THE SUPREME COURT
[S.C. No. 311 of 2005]
Murray C.J.
Denham J.
Hardiman J.
Between/
Denis Ludlow
Applicant/Respondent
and
The Director of Public Prosecutions
Judgment delivered the 31st day of July, 2008 by Denham J.
1. This case arises out of an application by Denis Ludlow, the applicant/respondent, "the applicant", to injunct criminal proceedings against him. It is an appeal by the Director of Public Prosecutions, "the Director", from the judgment of the High Court (Dunne J.) made on the 16th July, 2005, and the order of the 20th July, 2005, which ordered an injunction against the Director, restraining the continuation of a prosecution against the applicant in respect of Bill Number CW0012/2003, and which declared that the Director and An Garda Síochána were obliged to preserve the evidence in issue.
2. The facts
This is a case raising the issue of the preservation of evidence pre-trial. Thus the facts are a critically important aspect of the case.
3. It is alleged that the applicant was in a road traffic accident on the 8th October, 2002, involving the vehicle he was driving and a vehicle driven by Darren O'Neill, on a public road at Roscat,
Co Carlow. Darren O'Neill was driving his motor car, accompanied by his wife and child, at approximately 2 p.m. on that date. It is alleged that the applicant was travelling in the opposite
direction. It is also alleged that the applicant's vehicle slid onto its incorrect side of the road and collided with Darren O'Neill's vehicle. At that time the applicant was driving an Iveco truck
registration number 98 KE 8097 in the course of his employment as a truck driver. The collision took place on a sweeping bend of the road. As a result of the collision Darren O'Neill died on the
11th November, 2002. From statements taken by the gardaí it appears that at the time of the collision it was raining, the road was greasy, neither of the vehicles were going excessively fast, and that
the lorry seemed to slide across the road.
4. An inspection of the applicant's vehicle was carried out on the day of the accident by Sergeant Donal Prendergast, a Public Service Vehicle Inspector. He stated that the right front and right
inner tyre of the rear axle were excessively worn and he concluded:-
"The effect of excessively worn tyres would have been to contribute to a loss of direction control of the vehicle in wet road conditions."
5. The applicant made a statement dated 27th January, 2003 and on the 11th February, 2003 attended Tullow Garda Station voluntarily. The applicant was summonsed to appear at Tullow
District Court. On the 24th July, 2003, the applicant was returned for trial to Carlow Circuit Court. On the 24th July, 2003, a Book of Evidence was served on the applicant.
6. Originally the applicant was returned for trial on the following charge:-
"On the 8th October 2002 at Roscat, Tullow, Co. Carlow a public place in the District Court Area of Tullow, did drive a vehicle, registered no. 98 KE 8097 in a manner (including speed) which having regard to all the circumstances of the case (including the condition of the vehicle, the nature, condition and use of such place and the amount of traffic which then actually was or might reasonably be expected then to be therein), was dangerous to the public, thereby causing the death of another person, namely Darren O'Neill. Contrary to section 53(1) (as amended by section 51 of the Road Traffic Act 1968) and (2)(a) (as amended by section 49(1)(f) of the Road Traffic Act, 1994) of the Road Traffic Act, 1961, as amended by section 23 of the Road Traffic Act, 2002."
7. Subsequently, two summary offences were added to the indictment. These are:-
"On 08 October 2002, at Roscat Tullow Co. Carlow a public place in the District Court area of Tullow, did use a mechanically propelled vehicle, registered no. 98 KE 8097 while the pneumatic tyre fitted to said vehicle, namely the right rear tyre, was excessively worn.
Contrary to Article 16(7) of the Road Traffic (Construction, Equipment and use of Vehicle) Regulations 1963 as amended.
On 08/10/ 2002, at Roscat Tullow Co. Carlow a public place in the District Court area of Tullow, did use a mechanically propelled vehicle, registered no. 98 KE 8097 while the pneumatic tyre fitted to the said vehicle, namely the right front tyre, was excessively worn.
Contrary to s.16(7) of the Road Traffic (Construction, Equipment and use of Vehicle Regulations) 1963 as amended . . .".
8. By letter dated 25th September, 2003, the applicant's solicitor informed the State that the applicant intended putting the State on full proof of all witness statements and exhibits. By letter
dated 9th October, 2003, the State wrote to the applicant's solicitor indicating the probability that the case would not be reached until the Criminal Sittings commencing 17th February, 2004, but
that the applicant would need to be present on the 14th October, 2003 to answer bail.
9. By letter dated 29th October, 2003, the applicant was informed that the Director had directed that the two District Court summonses, referred to above, be added to the indictment,
pursuant to s.6 of the Criminal Justice Act, 1951.
10. On the 15th January, 2004, the solicitor for the applicant wrote to Dennis P. Wood, Consultant Forensic Engineer, requesting that he investigate the circumstances and the vehicle on behalf
of the applicant. By letter dated 16th January, 2004, Mr Woods requested that the tread depth details of the tyres on the applicant's vehicle taken by Sergeant Prendergast, be made available to
him, and he inquired whether the truck tyres were available for inspection.
11. On 23rd January, 2004, the solicitor for the applicant requested information regarding tread depth measurements taken by Sergeant Prendergast and inquired in the alternative if the tyres
were available for inspection. He was informed by letter dated 5th February, 2007, that he would be reverted to when instructions were received from the gardaí. Reminders were sent by letter
dated 29th April, 2004 and 4th June, 2004. On 10th June he was informed that they were still endeavouring to obtain information regarding tread depths from Sergeant Prendergast.
12. On the 18th August, 2004, the solicitor for the applicant received a letter dated 13th August, 2004, enclosing, by way of additional evidence, statements of Garda John Morrissey and
Sergeant Donal Prendergast, together with photographs of the relevant tyres on the vehicle. Sergeant Prendergast's statement gave information as to the alleged tread depths and patterns of the two
relevant tyres on the truck, and stated that the two tyres were not available for inspection as they had remained on the truck and after the inspection the vehicle was returned to the owner.
13. In an affidavit sworn on the 18th February, 2005 Garda Sergeant Donal Prendergast deposed, inter alia, that he is a Public Service Vehicle inspector, and was called to the scene of the
accident on the 8th October, 2002. He examined the vehicle which had been driven by the applicant. It was an Iveco truck registered number 98 KE 8097. He also examined the other vehicle.
His examination took approximately two hours. He found a number of defects in the vehicle driven by the applicant, including excessively worn tyres and malfunctioning recording equipment, the
tachograph. He stated that the applicant also failed to produce tachograph charts. He deposed:-
"… The principal defects in the applicant's vehicle material to the present applicant were that right front tyre was excessively worn and the right inner tyre on the rear axle was excessively worn. The effect of excessively worn tyres would have been to contribute to a loss of direction control in wet road conditions. It had been raining that day and the road was very wet.
4. I say that the applicant was present at all times during my examination of the vehicle which he was driving. Following my examination, the truck had to be removed from the scene of the accident by towing, owing to the extent of the damage. The vehicle was returned to the applicant about approximately 6.30 p.m. on October 8, 2002.
5. I say that in the course of my examination of the said accident scene, I took several photographs of both vehicles and of the scene of the accident. The applicant was present while I was taking the said photographs. I beg to refer to copies of the said photographs upon which, pinned together and marked with the letter "A", I have signed my name prior to the swearing thereof.
6. I say that the Gardaí did not retain possession of the said vehicle or the tyres after the date of the accident. I say that the applicant was clearly aware that neither the vehicle nor the tyres had been retained by the Gardaí and that they had in fact been returned to the owner as he was in fact directly involved in so returning them."
14. Garda John Morrissey deposed an affidavit on the 18th February, 2005. He stated, inter alia:-
"4. I say that the applicant herein was driving a blue Iveco box lorry, registration number 98 KE 8097, owned by one Ray Snowdon by whom the applicant was employed. I say that I investigated this accident together with Sergeant G. Connolly. I drew up a sketch of the scene. I say that later on the evening of the day on which the accident occurred, the applicant's vehicle was examined by Sergeant Donal Prendergast who is a PSV Inspector attached to Naas Garda Station. I beg to reform the affidavit sworn herein by the said Donal Prendergast when produced. I say that this examination revealed a number of faults in the applicant's vehicle. These included the fact that the right front tyre was excessively worn and that the right tyre on the rear axle was also excessively worn.
5. I say that on February 11, 2003, the applicant herein called to Tullow Garda Station. He was informed by me that I wished to inform him that I wished to speak to him in relation to the aforementioned traffic accident. Sergeant Connolly informed the applicant that he was not arrested and was free to leave at any time. The applicant agreed to speak to Sergeant Connolly and myself. A memo of the said interview was recorded after caution.
6. I further say that on October 8, 2002, the date of the said accident, after Sergeant Prendergast had completed his examination of the vehicle being driven by the applicant and the tyres on that vehicle, he returned it to the applicant himself for the purpose of returning it to his owner. The applicant was therefore fully aware from that point onwards that the vehicle, with the same tyres, was in fact returned to the owner.
7. Sergeant Prendergast carried out his examination of the vehicle and its tyres at the scene of the accident in the presence of the applicant. The applicant was therefore aware that the tyres had been examined and was therefore in a position to have them independently examined himself if he wished to do so.
8. I say that before leaving the scene of the accident I issued the applicant with an oral warning as to his driving.
9. I beg to refer to paragraph 13 of the affidavit sworn herein by Andrew Coonan in which it said that it is unclear when, after October 8, 2002, the vehicle and tyres were returned to the owner. I say that it was perfectly clear to the applicant that they were returned to the owner on that date and that the applicant himself was instrumental in so doing.
10. I beg to refer to paragraph 18 of the affidavit sworn herein by Andrew Coonan when produced wherein it is said that the Gardaí without notice to the applicant handed back the tyres of the applicant's employer on a date unknown herein. As already averred herein, the applicant was in fact fully aware of the date on which the circumstances in which the vehicle and tyres were returned to the owner.
11. I say that as part of his inspection of the vehicle and the tyres, Sergeant Prendergast took several photographs of the tyres as they were in the immediate aftermath of the accident and of the scene of the accident. I beg to refer to the affidavit sworn herein by Sergeant Prendergast and to the photographs exhibited therewith.
12. I say that it would not be practicable or feasible for the Gardaí to seize and retain tyres pending completion of a prosecution for insufficient thread (sic) on tyres.
13. I further say that for well over a year after the accident no request was received from the applicant herein or by anybody acting on his behalf to have the vehicle or the tyres independently inspected."
15. Later Sergeant Prendergast added to his previous statement by the following statement:-
"I wish to add to my previous statement the following facts. I photographed the scene of the accident on the 8th October, 2002, at approximately 4.40pm.
Examination:-
The tyres fitted to the vehicle were front right tyre was a Dunlop 295,80,R22.5. It had 3mm of thread (sic) pattern on the outside grooves, the inner half of the tyre was completely worn the main grooves did not continue around the full circumference of the tyre.
Front left tyre was a Dunlop 295,80,R22.5 it had a 6.5mm of thread (sic) pattern full width.
The rear axle had twin wheels fitted to each side.
The left inner tyre was new and had 8mm of thread (sic) pattern.
The left outer tyre was a bridgestone and had 7mm of thread (sic) pattern full width.
The right inner tyre had no grooves 75% of the full width the outside grooves had 4mm.
The right outer tyre was a new tyre and had 8mm of thread (sic) pattern. Truck tyre's are standard and have four main grooves in the thread (sic) pattern, the full circumference of these tyres were measured with a calibrater measuring device.
The two tyres that were excessively worn, are not available for inspection, they remained on the truck. After inspection, the vehicle was returned to its owner."
16. Thus there is evidence available on the condition of the tyres, from the Public Service Vehicle Inspector. This is available to the applicant, and he may ask his Forensic Engineer to give
evidence on it, and to raise queries.
17. The applicant was present when the vehicle was examined by the Public Service Vehicle Investigator. The applicant was aware that the state of the tyres was relevant. Also, Garda
Morrissey, before leaving the scene of the accident, issued the applicant with an oral warning as to his driving.
18. However, the applicant was not the owner of the vehicle. In a statement the owner of the truck, and the employer of the applicant, Mr Snowdon, in response to a question as to whether the
truck was roadworthy, said "In my opinion yes it was". He said that he usually checked the truck every Saturday when the truck was not working. He said that he checked the lights and tyres, and
any other complaints made by the drivers. On being informed of the PSV Inspector's opinion on the tyres, he stated:-
"I noticed that the front right tyre was wearing more so than the left and this was also one of the complaints I had for the garage. I did not think it was below the legal limit."
He was of the opinion that the steering and brakes were very good. When asked whether the applicant ever mentioned about the front tyres being bald, he replied:-
"He might have mentioned the front tyre was wearing but I'm not certain."
19. In an interview with the gardaí on the 11th February, 2003, the applicant informed the gardaí that he had been in his job with Ray Snowdon about three weeks when the accident occurred. He explained how the accident happened:-
"I think there is a slight left bend just before where the accident took place. Just as I was in the bend the front of the lorry started to slide."
Asked whether he could think of a reason why the lorry started to slide he answered:-
"I honestly can't."
He was asked:-
"Q. I would put it to you Denis that the reason for the truck sliding was because the two tyres were worn?
A. No, I don’t think so, because I had no trouble at all that morning and secondly have come through a serious (sic) of bad s-bends just prior to the accident and had no problems at all. Q. But this bend wasn't an s-bend? A. No. Q. Could it have been you were coming a little too fast for the conditions? A. No. I was driving well within the road conditions and I don't know the road, which means I was driving even more carefully. Q. Denis you say you were nearly stopped when the collision occurred. There are 3 witnesses to say that you were moving and one of them says that you drove the car backwards. A. No. I don't agree with that.
Q. You didn't drive the car backwards up the road?
A. No."
20. There was evidence also that the applicant was driving the truck knowing that the tachograph was not working and that he knew he should not have driven the lorry with the broken tachograph, but he said that he had told Mr Snowdon, and that he had a family to feed. He stated, "Basically I was only working for Mr Snowdon for about 3 weeks and I've got four kids and a mortgage."
21. The truck and tyres were returned to the applicant's employer Mr Snowdon on the day of the accident. Sometime after that Mr Snowdon disposed of the tyres.
22. The Law
The law relating to the issue raised by the applicant as to the pre-trial preservation of evidence has been addressed in recent years. See Braddish v. Director of Public Prosecutions [2001] 3 IR 127; Dunne v. Director of Public Prosecutions [2002] 2 IR 305; Bowes v. Director of Public Prosecutions [2003] 2 I.R. 25; Scully v. Director of Public Prosecutions [2005] 1 IR 242; McFarlane v. Director of Public Prosecutions [2008] IESC 7; Savage v. Director of Public Prosecutions IESC 39. This law has its roots in The Queen v. Lushington Ex Parte Otto [1894] 1Q.B. 420 at pp 423 and 424; Murphy v. Director of Public Prosecutions [1989] I.L.R.M. 71.
23. Principles
I am satisfied that the following are relevant principles. (i) Each case requires to be determined on its own particular circumstances. (ii) It is the duty of the Court to protect due process. (iii) It is the duty of An Garda Síochána to preserve and disclose material evidence having a potential bearing on the issue of guilt or innocence, as far as is necessary and practicable. (iv) The duty to preserve and disclose, as qualified by Lynch J. in Murphy v. D.P.P., cannot be defined precisely as it is dependent on all the circumstances of the case. (v) The duty does not require An Garda Síochána to engage in disproportionate commitment of manpower and resources and must be interpreted in a fair and reasonable manner on the facts of the particular case. (vi) In the alternative to keeping large physical objects as evidence, such as motor vehicles, it may be reasonable in certain circumstances for the garda to have a forensic report on the object. (vii) However, an accused should, in general, be given an opportunity to examine or have examined such evidence. (viii) If the evidence no longer exists the reason for its destruction is part of the matrix of the facts, but it is not a determinative factor in the test to be applied by the court. (ix) These principles are subject to the fundamental test to be applied by the court, that being whether there is a real risk of an unavoidable unfair trial, as described by Finlay C.J. in Z. v. Director of Public Prosecutions [1994] 2 I.R. 476 at p.506:-
"This Court in the recent case of D. v. The Director of Public Prosecutions [1994] 2 I.R. 465 unanimously laid down the general principle that 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."
24. Relevant factors and test
Relevant factors in this case are as follows:-
(i) The applicant was the driver of the vehicle in issue and was present when the tyres were inspected by Sergeant Prendergast.
(ii) The vehicle was returned to the owner on the evening of the accident. Neither it nor the tyres were retained by An Garda Síochána, or any other body on behalf of the prosecution. The applicant was involved in returning the vehicle to its owner on the day of the accident.
(iii) The applicant was not the owner. The applicant was the employee of the owner.
(iv) The owner had possession of the truck.
(v) The owner disposed of the tyres.
(vi) Sergeant Prendergast examined the truck and the tyres and wrote a report and took photographs. These are available to the applicant and may be used by the applicant and any experts he may employ on his behalf.
(vii) The test to be applied is that described by Finlay C.J., in D. v. Director of Public Prosecutions [1994] 2 I.R. 465 and restated in Z. v. Director of Public Prosecutions [1994] 2 I.R. 976 at p.507:-
"With regard to the general principles of law I would only add to the principles which I have already outlined the obvious fact to be implied from the decision of this Court in the case of D. v. Director of Public Prosecutions that where one speaks of an onus to establish a real risk of an unfair trial it necessarily and inevitably means an unfair trial which cannot be avoided by appropriate rulings and directions on the part of the trial judge.
The risk is a real one but the unfairness of trial must be an unavoidable unfairness of trial."
(viii) The question is whether the absence of the tyres for inspection by the applicant creates a real risk of an unfair trial, which is unavoidable.
25. Best Practice
As I have indicated recently in my judgment in Savage v. Director of Public Prosecutions [2008] IESC 39, it would be best practice for An Garda Síochána to give notice, to inform an accused, or a potential accused, at the time of giving an oral warning, 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, or take any other relevant steps, if they so wish. The notice could inform of the place where the vehicle was, where it could be examined, and of the intention to destroy the vehicle, or part of a vehicle, at a future date, perhaps one month hence. Such notice would alert the person to the situation and give time to have the evidence examined if they so wished, or make a reasonable request that it not be destroyed. This approach assumes that the gardaí have taken control of the evidence.
However, in this case the gardaí did not have possession of the truck and tyres and did not dispose of the tyres. Rather the truck was returned to the owner, with its tyres still on. The owner, employer of the applicant, then disposed of the tyres.
In such circumstances it may be best practice for the gardaí to retain the evidence, to have it examined, and to inform an accused or a potential accused, that such examination has taken place, and that the items will be destroyed at a stated time.
26. The prosecution in this case turns on the state of the two tyres. While two summary offences were added to the indictment, this is not about a summary trial of summary offences.
27. The core of the case relates to the indictable offence of dangerous driving causing death. This serious offence has the potential for a very significant penalty.
28. This case will turn on the state of the two tyres. It could turn on the depth of the treadmark on the two tyres. The applicant, accused of this indictable offence, has not the tyres before the
court, or the opportunity to have a forensic expert examine them on his behalf. He did not have control of the tyres after the accident, as they belonged to his employer, who destroyed them.
29. This case calls for very careful consideration. It falls to be decided on its own facts.
30. It has been argued that the importance of the two tyres was apparent at the scene of the accident. What should the gardaí do in such a situation? In general, if it is critical evidence of a
serious road accident, steps should be taken to preserve the evidence until trial, or until the accused (who may not be the owner) has had time to have the evidence examined by his experts. The
potential evidence of the gardaí in this case shows that it would have been obvious to them on inspection of the tyres that the tyres were a critical piece of evidence. Just as it would not be
appropriate to return a bloody knife at a scene of an assault to its owner, until DNA and other forensic evidence is taken, so too would it be best practice not to return defective tyres to their owner
at the scene of a serious road traffic accident, or to enable them to be destroyed, until an accused or relevant party has had the opportunity to have them analysed.
31. Difficulties of storage may often be met by enabling forensic evidence to be obtained by experts on behalf of an accused. However, that is an issue for determination after the opportunity
has been given to examine the relevant evidence.
32. In view of the nature of the prosecution, and the facts of the case, I am satisfied that neither photographs nor the garda statements, are adequate in the circumstances to the defence to enable
a fair trial.
33. Applicant Not Owner
I decide this case on its own facts. It relates to a particular prosecution which centres on two excessively worn tyres. It is not a general rule that worn tyres require to be preserved in all cases prior to a prosecution. In many cases the relevance of the tyres may not be central to the prosecution. A report may cover all relevant facts sufficiently to enable a fair trial. Cases require to be determined on their own facts.
In this case the tyres were returned to the owner, who disposed of them. He is not the subject of the prosecution. If he were such conduct would have a consequence. A person may not evade a trial by deliberately destroying evidence. In such a situation the common good, and the right of the people to prosecute, through the Director, would weigh heavily. In "delay" cases, if an accused has caused the delay, then that is a very relevant factor for the Court. So too, if an accused destroyed tyres, that would be a relevant factor.
In this case the acts of the owner have deprived the applicant of significant evidence. There is no reason to suspect that the owner acted mala fides. However, the consequence is that relevant and material evidence no longer exists for the applicant's defence.
34. In this review the court is required to make a decision as to whether there is a real risk of an unfair trial which is unavoidable. It is a question of justice. This analysis is required in the context of a prosecution for a serious offence. As Henchy J. stated in The State (Healy) v. Donoghue [1976] IR 225 at p.350:-
"There are thousands of trivial charges prosecuted in the District Courts throughout the State every day. In respect of all these there must be fairness and fair procedures, but there may be other cases in which more is required and where justice may be a more exacting task-master.
The requirement of fairness and of justice must be considered in relation to the seriousness of the charge brought against the person and the consequences involved for him."
There is a serious charge in this case. The evidence relevant to the core issue has not been preserved, and, on the facts of the case, the applicant would be impeded in defending himself on the critical issue of the trial, the state of the tyres. Consequently, I am satisfied that there is a real risk of an unfair trial.
Conclusion
In the circumstances of the case, I would dismiss the appeal and affirm the judgment and order of the High Court.
JUDGMENT of Mr. Justice Hardiman delivered on the 31st day of July, 2008.
Over the last number of years, the Superior Courts have had to consider a number of cases where persons charged with criminal offences seek relief by way of judicial review because the gardaí have lost or destroyed evidence, or given items of evidence to third parties who have themselves irretrievably lost or destroyed them. A representative sample of such cases are Braddish v. DPP [2001] 3 IR 127; Dunne v. DPP [2002] 3 IR 305; Bowes v. DPP; McGrath v. DPP [2003] 2 IR 25; Scully v. DPP [2005] 1 IR 242 and McFarlane v. DPP [2008] IESC 7.
An earlier case on the same topic led to the seminal judgment of Lynch J. in Murphy v. DPP [1989] ILRM 171.
This series of cases featured missing evidence of various different kinds. The items in question were as small as video tapes and as large as motor vehicles. From the pattern of losses it appears that An Garda Síochána have considerable difficulty in retaining items of evidence in secure custody for any period of time. It is not clear, and it is not relevant, whether this difficulty arises from procedures (or the lack of them) within An Garda Síochána itself or from deficiencies in the premises and facilities provided for the gardaí. The pattern of cases led the Court to observe at p.41 of the report in McGrath, which was also a case of dangerous driving causing death:“Dangerous driving causing death is an offence whose seriousness has been underlined by the fairly recent increase of the maximum penalty to ten years imprisonment. Experience shows that it is almost unique, amongst offences not requiring a specific intent, in carrying possibility of a significant custodial sentence for a convicted person of good character. One would hope that its very seriousness would, in future cases, ensure that items of manifest evidential potential are properly preserved. These two cases tend to indicate that there may be a need for a more cohesive practise amongst the gardaí in the preservation or disposal pre-trial of evidence which is potentially relevant to the defence in the criminal proceedings. The adoption and observation of suitable guidelines might assist in avoiding pre-trial litigation of this nature”.
In the case of Bowes v. DPP, which was heard jointly with McGrath’s case in this court, the gardaí had lost a motor car which, the prosecution said, had been used for the transportation of a significant quantity of drugs, and had been seized by the gardaí. In the circumstances of the case the Court refused to prohibit the prosecution: when the matter proceeded in the trial court it transpired that the gardaí had also (but separately) lost a considerable quantity of drugs, large in bulk and high in value, alleged to have been in the car the defendant was driving, which had itself been lost earlier.
From the fact that “lost evidence” cases continue to come before the Courts it appears that there is a serious problem at least in some units of An Garda Síochána in relation to the preservation of items of evidential significance.
There may have been a time when Road Traffic offences, even those involving fatalities, were regarded as not being criminal cases in the true sense of the term and therefore perhaps were processed or investigated in a somewhat careless or superficial manner. This is no longer the case. The considerable increase in the maximum penalty has already been noted. Only a newspaper reader’s knowledge of the law is necessary to underline the fact that these are effectively the only sort of case where a respectable person without previous convictions may go to jail for a significant period of years in respect of an offence with no requirement for specific criminal intent. No doubt this is as it should be: certainly the public authorities pay for advertising which stresses this specific fact in the interest of road safety, in ads where the besuited driver is led off to a dark cell, and a heavy metal door is ominously slammed behind him.
These are not the only changes in the enforcement of Road Traffic laws. The days when the garda evidence was given from a scrawled drawing in a note book, with all distances and times approximate only, have also passed away. Nowadays serious road traffic accidents are investigated by highly trained and specialised accident investigators who are members of An Garda Síochána. The map prepared in this case, for instance, is of a professional architectural standard, in total contrast to the crumpled scrawls one remembers from bygone years. In many cases, of which this is one, there is no direct evidence presented of dangerous or deficient driving: the evidence is entirely technical, indirect and leaves the offence to be inferred, so that any positive defence must be technical as well. The defendant will often require to deploy expert testimony in making his defence. Even with this dramatically increased sophistication, however, physical evidence continues to be lost or mislaid or given to a third party who subsequently disposes of it, sometimes frustrating the work of this new, highly skilled cadre of investigators. This Court has given warnings and advice on the subject, from my own words in McGrath (2003) to those of Denham J. in Savage just a few weeks ago: they have been ignored.
Factual background.
In the present case the defendant, Mr. Ludlow, is charged with dangerous driving causing death and a number of summary offences, some of which will be discussed below. It appears that on the 8th October, 2002, he was driving a lorry belonging to his employer, a Mr. Snowden, at a place called Roscat, Tullow, Co. Carlow. A Renault Scenic was coming in the opposite direction, from the direction of a place called Fighting Cocks. The accident occurred at about 2pm on that day: it was raining quite heavily and the road surface was greasy. It had in fact been raining for most of the day.
According to the proposed evidence of the eye witnesses, neither vehicle was travelling particularly or excessively fast, and the accident occurred when the lorry “slid on to its incorrect side of the road and collided with the deceased’s vehicle”. There is no question of drink, drugs or fatigue, on the evidence.
In this collision the driver of the Scenic, Mr. O’Neill, sustained injuries as a result of which he unfortunately died three days later.
The whole of the case made against the applicant is that certain tyres on his vehicle were excessively worn: it is said that the front right hand tyre was in this condition as was the right inner tyre at the rear. It is further said that “The overall effect of the excessively worn tyres would contribute to the loss of direction control of the vehicle in wet road surface conditions”. This is admissible as the PSV Inspector’s expert opinion. It can only be answered by expert testimony. If the defendant’s expert is to give evidence on a footing of equality with the prosecution’s expert, he must have the opportunity to examine the items which the prosecution’s expert examined. Otherwise the effect of his evidence will be undermined by the simple but devastating question “You never saw the tyres, did you?”. His evidence would be merely speculation and could not hope to stand against that of an expert who saw the relevant items.
The gardaí, including a qualified public service vehicle (PSV) Inspector examined the lorry on the road at or near the point of impact in the presence of various people including the defendant and later, his employer. The garda evidence (Garda Morrissey) is that “Before leaving the scene I issued Denis Ludlow with the oral warning in relation to his driving…”. This is, presumably, the notice of intention to prosecute mentioned in s.104 of the Road Traffic Act, 1961, as amended. It is not however alleged that there was any mention of the condition of the tyres given to the defendant at that stage, though it was clear that they, like the rest of the vehicle, had been carefully examined by expert gardaí.
The need to give this oral warning (that the question of a prosecution will be considered) has subsequently been removed by statute. However, while it existed it could be complied with either by serving a summons within fourteen days of the action alleged to constitute the offence, or by giving an oral warning within 24 hours or by serving a notice in writing stating “brief particulars of the act or acts alleged to constitute the offence”. It is, therefore, significant that no mention of the state of the tyres is alleged to have been made at the time, or for upwards of a year afterwards.
It is however clear to anyone reading the Book of Evidence that the whole of the case against the defendant is based on the proposition that the tyres were excessively worn and that this would contribute to loss of direction control on the vehicle in the conditions which pertained. It is also clear that the question of the state of the tyres as well as other topics was the subject of questions to the defendant some days later, when he called to the garda station and he said in answer to questions that he had walked around the vehicle by way of checking it when he collected it on the morning of the accident in Edenderry. Indeed, when asked he said that “I walk around it every day doing a visual check for lights and tyres”. Asked about the PSV Inspector’s contention that some tyres were excessively worn he said “I knew the tyre was low i.e. that the thread was low and that it would need changing soon. But I didn’t think it was illegal… all the tyres looked okay to me.
The defendant’s employer, Mr. Ray Snowden, asked whether Mr. Ludlow had ever mentioned to him about the tyres being bald said:“He might have mentioned the front tyre was wearing but I’m not certain”.
He also told the gardaí that he himself had been a haulier for 24 years and had previously been a mechanic. His opinion of the state of the vehicle was that “The front right tyre was wearing more so than the left and this was also one of the complaints I had for the garage. I did not think it was below the legal limit.” He said he usually checked the trucks every Saturday and he checked any complaint made by the drivers.
Against the above background it is now necessary to consider the course taken by the legal proceedings brought against the applicant.
The Prosecution.
At some date prior to the 24th July, 2003, and probably some months prior to that date, the applicant was served with a summons alleging dangerous driving causing death on the 8th October, 2002, at Roscat, Tullow, against him.
On the 24th July, 2003, the applicant was returned for trial on this count alone to the Carlow Circuit Criminal Court on the 14th October, 2003.
On the 29th October, 2003, the Carlow State Solicitor on behalf of the Director, wrote to the applicant’s solicitor saying that the Director had directed two additional summonses relating to excessively worn tyres be added to the indictment pursuant to s.6 of the Criminal Justice Act, 1951.
On the evidence, this was the first specific mention of what now transpires to be the entire factual thrust of the case against the applicant - the state of the tyres. It occurred some twelve months and three weeks after the accident. In my view, though it would have been clear to the applicant that the whole of his vehicle, not excluding the tyres, had been examined on the day of the crash he had no reason until the 29th October, 2003, to consider that the entire thrust of the case against him would be based on the state of the tyres. Nothing of the sort was said to him by the gardaí or the State lawyers.
What happened next is not entirely clear: no doubt the applicant and his solicitor took the advice of Counsel and perhaps others. The solicitor had been told by the prosecuting solicitor that the case would not be proceeding in October 2003 due to other cases having priority and would go to the next term, the Hillary term of 2004. On the 15th January 2004 the applicant’s solicitor, Mr. Coonan, wrote to Dr. Denis P. Wood, a Consulting Engineer, asking him to investigate the circumstances of the case on the applicant’s behalf. On the following day Dr. Wood responded requesting that the thread depth details of the tyres on the applicant’s vehicle be made available to him and enquiring whether the truck tyres were available for inspection. The solicitor then wrote promptly to the prosecutor’s solicitor seeking this information.
After two reminders the State Solicitor eventually replied on the 10th June, 2004, saying that he was still endeavouring to obtain the information regarding thread depths from the gardaí. He also served additional evidence including a book of photographs and additional statements. On the 18th August, 2004, the defence solicitor received further additional evidence being statements of a Garda Morrissey and a Sergeant Prendergast, PSV Inspector, and additional photographs of two allegedly worn tyres. However, he also stated that the tyres were not available for inspection as they had “remained on the truck and after inspection the truck was returned to its owner”. The owner, Mr. Snowden, later confirmed this and said he had brought the truck with the tyres on it back on the day of the accident or the following day and that he had shortly afterwards disposed of the tyres. He said he had not been requested by the gardaí or anyone else to preserve the tyres. This was not contradicted.
It therefore appears that the tyres had been disposed of by the gardaí by returning them to Mr. Snowden on or about the 8th or 9th October, 2002. The central role attributed to the condition of the tyres in the accident was not, on the evidence, communicated to the defendant until the 29th October of the following year, 2004, by which time the tyres had been already disposed of. Ten months later the unavailability of the tyres was communicated by the prosecution to the defence, when they made a specific enquiry and after some reminders.
The chronology of the judicial review proceedings will be dealt with below.
A duty to preserve evidence.
The learned trial judge aptly summarised the applicant’s principal case, at pages 7 and 8 of her judgment, as follows:“It is pointed out that the main thrust of the case against the applicant is the allegation as to excessively worn tyres. The sequence of events following the collision on the 8th October, 2002, was outlined. It was submitted on behalf of the applicant that while he was present when the vehicle was returned through him to its owner he would not have been aware of the significance of the tyres until he was charged in June 2003 at the earliest and perhaps not until served with the Book of Evidence on the 24th July, 2003. By then the tyres were no longer available. It is argued that as a result of the failure of the Director of Public Prosecutions to preserve the tyres the applicant has been left with no opportunity to test or rebut the evidence of Sergeant Prendergast in relation to the thread depth on the tyre which is central to the three charges in the indictment”.
It has been recognised for well over a century that the gardaí, as a police force, have both a right and a duty to take possession of and retain any evidence which may affect the guilt or innocence of the accused person. This was established as long ago as Dillon v. O’Brien and Davis (1887) 20 LR IR 300. This case has been cited with approval and respect on a number of occasions both in this country and in the United Kingdom. It was an action for detinue of certain articles which policemen had seized at the time of an arrest. The defendants said that the items were required as evidence to support certain charges. Palles C.B. upheld this plea saying at p.317:“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 trial. His custody is of no value if the law is powerless to prevent the extraction or destruction of this evidence, without which a trial would be no more than a empty form. But if there be a right to production or preservation of the evidence, I cannot see how it can be enforced otherwise than by capture”.
Commenting on this passage in Dunne v. DPP [2002] 2 IR 305 at 324, I said that the right to retain items of evidential significance gave rise to a duty to do so in an appropriate case, for the reasons set out in the report. In particular: “The right (to take possession of and retain evidence) does not exist in a vacuum, but for a purpose. That purpose relates to the due administration of justice. It follows from this that it must be exercised in an impartial manner and not for the sole advancement of one side, or recklessly. I believe that these conclusions follow inexorably from the judgment of Palles C.B”.
This judgment was referred to by Lynch J. in the leading case of Murphy v. DPP [1989] ILRM 71 in the following terms:“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”.
In that case the applicant had been charged with stealing a car and with driving offences. The car was in possession of the gardaí and the applicant’s solicitor had indicated a desire to examine and test the car, specifically for fingerprint evidence. But the gardaí parted with the car without either examining forensically themselves or notifying the applicant’s solicitor that they intended to part with it. This was held in the circumstances to amount to a breach of fair procedures. Lynch J. said at p.76:“It may well be that nothing would have been discovered by the requested forensic inspection, but the applicant has been deprived of the reasonable possibility of rebutting the evidence proffered against him. It is also clear that there is no way in which this loss to the applicant of possibly corroborative evidence can now be remedied by any further inspection of the car”.
I wish to express my specific agreement with the following passage of the learned trial judge’s judgment, at p.18:“There cannot be any doubt as to the importance in the present case of the tyres for the purpose of permitting a forensic examination to be carried out with a view to obtaining evidence with which to rebut the technical evidence to be given by Sergeant Prendergast. Therefore, I am satisfied that there was a duty to preserve the tyres. There is no evidence before me to suggest that it was not possible to do so”.
This is a case where the defendant is charged with a criminal offence carrying a maximum sentence of ten years imprisonment. The case against him is based wholly on a forensic examination of the tyres. Without, in my view, any fault on his part, the prosecution’s forensic evidence will be given by a qualified and skilled expert whose evidence will be virtually impossible to rebut because the defendant does not have available to him the tyres on an examination on which it is based. I do not see that the defendant can be compelled to admit, or to assume, the accuracy of the prosecution’s expert evidence, measurements or photographs and neither has it been suggested in evidence that the photographs permit one to gauge the precise depth of the thread of the tyres. This is a case where a fraction of a millimetre may be the difference between guilt and innocence. If any experienced lawyer asks himself or herself whether, if retained on behalf of the defendant, he or she would direct an expert examination of the tyres, there can only be one answer. It would professional negligence not to do so in a case like this where the defendant’s livelihood (he is a professional driver) and liberty may easily be at stake.
The foregoing conclusions are, in my opinion, strongly supported by a consideration of the Road Traffic Act (Construction Equipment and Use of Vehicles) Regulations 1963. These provide at regulation 16(7):-
“No tyre used on a vehicle or trailer shall be excessively worn and, as respects pneumatic tyres on passenger vehicles and goods vehicles –
(a) the requirement of this sub-article shall be deemed to be complied with in every case where the thread of the tyre displays throughout its breath and around its entire circumference a pattern the relief of which is clearly visible and is at least one millimetre in depth,(b) the requirement of this sub-article shall be deemed not to be complied with in every case where no portion of the thread pattern is clearly visible on the contact wearing area of the tyre under normal operating conditions or where any portion of the fabric or carcass of the tyre is visible at any point on the contact wearing area under normal operating conditions.”
These provisions have been amended, most relevantly by S.I. 358 of 1991. The effect of the amendment is to increase the thread depth required to 1.6 millimetre. But the basic point is the same: a fraction of a millimetre may be the difference between guilt (of an offence carrying a maximum sentence of ten years imprisonment) and innocence. The scheme of the legislation from 1961 onwards was that stark: the requirement of the Article (as to the depth of the thread on tyres) “shall be deemed to be complied with” if the depth of the thread is 100th of millimetre greater than a particular, specified depth. Otherwise, in a case like this, the defendant is on risk of a long prison sentence.
The thrust of the prosecution’s case against the present application is a technical one. It is said that the applicant (the defendant in the criminal proceedings) did not seek an examination of the tyres early enough; that he did not seek relief by the way of judicial review soon enough after it transpired that the tyres had been disposed of; and that it should have been plain to him, by virtue of his occupation, or to his employer, that the tyres were central to the case at a much earlier stage.
In my view all of these complaints by the prosecutor ring hollow. This is so especially if the time taken by the defendant to act is contrasted with the time required by the prosecutor or the gardaí, professionals in the field, to attend to their part of the case. The applicant is a lorry driver: it is said that it should have been obvious to him that the tyres were an important part of the case even though the prosecutor and his professional advisers did not express the importance of the tyres until a date just before the 29th October, 2003, more than a year after the accident. But, as the learned trial judge points out, it would appear from the statement of the PSV Inspector, Sergeant Prendergast, that the significance of the tyres was clear to him on the day of the accident. If this is so, it is quite indefensible that he or the garda authorities would part with the possession of the tyres without making any arrangement for their preservation, if it is not so then I cannot see how the significance of the tyres ought to have been obvious to a lorry driver if it was not obvious to a garda Public Service Vehicle Inspector.;
The question of the time from which a defendant in criminal proceedings should or can seek to be given sight of evidential material has been debated in a number of cases, notably McGrath, cited above. There, a lady had been charged with dangerous driving causing the death of a motor cyclist: shortly after she was charged she sought facilities for a consulting engineer retained on her behalf to examine the motor cycle. It transpired that the guards had disposed of it before she was charged at all. In those circumstances, the Court held:“It is very difficult to regard time as running against her before the proceedings were commenced. Her only entitlement to have the motor cycle examined arises from her right to a fair trial, which hardly arises until a decision to prosecute is taken and communicated. At the time the gardaí parted with possession of the motor cycle, they did not think it necessary to give notice of their intention to do so to the applicant presumably because they did not know that she would be prosecuted and therefore did not consider that she was entitled to notice”.
I believe that this case was correctly applied by the learned trial judge in her decision under appeal.
In the present case, as in McGrath, the gardaí did not themselves dispose of the relevant item of evidence: they parted with it to the owner or his agent and the latter disposed of it. But the distinction is not a significant one because the actual effect of their parting with possession of the item was to make it unavailable to the defence when they sought it after the case had been commenced. Nor do I consider it relevant that the owner of the vehicle, who disposed of it, was the applicant’s employer. He had employed him only for a couple of weeks and that relationship, without more, does not constitute the employer as the agent of his servant.
The prosecutor also points out that the risk of an unfair trial which the applicant must establish must be an unavoidable risk. He points out that the trial judge, if the case proceeds, will be obliged to take any possible steps to mitigate any unfairness to the applicant arising from the absence of the tyres. He does not, however, suggest any practicable step to that end which would be open to the trial judge. All criminal cases must be tried on the evidence that is actually available, and not on the evidence that might have been available had the gardai fulfilled their duty to preserve the evidence. The trial judge certainly could and presumably would point out that the absence of the tyres was not the defendant’s fault. But he could not do more than this, in my opinion. All suggestions that the judge can mitigate the unfairness caused by missing evidence encounter a number of apparently inescapable legal and logical difficulties. Is it legitimate to ask the jury to acquit on the grounds that the evidence might have been different had the tyres been preserved? In my view it is not. Is it legitimate to ask the jury to consider acquitting on the grounds that they may think the defendant’s case would, or might, have been stronger had the tyres been preserved? Again in my view it is not. The answer to both of these questions is dictated by the inescapable fact that any case must be tried on the evidence actually available. Here the applicant’s case is precisely grounded on the difference between the evidence now available and that which might have been available had the prosecution’s duty to preserve been complied with. If this difference is to be the ground of relief, it must be in these judicial review proceedings and not at the trial, for the reasons given above.
Delay in Judicial Review Proceedings.
It appeared during the hearing that the prosecutor was placing his main reliance on this point. He says the applicant delayed too long in taking judicial review proceedings and is therefore disentitled to relief. He does not allege that any practical consequence much less any prejudice to the prosecution side occurred by reason of this delay but nevertheless seeks a dismissal of the case on the grounds of it.
Order 84 Rule 21 of the Rules of the Superior Courts provides as follows:
“(1) An application for leave to apply for judicial review shall be made promptly at any event within three months from the date when grounds for the application first arose, or six months where the relief sought is certiorari, unless the Court considers that there is good reason for extending the period within which such application shall be made”.
In the present case, of course, it was quite impossible to make the application within any particular period of the destruction of the tyres because of the fact that such destruction was not known to the applicant. When his solicitor wrote seeking an examination of the tyres it took the prosecutor’s solicitor a period of about eight months to establish that they had been disposed of and were unavailable. The reason for this, according to the prosecutor’s solicitor, was that he was awaiting information from the gardaí. The defence solicitor sought access to the tyres on the advice of the Consulting Engineer retained by him.
The information which the solicitor eventually got from the gardaí was simply to the effect that the tyres had been returned to the owner. It was then necessary to contact the latter and to establish what had happened to them.
The dilemma which this represented to the accused was an acute one. He was facing a charge carrying a maximum sentence of ten years imprisonment and would be well advised to omit no reasonable steps in the preparation of the defence. It was no doubt with this in mind that he instructed his solicitor to retain a consulting engineer. As the result of the non-availability of the tyres, it was not now possible to get the latter to review the garda evidence by examination of the tyres. This was a vital step in any prudent conduct of the defence.
The defendant could hope for legal redress against this disadvantage only by seeking judicial review. This is not a light step, involving as it does the initiation of High Court proceedings at considerable expense with the certainty that the prosecutor would seek costs against him if unsuccessful. Even if successful in the High Court, as he was, there was the risk of an appeal by the prosecutor, as has in fact occurred, and the risk of further considerable expense. One knows nothing, from the evidence before the Court, of the applicant’s financial standing save that he is a lorry driver by occupation but it must be clear that the initiation of High Court proceedings is a matter which would require grave consideration and, almost certainly, involve taking the opinion of counsel.
In this case, the first inquiry about inspection of the tyres was made in January 2004. The defendant was not told that the tyres had been returned to the owner until August 2004, after a number of reminders. He then required to follow up the position with the owner, consider his position in light of the engineer’s requirements and, probably, the advice of counsel. He did this and obtained leave to seek judicial review by order of Smyth J. dated the 10th December, 2004. Allowing for the time needed to establish what Mr. Snowden had done with the tyres, the applicant seems to me to have taken about three months to get to Court.
In my view the applicant has acted reasonably promptly in all the circumstances of the case. His promptitude contrasts favourably with that of the prosecutor, his servants or agents. I would consider it gravely unjust to deny him relief on this ground, especially in circumstances where no prejudice is alleged by the prosecution and the latter took upwards of a year expressly to rely on the deficiencies in the tyres which are now the whole thrust of the case, and some ten months to inform the defendant as to what had happened about the tyres.
I would dismiss the appeal and affirm the order of the learned trial judge.
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