that this want of care is a very grave matter and requires the urgent attention of the Garda authorities. Most unfortunately this is by no means the first case to come before the Court in which items of real evidence transpire to be missing when they are looked for trial purposes or in the course of judicial review proceedings such as these. Examples of such cases are Murphy v. DPP [1989] ILRN 71 and Bowes v. DPP [2003] 2 IR 25. Moreover, the Court has previously drawn attention to the need for great care in the matter of the storage of evidence. It appears that there is, amongst some members of An Garda Síochána at any event, an unfortunate inability to keep track of items of real evidence, whether small domestic type items as in this case or an item as large and one would have thought obvious as a motor car in Bowes. This Court has emphasised time and again that missing evidence cases are not primarily a matter of fault finding or an additional disciplinary procedure in relation to members of An Garda Síochána. I would repeat that observation here. Equally, one must make full allowance for the long period of time which elapsed in this case, for the reasons discussed above.

Returning to the facts of the present case, it is true, as the learned trial judge pointed out, that there was in fact a forensic examination of the missing items prior to their disappearance and that the results of the forensic analysis have been preserved. It appears from the Book of Evidence, exhibited by the applicant, that there is a chain of evidence covering the identification of the fingerprints on the items, the photographing of the fingerprints on the items and the preservation of the photographs. These photographs are available for comparison purposes: they have in fact been compared with the applicant’s fingerprints and are available, if desired, for further comparison on behalf of the applicant. A significantly different situation would arise if this independent comparison were not possible. No attempt has been made in the present case to suggest that meaningful comparison is not possible, using the photographs, or that any additional advantage might have accrued to the defendant on the basis of a comparison with the actual marks made on the items as opposed to photographs of them. The case is thus significantly different from McGrath v. DPP [2003] 2 IR 25, where an expert engineer on behalf of the applicant stated that due to the non-availability of an item of real evidence he was unable to carry out specific tests the result of which might have had an obvious benefit to the defence. There is no basis on the evidence in this case for an agreement that “the applicant has been deprived of the reasonable possibility of rebutting the evidence proffered against him”, to use the language of Lynch J. in Murphy v. DPP, cited above. It is relevant to recall what was said in
Z v. DPP [1994] 2 IR 476 at 506:

“[The] onus of proof which is on an accused person who seeks an order prohibiting his trial on the ground 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”.

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. A failure to do this was the basis of the failure of the applicant in Scully [2005] I IR 242. This is not a burdensome onus of proof: what is in question, after all, is the demonstration of a real risk, as opposed to an established certainty, or even probability of an unfair trial. The applicant has not so much failed to meet the requisite standard of proof as failed to address the issue in any meaningful way. To say this is not to criticise the applicant’s advisers: it may be that the point has been put as far as it can be.

On the above evidence, the learned trial judge granted the applicant relief on the second ground, that relating to the loss of the items on which the fingerprints were found. The learned trial judge felt himself bound to do so by the decisions of this Court in Braddish v. The Director of Public Prosecutions [2001] 3 IR 127 and Dunne v. The Director of Public Prosecutions [2002] 2 IR 305. Both of these were video tape cases. In the first, the gardaí viewed a video tape and identified a suspect from it. They interviewed the suspect and claimed to have got an admission from him: they then disposed of the video tape. In Dunne the premises robbed were a filling station which was equipped with video surveillance focussed on the area where the robbery took place. But the gardaí appear to have paid no attention at all to this aspect of the case and never to have taken the tape into their possession.

The facts of these cases do not appear to me to be analogous to those of the present case. The video tapes were simply unavailable, either because they had been disposed of by the guards or because the guards had paid no attention to the video tape. A closer analogy to the facts of the present case would be if the contents of the video tapes had been recorded on to another tape and the originals then lost or disposed of. But nothing like that happened in either of the cases referred to.

There is, so far as I am aware, no direct precedent in the missing evidence cases that have become before this Court or the High Court for a situation like the present where items bearing fingerprints have been lost, but only after forensic examination has taken place, the fingerprints identified, photographed, and compared with the applicant’s and the photographs preserved.

The learned trial judge was of course aware that these things had happened. He said:

“Now in the instant case, while it is clear that the items have not been retained there was, nevertheless, a forensic examination of them and the issue arises whether by reason of this forensic examination, it can be said that the applicant can now obtain a fair trial or whether for the reason of the loss of the items in question this Court should follow the decision in the case of

Braddish v. The Director of Public Prosecutions

I have come to the conclusion that I am bound by the decision of

Braddish v. The Director of Public Prosecutions

by reason of the failure on the part of the Garda authorities to retain the items in question. I believe it has clearly resulted in a situation of the loss of vital evidence and it is in these circumstances that I believe that the applicant is entitled to the relief which he seeks”.

In my view, this approach interprets the decision in Braddish over-rigidly, and ignores the essential factual distinction between that case and this one, which is the availability here of the photographs of the fingerprints found on the missing items. These photographs are capable of proof as secondary evidence. In Cross on Evidence, 5th Edition at page 15 the elementary point is made that:

“ ‘Primary evidence’ is that which does not, by its very nature, suggest that better evidence may be available; ‘secondary evidence’ is that which, by its very nature does suggest that better evidence may be available. The original of a document is primary evidence, a copy secondary evidence, of its contents”.

It is part of ordinary human experience that documents and items, even those of great significance or intrinsic value, are not infrequently lost. The law has taken note of this over many centuries and is not so unrealistic as to consider that the loss of an original document or item of real evidence is fatal to any litigation based on it. Copies of documents are freely admissible in criminal proceedings, now by virtue of s.30 of the Criminal Evidence Act, 1992, which provides at s.30:

“(1) Where evidence contained in a document is admissible in evidence in criminal proceedings, the information may be given in evidence, whether or not the document was still in existence, by producing a copy of the document, or of the material part of it, authenticated in such manner as the Court may approve.

(2) It is immaterial for the purposes of subsection (1) how many removes there are between the copy and the original, or by what means (which may include facsimile transmission) the copy produced or any intermediate copy was made.

In relation to items of real evidence, McGrath on Evidence states at page 691:

“A material object is any object, the existence, appearance or condition of which is relevant to the issues in a case. Common examples would include the alleged murder weapon in a murder case, stolen goods in a prosecution for receiving stolen goods and the product in a products liability case. In general such objects are produced in court for inspection and examination by the Tribunal of Fact. However, where it is not possible or practical to produce the actual object, secondary evidence of it may be adduced. This may take the form of photographs or films of the object or the oral evidence of someone who has seen it.”

It therefore appears that, whether the fingerprint on the missing items be regarded as a document, or as an independent item of real evidence, there is ample provision in law for its proof by way of a duly authenticated photograph.

Viewed in this light, the distinction between the present case and those cited is clear. Quite obviously the gardaí have been in breach of their duty to preserve the evidence, but in this case, unlike the others, this breach has not resulted in the loss of that evidence in an independently verifiable form. That statement must of course be read subject to what is said below about the powers and functions of the trial court.

I would therefore decline to grant relief sought. The reasoning leading to this decision in part depends of an assessment of the case against the applicant as it appears from the Book of Evidence which the applicant exhibited in these proceedings. Since no part of its contents was contradicted it seems appropriate to have regard to it for the purpose of this judicial review application.

When the case proceeds in the Court of Trial, however, different considerations may arise. The evidence adduced may or may not extend to the whole of what is in the Book of Evidence, which after all consists of statements of intended evidence. The exhibits mentioned there may or may not be to hand. Other evidence or cross-examination of existing witnesses, may put the photographic fingerprint or forensic evidence into an entirely different context. The fact that the applicant has been unsuccessful in these judicial review proceedings in no way detracts from the power and duty of the Court of Trial to assess the case as it develops at the trial. It 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.

Conclusion.
I would allow the appeal and refuse relief to the applicant. I would also dismiss the cross-appeal.

JUDGMENT OF Mr. Justice Kearns delivered the 7th day of March, 2006

This case arises out of the abduction and false imprisonment of Mr. Don Tidey, a well known businessman, between the 24th November, 1983, and the 16th December, 1983. Mr. Tidey was eventually rescued from the gang who had been holding him at the hide-out where he had been held captive at Drumcronan Wood in County Leitrim. During the course of the shoot-out which occurred on the day of his rescue garda recruit Gary Sheehan and army private Patrick Kelly were shot dead. The sequence of events over a three week period without doubt involved crimes of the utmost gravity.
Amongst a large number of items found at the hide-out were a milk container, a plastic container and a cooking pot. It is part of the State’s case that the applicant’s fingerprints were found on these items.
The applicant was not however arrested until January, 1998 for the various reasons set out in the affidavit of Chief Superintendent Dermot Jennings sworn herein on the 5th April, 2000. This background history is more fully set out in the judgment of Hardiman J. and need not be repeated here.
Following the arrest of the applicant in 1998, Mr. Maurice Boyle, formerly a Detective Sergeant in the Fingerprint Section of the Garda Siochana who had retired in 1993, was requested to return to the Fingerprint Section in Garda Headquarters in Phoenix Park to prepare a statement and recover the relevant exhibits particularly:-
(a) The NCF one litre milk carton marked “MB4, 8539/83”.
(b) The plastic container marked “MB15, 8539/83”.
(c) The cooking pot marked “MB20, 8539/83”.

However, as he deposes in his affidavit sworn herein on the 5th April, 2000, he found on arrival at Garda Headquarters that the Fingerprint Section had been refurbished to accommodate the computerisation of fingerprints. The storage room in which the exhibits had been held had become a library and a conference room. He states:-

“I was informed that the exhibits which had been held in the area had been relocated to the basement of the premises. I then caused a complete thorough search of the Technical Bureau to be undertaken to include the basement area, however this search proved negative and consequently I have not been able to retrieve the foregoing items”.

The importance of the obligation to preserve these items and keep them safely cannot be overstated. Indeed, that requirement is acknowledged both implicitly in the affidavits filed on behalf of the appellant and expressly by appellant’s counsel on the hearing of this appeal. It goes without saying that the items in question were items which could be easily kept and stored with minimal inconvenience. One is not here dealing with some enormous object such as a building or a ship on the one hand or the carcass of a dead animal on the other. Nor was there something in the nature of a vehicle involved where the owner might be pressing for its return once a forensic examination had taken place. Furthermore, the items in question for many years provided the only available evidence against the applicant in respect of his alleged involvement in the events of the 16th December, 1983. In and of themselves however, they did not, in the view of Detective Superintendent John McElligott of the National Bureau of Criminal Investigation, constitute sufficient evidence to commence proceedings against the applicant. Following the arrest of the applicant in this jurisdiction in January, 1998, however, it is alleged that he made, in the course of a series of interviews, a verbal admission that he had been in Drumcroman Wood during the period of Mr. Tidey’s imprisonment and the somewhat equivocal alleged admission that he “was prepared for the worst” . This alleged admission, in conjunction with the fingerprint evidence, was then deemed sufficient to enable the pending prosecution to be instigated. However, following the arrest of the applicant, the loss of these original items came to light, though even the date of that discovery is not stated in any affidavit filed on behalf of the appellant. The only explanation offered for the loss or disappearance of the items is that referred to above and, apart from affidavits from the three above-named police officers directed to explaining delay, no case has been made out on affidavit by or on behalf of the appellant to address either (a) the manner in which the prosecution now proposes to prove its case or (b) to rebut or seek to rebut the prejudice alleged to have been suffered by the applicant, either by showing that the consequential possibility of an unfair trial arising from the loss of the items is, in the words of Hardiman J in Dunne v DPP [2002] 2 I.R. 306, “remote, fanciful or theoretical” only, or, if it be real or substantial, how such prejudice might be overcome. The only engagement of any sort with that issue is contained at para. 16 of the affidavit of Detective Superintendent McElligott in which he states:-

“I further say and believe that should the applicant take issue with the absence of the three items upon which his fingermark was found, this is a matter to be dealt with by the court of trial in the context of their assessing the

evidence against the applicant and the weight to be attached thereto. I say and believe that the mere absence of those items is not such as should give rise to any entitlement to an order prohibiting his trial”.

In the affidavit sworn by Mr. James MacGuill on the 29th October, 1999, which grounded the application brought herein to restrain the prosecution, Mr. MacGuill deposed as follows:-

“I say that a reading of the book of evidence discloses that the evidence proposed to be adduced against the applicant primarily consists of fingerprints marked on domestic items which are alleged to have been retrieved and/or identified by investigating gardai at the time of the alleged incidents in 1983

I say that certain items from which these marks were allegedly taken are no longer in the custody of the investigating gardai and are, as such unavailable to my client for inspection. I say that despite my repeated written requests for an explanation as to which such important exhibits are no longer available; no explanation has ever been forthcoming. I beg to refer to such correspondence between myself and the Office of the Chief State Solicitor, true copies of which pinned together and marked with the letter “C” I have signed my name prior to the swearing hereof. As a result the applicant is not in a position to comprehensively independently evaluate the alleged physical evidence in this case and has been so advised as of October, 1999 by an independent expert retained on his behalf”.

It is apparent that neither side has directly engaged in addressing in any particularised fashion the implications for any proposed trial of the loss of these original items. Due to the absence of any replying affidavits from the appellant addressed to the lost evidence, some not insignificant time was taken up during the hearing of this appeal with inquiries addressed by members of the Court to appellant’s counsel to ascertain how the forensic examination was carried out and the nature of the secondary evidence which might still be available. It imposed on members of the Court the task, as the appeal progressed, of having to trawl forwards and backwards through the Book of Evidence in an effort to find information which might shed some light on these issues. It was, in my view, a very unsatisfactory state in which to leave the appellant’s response to this application, having regard to the gravity of the case, the central importance of the missing evidence, and the requirement to address concerns which predictably arise when key evidence has been lost.
I accept, of course, that in the ordinary way the onus of proof falls on an applicant seeking an order of prohibition to demonstrate such prejudice as would give rise to a real risk of an unfair trial (Z v DPP [1994] 2 I.R. 476).
However, it seems to me that the applicant must be seen as starting from a position of considerable strength having regard to the facts outlined above. His position is further strengthened by various pronouncements of this Court where important evidence has been mislaid or lost, notably when the material is lost from garda custody.
In Braddish v DPP

[2001] 3 IR 127 this Court was firmly of the view that evidence relevant to guilt or innocence must, so far as was necessary and practicable, be kept until the conclusion of a trial. Further, in that case it was held that the Gardaí were under a duty, 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. The Court stressed that this was so whether the prosecution proposed to rely on the evidence or not, and regardless of whether it assisted its case or not. The material itself had to be preserved and disclosed, and any notes of records of it could not be destroyed or rendered unavailable.

Braddish

was a case where the Gardai had parted with possession of a video, having prepared photographic stills from the video which allegedly showed a robbery in progress and permitted identification of the applicant. In the High Court Ó Caoimh J. observed that if the prosecution were to rely on the photographic stills, a real problem would exist because the applicant would be deprived of his opportunity of testing the evidence as the video tape was missing. While Ó Caoimh J. was reversed on appeal it was not for that reason: indeed his reasoning on that issue was in no way faulted. Furthermore, the judgment of this court specifically notes that when the trial of Mr Braddish -which preceded the judicial review – took place in the Circuit Court, Haugh J. excluded the stills on the basis it was unfair to produce them when the video film from which they had been taken was not available and discharged the jury from further considering the case.

Braddish

is therefore important for various reasons in the context of the present case. Firstly, it emphasises the requirement to preserve items which may be “

useful”

to the defence. It goes without saying, in my view, that the original items which have been lost in this case can only be seen as falling into that category. However they are not merely items which are useful or evidentially relevant. They constitute or contain the primary and central evidence in the case. Indeed this is conceded by Mr. Collins, counsel for the respondent, who further accepted during the course of the hearing that the ability of the applicant to defend the case has been impaired by the loss of these exhibits. Secondly, the judgment of Hardiman J in

Braddish

is authority for the proposition that respondent cannot rely on the existence of an alleged admission by an accused to substitute for the obligations outlined above, a view also expressed by Hardiman J in

Dunne v DPP

[2002] 2 IR 305 Thirdly it shows that reliance by the prosecution on secondary evidence (the stills in the

Braddish

case) may create a ‘

real problem’

for an accused person who has been deprived of an opportunity of examining the original exhibit.

This case goes a lot further in my view than a number of the video tape cases, where in some instances applications were brought to court on the basis of a mere possibility that they might have contained material either inculpatory or exculpatory of the accused. Thus, in

Scully v DPP

[2005] 1 IR 242, relief was refused for reasons which,

inter alia

, included the fact that the three cameras covering a garage forecourt did not cover the area where a particular vehicle was parked and were, in any event, totally ineffective in darkness. In other words, the respondent was able to and did demonstrate that no prejudice in fact arose or could arise on the facts of the particular case.

Hardiman J. in the course of his judgment in

Scully v DPP

deprecated applications brought on theoretical or fanciful grounds stating (at 252):-

“The fact is that the rationale of this application vanished after the undisputed facts in relation to the video surveillance on the filling station at the time of the crime were revealed. This did not happen until quite close to the trial because the applicant did not investigate the position any earlier. This, in turn, appears to me to indicate that the applicant was more interested in tripping the investigators than in discovery of evidence:

ertainly he was constrained to continue his application on the basis of a theoretical possibility only…. Applications on this basis must be discountenanced in the interest of the public right to prosecute, but also in the interest of the integrity of the

jurisdiction, in a proper case, to restrain a prosecution on the basis that significant evidence has been ignored or destroyed”.

These are sentiments with which I agree having myself expressed views to the same or even stronger effect in

DPP

Scully

in the High Court and indeed in other cases such as

Dunne v DPP

(Unreported, High Court, 23rd March, 2001) and

O’Callaghan v Judges of Dublin Metropolitan District Court

(Unreported, High Court, 20th May, 2004). Commonsense parameters of reasonable practicality must govern any determination of the scope of the duty on the gardai when seeking out or preserving evidence and remote possibilities arising from the loss of evidence should not be allowed to trip up the prosecution or justify stopping a trial from taking place.

However, in

Bowes and McGrath v DPP

[2003] 2 I.R. 25, this Court prohibited a trial in the

McGrath

case in circumstances where the applicant established that the Gardai had parted with a motor cycle which had been involved in an accident and had thereby deprived the applicant of the possibility of an examination which might have offered the accused

“the reasonable possibility”

of rebutting the evidence proffered against her. The Court in so deciding followed the decision of Lynch J in

Murphy v DPP

(1989) ILRN 71 where relief was also granted on the applicant’s assertion that the disposal of a motor car had deprived his fingerprint expert of an opportunity of adducing possible scientific evidence which might have served a useful purpose. In that case the Gardai had disposed of the vehicle without conducting a forensic examination although they knew the applicant wished to inspect the vehicle for that purpose. Lynch J decided the case in favour of the applicant on fair procedures grounds but noted (at p.76):

“The authorities establish that evidence relevant to guilt or innocence must so far 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”

I think the instant case must also be approached on the basis that the Gardai were aware, or should have been aware, that the applicant would require a similar expert inspection of the articles containing fingerprints. Indeed that must be seen as the very reason for preserving the particular items, the Gardai having completed their own forensic examination of same. That the Gardai have a particular responsibility in relation to evidence in their possession in such circumstances is beyond question. In considering the appropriate standard to apply when considering the risk of an unfair trial arising from the loss of evidence which has been in the hands of the prosecution, Fennelly J stated as follows in

Dunne v DPP

[2002] 2 I.R 306 at 342:

“The rationale of the decision of Lynch J. in Murphy v DPP [1989] I.L.R.M. 71 is that the gardai had evidence in their possession which could possibly be of assistance to the accused. They could not be allowed to pass judgment on whether it would, in fact, have assisted him. For that reason, it is correct to apply a standard based on possibility combined with real and serious risk of unfairness. All this takes place in the context of a possible trial and it is of the greatest importance that the courts ensure that the police force behaves with impeccable fairness in its handling of evidence.”

I do not distinguish between negligently

losing

and negligently

parting with

primary evidence in this context. That being so, I can not see how this applicant is in any worse position than the various applicants in the cited cases to whom relief was granted. I so hold having regard in particular to the particular factors present in this case, which include the central nature of the evidence lost from Garda custody, the loss thereby arising of any opportunity to examine the items, the admission by the respondent that the ability of the applicant to defend the proceedings has in consequence been impaired and the failure by the appellant to put any case on affidavit to explain away prejudice.

Lest it be said that relief should be refused because the applicant himself was guilty in this case of delay, it is worth noting that it was held in

Bowes and McGrath v DPP

that time could not run against the applicant until proceedings were commenced against her. Her only entitlement to have the motor cycle examined arose from her right to a fair trial, which did not arise until a decision to prosecute was taken and communicated.

These cases clearly demonstrate to me, at least, that where a clear breach of a legal duty has been established by an applicant with regard to central evidence in a case, and where it is further conceded, as in this case, that the applicant’s ability to defend the case has as a result been impaired, then an explanation must be provided by or on behalf of the DPP to explain why relevant evidence was not preserved and evidence provided also to show why its absence does not create the risk of an unfair trial. This is not to reverse the onus of proof in some novel way in cases such as this but rather to hold that, on the particular facts demonstrated in this case, the onus of proof falling on the applicant has been discharged.

In my view the very limited material placed before the Court completely fails to meet the requirements of the case. It is true that the Book of Evidence discloses that photographs were taken of finger marks

in situ

on the articles in question and these photographs presumably remain in existence as secondary evidence. However, no case on affidavit has been sworn to that effect or to indicate the reliability of such secondary evidence, nor has any sort of expert evidence whatsoever been offered to the Court to suggest how such secondary evidence, if found to be admissible, could eliminate the risk of an unfair trial. I think it is quite inappropriate to assume that this or any other court operating in an adversarial system can or should bring some expertise of its own to bear (assuming it had it) on the techniques whereby evidence is derived from an original exhibit or to expect a court to determine without evidence the accuracy or reliability of any product so derived. Even if a court could perform such a function, it still leaves completely unanswered various questions as to what other information an examination of the original exhibits might have yielded up in this case. It fell to the appellant to place such information before the court. In the various video cases to which I have referred, evidence which sought to rebut prejudice was in each case placed on affidavit before the court, notably in

Scully v DPP

, where the information thus provided by the respondent completely removed any apprehensions that an unfair trial might ensue.

I do not think it wrong, improper or unreasonable for the applicant’s advisors to have rested their application on the basis which they have done, namely, that without the articles their expert has stated that he cannot conduct a proper evaluation. I am not sure that any expert could say more in relation to items no longer available for examination. That is not to determine this application on the basis of blame for losing the primary evidence, but rather to hold on the particular facts of this case that it falls to the appellant to satisfy the Court that no real risk of an unfair trial exists. I hasten to add that, had the appellant elected to meet the assertion of prejudice by evidence in rebuttal, either by means of expert or other evidence on affidavit, the appellant might well have dispelled apprehensions that the loss of the primary evidence in this case gives rise to a real risk of an unfair trial. I would dismiss the appellant’s appeal and uphold the finding of the learned High Court judge on this issue.

On the separate issue of delay, and in marked contrast with how the case on lost evidence has been met, the appellant has fully explained why delay occurred in this case and has placed on affidavit evidence which satisfies me that the applicant is not entitled to relief on this ground. I agree with the judgment of Hardiman J. on this issue. I would therefore uphold the findings of the learned High Court judge and dismiss both appeals.

Brendan McFarlane