Supreme Court dismisses appeal to preserve evidence, ruling worn tyres destroyed by owner prevent fair trial.

[2008] IESC 54

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

Respondent/Appellant

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.

The facts

2. 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 08/10/2002, 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 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.

The Law

22. 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 I.R. 127; Dunne v. Director of Public Prosecutions [2002] 2 I.R. 305;

Bowes v. Director of Public Prosecutions [2003] 2 I.R. 25; Scully v. Director of Public Prosecutions [2005] 1 I.R. 242; McFarlane v.

Director of Public Prosecutions [2008] IESC 7; Savage v. Director of Public Prosecutions [2008] 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.

Principles

23. 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."

Relevant factors and test

24. 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.

Best Practice

25. As I have indicated recently in my judgment in Savage v. Director of Public Prosecutions [2008] I.E.S.C. 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.

Applicant Not Owner

33. 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] I.R. 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

35. In the circumstances of the case, I would dismiss the appeal and affirm the judgment and order of the High Court.