Supreme Court allows appeal on criminal damage charge due to risk of unfair trial from lost vehicle evidence.

THE SUPREME COURT

282/2006

Kearns, J.

Macken, J.

Finnegan, J.

Between/

JASON O’DRISCOLL

Applicant/Appellant

-and-

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent/Respondent

Judgment delivered the 24th day of March, 2009 by Macken, J.

By order of the High Court (McKechnie, J.) made on the 5th day of July 2004 the applicant was granted leave to apply by

way of judicial review for, inter alia, an order in the nature of an injunction restraining the respondent from taking any

further steps in a criminal prosecution entitled Circuit Criminal Court County of the City of Dublin Bill No. 192/01; a

declaration that a failure on the part of the respondent to obtain and/or preserve relevant evidence in particular the motor

vehicle allegedly used in the offences alleged is a breach of the applicant’s right to a fair trial; a declaration that the applicant

was entitled to be informed of the respondent’s decision and/or intention not to preserve the motor vehicle before it was

returned; a declaration that the failure on the part of the respondent to subject the motor vehicle to forensic testing or any

other proper examination is a breach of the applicant’s right to a fair trial; and an order staying the further prosecution of the

applicant pending the determination of the proceedings.

The application was heard on the 4th November 2005 pursuant to a Notice of Motion dated 8th July, 2004. By an Order

made on the 9th February 2006, the High Court (Dunne, J.), refused the application for judicial review. The basis for the

refusal is set out in the reserved judgment of the learned High Court judge delivered on the 25th January 2006. The

application was refused on the basis that, whereas the vehicle in the case - already forensically tested by the gardaí and

returned to its owner within two days of the events giving rise to the charges - should not have been returned without notice

to the applicant, nevertheless the applicant had failed to establish that the absence of the vehicle or of an opportunity to

examine it would or might lead to a real or serious risk of an unfair trial.

From that judgment and order the applicant has appealed. As matters have transpired, not all nine grounds of appeal are

now relevant. Insofar as the relevant extant ground of appeal is concerned, it is contended that the learned High Court judge

erred in law, inter alia, by failing to address adequately the appellant’s claim for an injunction in respect of the charge of

criminal damage contrary to s.2 of the Criminal Damage Act 1991, and by failing significantly to distinguish this charge from

the burglary charge on the same Bill or to apply the law separately to the criminal damage charge.

Background:

According to the Book of Evidence and/or the judgment, a raid took place at premises known as XtraVision on Greenhills

Road at Tallaght on 16th March 2003. It is alleged that a dark green Opel Vectra registration number 99 D 54057 belonging

to a Mr Lawlor was used in the course of the raid for the purposes of reversing it into the shutters of the premises in order

to gain access to them. The applicant was charged in relation to the raid with two counts as follows:

(1) Burglary contrary to s.12(1)(b) and (3) of the Criminal Justice (Theft and Fraud Offences) Act 2001, and

(2) Criminal damage contrary to s.2 of the Criminal Damage Act 1991.

The first of these charges has a maximum penalty of 14 years and the second one a maximum penalty of 10 years. The

criminal damage charge is in respect of the Opel Vectra car. No criminal damage charge was laid in respect of damage to the

premises, there being no dispute but that the premises, including the shutters and a plate glass window, were in fact

damaged.

Gardaí went to the premises almost immediately and found one person sitting in the back of the car, a Jason Murtagh who

has since pleaded guilty, and it is alleged he made certain admissions, including that two other persons had entered the shop

premises.

According to the affidavit of the appellant’s solicitor, Ms Bambury, sworn in support of the judicial review application in

respect of both charges, the evidence against the appellant is primarily identification evidence, based on the evidence to be

given, inter alia, by Garda Vivienne Saunders, who said that she had entered the premises and noticed two male youths

behind the counter, whom she described. She indicated that they fled through a hatch in a connecting door behind the

counter of the shop but that she was unable to gain access to that part of the shop to search for them. She found two youths

hiding under some bushes, at an adjoining site on the same industrial estate, and according to her statement in the Book of

Evidence, she recognised them as being the same two men she had seen moments earlier behind the counter of the

XtraVision store. She described them as being red-faced, sweating and breathing heavily. The appellant, she said, was

arrested by her colleague Garda Woulfe, and when the garda asked him if he knew why, the appellant replied “I know I

know”. During interview while in custody the appellant made no admissions.

A forensic examination was carried out of the vehicle. This however was only disclosed during the High Court proceedings.

It seems clear from the High Court judgment that the prosecution confirmed that it would be relying on forensic evidence to

link the appellant to the driver’s seat of the Opel Vectra used in the raid. The vehicle, having been examined, was returned

to its owner about two days later, on the 18th March 2003. It was accepted on behalf of the respondent in the course of the

High Court proceedings that the appellant should have been notified of the intention of the gardaí to return the vehicle.

The Argument:

Before proceeding further it is appropriate to note that senior counsel Mr Collins on behalf of the appellant acknowledged in

the course of the oral hearing on this appeal, that the grounds of appeal relating to the burglary charge were not readily

capable of being seriously sustained in light of the learned trial judge’s judgment and he correctly and fairly did not press the

court on that element of the appeal. That left, in effect, only the criminal damage charge as the subject of an extant appeal,

and the refusal of the learned High Court judge to prohibit the appellant’s trial on this charge. The respondent in the High

Court alleged delay by the appellant in commencing the High Court proceedings, and a considerable part of the judgment

under appeal concerns the issue of delay, which has been maintained by the respondent in this appeal. It will be dealt with,

where necessary, in the particular context set out below.

Concerning the criminal damage charge, counsel for the appellant submits that he is entitled to succeed in the appeal by

reason of the following: (a) the learned High Court judge gave no, or no proper, consideration to the application for an order

of prohibition so far as concerns the count of criminal damage; (b) she gave no reasons or no sufficient reasons for rejecting

the application; (c) the gardaí had failed to retain and preserve the motor vehicle so as to enable the appellant carry out

appropriate tests for the purposes of defending the criminal damage charge, thereby depriving him of critical and material

evidence from which it might be possible to establish his innocence; and (d) the only way in which the existence of any

damage to the motor car could be established at trial, was by prior inspection on behalf of the appellant before it was

returned to its owner.

Counsel for the appellant also points to the total absence, in the Book of Evidence, or on affidavit, of any reference at all to

damage to the car but only of damage to the premises, and suggests that the charge based on criminal damage to the car

may well have been laid in error.

According to the respondent’s written submissions, insofar as the criminal damage charge is concerned, apart from the

forensic evidence (taken from the car) there is no direct evidence linking the applicant with the car. The eye witness

evidence of the gardaí, if accepted by the jury, it is said, puts the applicant in the XtraVision store, but it is not part of the

prosecution case that the gardaí observed the applicant in the car at any time. In the written submissions, it is also stated that

“contrary to the applicant’s assertion (in both his judicial review papers and his written submissions) there is evidence that

the Opel Vectra used in the raid was damaged. The rear driver’s side light cluster came away from the vehicle. That is

consistent with the car having been reversed into the shutters of the XtraVision (shop), causing extensive damage to the

shop”.

In oral argument the respondent meets this case on the following basis: (a) there is evidence, as is clear from the affidavit of

Sergeant Woulfe, that part of a lens and the cluster light came from the Opel Vectra; (b) this damage is also clearly implied

on a proper reading of the statement of evidence of its owner, Mr Fintan Lawlor; and (c) there will be further evidence in

relation to the criminal damage charge, having regard to the affidavit of Garda Sergeant Woulfe, at paragraph 10 of whose

affidavit sworn on the 2nd December 2004 he avers:

“I beg to refer to the affidavit of Yvonne Bambury, the applicant’s solicitor sworn herein on the 5th July 2004.

At paragraph 6 thereof it is suggested that there does not appear to be anything in the book of evidence

suggesting that the Opel Vectra used in this burglary was damaged in any way. That contention is apt to

mislead. The car in question was damaged as it was reversed into the shutters of XtraVision, thereby allowing

the offenders to gain entry. The injured party, Mr Fintan Lawlor, makes an implied mention of the damage in

his statement, where he says at page 6 of the book of evidence that “there was no damage to the car up to

when it was stolen on me”. Evidence as to damage caused will be tendered as part of the prosecution case,

including the photographs of which mention has already been made.” (emphasis added)

The photograph is referred to in paragraph 4 of Garda Woulfe’s affidavit which is in the following terms:

“I say that the stolen car used in the incident motor car registration number 99 D 54057, was returned to its

rightful owner on the 18th March 2003. A photograph was taken of the car with the owner as well as of the

owner with the car keys. I say that procedure is in line with standard Garda procedures as outlined in the

Garda Code.”

Before expressing my conclusions on the above, according to the affidavits exchanged, a photograph was furnished to Ms

Bambury which she averred was “black”, by which I assume it does not show anything. That averment has not been

denied.

The State of the Evidence:

As matters stand at present, from the Book of Evidence and the affidavits filed, it is difficult to see any real basis for the

criminal damage charge against the applicant. There is little if anything, to support the case that the car was damaged. The

appellant cannot know at this time the case to be made against him and the evidence which will be adduced, in the absence

of anything being described by or produced to the court by Garda Woulfe, who swears to its existence and/or intended use..

Indeed what can be said about the evidence is the following:

There is no direct evidence that the car was damaged. According to the Book of Evidence, the owner of the car has made

no statement that it was damaged when he received it back from the Gardaí. The most he says is that it was not damaged

up to the time it was stolen. Significantly he refers in his statement of evidence to several items as missing from the car but

makes no reference whatsoever of any specific damage to the car itself, whether lens damage or light cluster damage or

otherwise.

Garda Burke, who does not aver to witnessing the actual raid, according to the Book of Evidence, states “this vehicle had

reversed into the shutters of XtraVision, causing extensive damage to the security shutters, frame and windows of this

premises”. Nothing is said about damage to the car, however.

Garda Meagher according to the Book of Evidence states “there was broken glass around the car”, but without specifying

whether this was from the XtraVision plate glass window which, on other evidence, was broken, or from the car, or from

some other source.

Again, according to the Book of Evidence, Garda Woulfe refers to seeing “damage to shutters and the glass of the

XtraVision”. Garda Woulfe also said that a photograph was taken of the car. He does not exhibit this and Ms. Bambury has

been furnished with a “black” photograph. He says nothing about damage to the car.

According to the Book of Evidence, Garda Saunders states that “I received the following exhibits from Detective Garda

Damien Scanlon, the rear driver’s side light cluster from 99 D 54047 in a garda evidence bag, I labelled it VS14. A sample

of lens from 99 D 54057 in a garda evidence bag, I labelled it VS15”. No statement of Garda Scanlon is included in the

Book of Evidence.

There is no evidence at present connecting the lens referred to as exhibit VS15 or the rear light cluster referred to as exhibit

VS14, to the car itself. There is no evidence as to where the lens or the cluster light or either of them was found, or the

circumstances in which they were found, or anything otherwise to connect them to the car, other than the assertion by

Garda Woulfe, in his affidavit, to that effect. While the above exhibit numbers were given by Garda Saunders to the items in

question, Ms. Bambury avers that neither above exhibit appears on the Exhibit Sheet in the Book of Evidence.

In the course of the garda interview with the appellant no question was put to him concerning damage to the car but only

concerning possible damage to the shutters and the glass of the of XtraVision shop. Counsel drew attention to a question put

to the appellant in the following terms: “you rammed the shutters causing damage to the premises so you could enter and

steal from it isn’t that correct”.

From the foregoing it is clear that, even taken at its highest, there is no evidence that the car in question was damaged, nor

any evidence that if it was damaged, the damage was caused while the car was at the XtraVision shop, or damaged in the

manner suggested.

However, it is said by Detective Sergeant Woulfe on affidavit that, although the raid took place on the 16th March 2003 and

the applicant was charged (or more correctly recharged) in December 2004 that “further evidence” will be added to the case

against the applicant. That further evidence is not identified, described or produced, and the only further evidence which is

mentioned specifically is the photograph. The court is left therefore with no idea of the nature or likely value of any such

further evidence.

Conclusion:

In light of the foregoing, it is scarcely necessary to consider in any great detail the ample case law which has been referred to

both by the applicant and by the respondent, much of which is no longer relevant given the concession made by the

appellant on the more serious charge of burglary. That case law makes it clear that where forensic inspection takes place at a

time when no one is suspected it would be unreasonable to hold onto a vehicle indefinitely (see Scully v DPP, unreported,

the Supreme Court, 16 March 2005). That is not the position here, because the applicant was charged immediately and

recharged later. However the very short period of time which elapsed between the events in question on the 16th March and

the return of the vehicle on the 18th March 2003 indicates clearly that the appellant was neither notified, as is conceded, of

the intention to return the vehicle, nor did he have an opportunity of examining the vehicle.

A further factor of relevance in the present appeal is that it was only in the course of the exchange of pleadings in this

judicial review application that the respondent revealed that any forensic testing had been undertaken, not in relation to

damage to the car itself, but in relation to placing the applicant both at the premises and in the motor car itself. In these

circumstances, it seems to me that the alleged delay on the part of the appellant in commencing judicial review proceedings

cannot prevail over the absence of any evidence and the return of the car without notice to him. The above forensic

evidence, even if now known to exist, does not appear in any event to advance the prosecution case in any material respect

insofar as the criminal damage charge is concerned. Nor is it of assistance to the appellant in the defence of that charge.

The applicant relies, in particular having regard to its somewhat similar circumstances, on the case of Murphy v DPP (1989)

ILRM 79. That was a case where the applicant had been charged with stealing a car and with certain driving offences. The

car was in the possession of the gardaí and the applicant’s solicitor had indicated a wish to have the car examined and tested

specifically for finger print evidence, but the gardaí parted with the car without either examining it forensically themselves or

notifying the applicant’s solicitor that they intended to part with it. In the High Court (Lynch, J.) it was stated:

“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 preferred 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 a further inspection of the car.”

Clearly that case dealt with slightly different circumstances in that there had been no forensic examination of the car at all,

whereas in the present case there has been forensic examination of the car, but according to the Book of Evidence, no

technical examination of the car linking any physical evidence, such as the cluster light, to the car, still less to the criminal

damage alleged.

While it was accepted by the respondent in the High Court that the applicant’s solicitor ought to have been notified of the

intention to return the car to its owner, the principles setting out the parameters surrounding the return of a physical piece of

evidence, such as a car, are very well exposed in the judgment of McCracken, J., in McKeown v Judges of Circuit Court

(unreported Supreme Court, 9 April, 2003), in which he stated:

“If a person is accused of driving a stolen motor car, quite clearly that car is often a vital piece of evidence. If

the car could provide potential evidence favourable to the defence it should certainly be made available to the

accused person or his advisors where reasonably practicable before being returned to the owner. Regard must

be had to the practicalities, and in particular to the rights of the unfortunate owner of a stolen car who

obviously is entitled to have it returned to him as quickly as possible. These practicalities must be judged on

the facts of each case. Having regard to the authorities cited the proper procedure would seem to be that if

evidence of this nature is to be returned to its true owner, where practicable that should only be done after

notice has been given to the accused of the intention to return the evidence and a reasonable time given for the

accused or his advisors either to examine the evidence or to dispense with the examination.” (emphasis added)

Obviously, a car which has been stolen must be returned to its owner as soon as this may reasonably be done after

examination. From the Book of Evidence, it is clear that the name of the appellant’s legal representative, to whom he spoke,

was mentioned in the course of the interviews with the appellant. The gardaí were, therefore, well aware that the appellant’s

solicitors could be readily contacted, and it would, prima facie, have been practicable both to notify the solicitor and to offer

a reasonable period of time within which to permit examination or allow the appellant forego that right of examination.

Neither occurred in the present case.

Without prejudging any possible outcome of the prosecution on the burglary charge, the only evidence which might have

been available to support the criminal damage charge is the car itself, given the absence of any evidence connecting the lens

or the cluster light to the car or to any damage to it. Here the appellant’s case is based on the difference between the

evidence, such as it is, but even taken at its highest according to the Book of Evidence, and the evidence which would or

might have been available to him had the car been retained for a reasonable period of time so as to facilitate inspection.

I am satisfied that the appellant was entitled in law to have access to the car for inspection in support of his defence, and

that in its absence, the trial on that count could not be held, at this remove, without there being a real and serious risk of an

unfair trial. The applicant has not had an opportunity of examining the vehicle and the only manner in which a defence to

the criminal damage charge could be advanced is if the car had been retained, or at least examined vis a vis the alleged

criminal damage charge, and evidence of this was available. At present there is no such evidence and no method by which

the applicant could engage with the prosecution case on the criminal damage charge.

I am also satisfied that the prosecution evidence as it stands at present, taken at its highest is such that a jury properly

directed could not, in any event, properly convict the appellant on the criminal damage charge.

Having regard to the foregoing, the learned trial judge erred in law in not considering to a sufficient extent this aspect of the

appellant’s application, undoubtedly because even on appeal, until the concession was made by counsel on behalf of the

appellant, the vast bulk of written submissions in this court, not surprisingly, concentrated on the more serious burglary

charge, the forensic examination of the car and the evidential nature of materials supporting that charge as well as the

presence of the applicant and others at the actual premises which had been raided, rather than on the criminal damage

charge to the motor car.

The appellant is entitled to succeed on his appeal insofar as the criminal damage charge is concerned. In the circumstances I

would allow the appeal but limited to that charge only. I will therefore set aside the order of the High Court so far as

concerns the criminal damage charge, and make an order prohibiting the respondent from taking any further steps on Count

2 in the criminal prosecution entitled Circuit Criminal Court County of the City of Dublin, Bill No. 192/01.