Supreme Court allows appeal dismissing applicant's claim to prohibit trial due to missing exhibits and prejudicial delay.

[2006] IESC 11

THE SUPREME COURT

315/03 & 49/06

Murray C.J.

Hardiman J.

Geoghegan J.

Fennelly J.

Kearns J.

Between:

BRENDAN McFARLANE

Applicant/Respondent

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent/Appellant

and

THE MEMBERS OF THE SPECIAL CRIMINAL COURT

Respondent

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

1. Brendan McFarlane is charged with three offences: possession of a firearm with intent to endanger life between the 25th

November, 1983 and the 16th December, 1983, at the Derradda Wood, Drumcroman, Ballinamore, Co. Leitrim; possession of a firearm

at the same time and place in such circumstances as to give rise to a reasonable inference that he did not have it in his possession

for a lawful purpose and with falsely imprisoning Donald James Tidy by unlawfully detaining him against his will between the 24th

November, 1983, and the 16th December, 1983. The applicant/respondent (hereafter the applicant) has sought to prohibit his trial on

these charges on the basis of prejudicial delay and secondly on the basis that during the time which has elapsed certain exhibits have

gone missing. The significance of these exhibits is that it is alleged by the prosecution that they were found at the place where Mr.

Tidy was unlawfully held and that they bore the applicant’s fingerprints. Mr. Tidy was held outdoors in wooded countryside between

the 25th November, 1983, and the 16th December of the same year. When the security forces came upon the place there was a

gunfight between them and those holding Mr.Tidy. In the course of this two members of the security forces, recruit Garda Sheehan

and Private Kelly, died. Mr. Tidy was rescued and removed from the area by security forces. The area in question is that identified in

the charges, near Ballinamore, Co. Leitrim.

2. The items on which the applicant’s fingerprints were allegedly found were the following:

(a) A North Connaught Farmer’s one litre milk carton with a sell by date of the 16th December, 1983,

(b) A plastic container,

(c) A cooking pot.

3. In circumstances discussed below, the applicant was arrested on the 5th January, 1998, and subsequently charged with the above

offences. The applicant was unsuccessful in the High Court on the second of these points and the Director has appealed to this

Court.

The delay.

4. From the affidavit of Detective Superintendent John McElligott it appears that, in the aftermath of the rescue of Mr. Tidy the

applicant was suspected of involvement in his kidnapping and false imprisonment. Details of him were circulated through garda

channels and in particular through Fógra Tora in January, 1984. It appears that the applicant had been imprisoned in Northern Ireland

since 1975, serving a long sentence of imprisonment for his part in the IRA bombing of a bar on the Shankhill Road, Belfast, in which

five people were killed. However, on the 25th September, 1983, the applicant escaped from the Maze Prison together with other

prisoners. In January, 1986, the applicant was arrested in the Netherlands and was found to be in possession of a stolen or forged

Irish passport. On the 3rd December, 1986, he was extradited from the Netherlands back to Northern Ireland. From that time until

some time shortly prior to his arrest he was serving his sentence in Northern Ireland and this fact was known to the Gardaí.

5. Superintendent McElligott says that the Gardaí were very conscious of the fact that the applicant’s fingerprints had been found on

the three items described above, found at the scene of the camp or hide where Mr. Tidy had been held. They considered that the

applicant should be sought for interview in relation to the false imprisonment of Mr. Tidy and associated crimes, but that there was

then insufficient evidence to commence proceedings against him. They intended to question him if possible while detained under s.30

of the Offences against the State Act. For these reasons his extradition from Northern Ireland was not sought in connection with

these crimes, and nor was it sought to have him prosecuted under the Criminal Law (Jurisdiction) Act, 1976, while he was in prison in

Northern Ireland. Equally, he was not interviewed while serving the sentence in Northern Ireland because it was believed he would not

co-operate in any such venture and that he would be entitled to refuse to see any garda who sought to interview him while in prison

in Northern Ireland.

6. Subsequent to his arrest on the 5th January, 1998, the applicant was questioned by members of An Garda Síochána. According to

those members for the most part he declined to answer questions and simply stared at the wall. It is alleged, however, that he made

certain admissions while being questioned. Specifically, it is alleged that when asked about his involvement “in Dromcronan Wood” he

said:

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

7. The following conversation then took place:

Q. “What do you expect will happen to you?

A. I am prepared for the big one. I have already talked to her [his girlfriend who had been to see him] about our future

and house.

Q. Do you mean murder?

A. I am prepared for the worst.”

8. These alleged statements, together with the fingerprints, constitute the case against the applicant. In the course of these

proceedings the applicant did not affirm, comment upon, or deny any part of this evidence and of course he was not obliged to do so.

Effect of delay.

9. Insofar as the case is based on delay simplicitor, the applicant says that the State authorities could have invoked the procedures

under the Criminal Law (Jurisdiction) Act, 1976, providing for him to be tried in Northern Ireland for these offences. This, they say,

could have been done at any time since December, 1986, the date of his return to Northern Ireland having been extradited from the

Netherlands. Equally, the authorities could have taken steps to extradite him for the purpose of preferring the present charges against

him, at a much earlier date. He says that he had periods of parole from his sentence in Northern Ireland since 1993 and spent some of

these in this jurisdiction: he was actually on parole here at the time of his eventual arrest. He further says that it is unfair or

unreasonable to expect that the applicant “would be able to give specific instructions as to alibi or other matters of defence due to

effluxion of time”.

10. In reply to this, the Director of Public Prosecutions says that at all times after the identification of the applicant’s fingerprints on

the items found at the crime scene, the Gardaí wished to interview him. However, the matter went no further than that: the finding

of these fingerprints and movable items was not sufficient evidence to charge him and any charge based on that evidence alone

would have been dismissed. It was only upon interviewing him that the further evidence – his alleged admission of presence in the

area where Mr. Tidy was held – resulted in the Director’s decision to charge him with the present offences. The applicant’s

unavailability for interview was due to his having left Ireland, apparently in possession of a forged or stolen passport, and remaining in

the Netherlands until 1986. Thereafter, it was due to his detention in Northern Ireland where he was serving a sentence. The Director

says that it would have been pointless either to seek to arrange for his trial in Northern Ireland under the 1976 Act, or to seek his

extradition for trial in this jurisdiction at any time prior to 1998 since the authorities were not in possession of sufficient evidence to

do so.

Decision on delay issue.

11. The Director’s assertion that there was insufficient evidence to charge the applicant prior to his arrest in 1998 has not been

disputed and appears to be true. The delay of which the applicant complains is entirely pre-charge delay. Since the evidence on

which to bring a charge was not available until just before he was in fact charged there appears to be no basis for the applicant to

complain about that delay. This fact seems fatal, equally, to the contention that he might have been proceeded against pursuant to

the Act of 1976 or that his extradition might have been sought. On the evidence before the Court in this case there was simply no

sufficient case against him on the present charges at any time while he was in custody in Northern Ireland. Accordingly, to attempt

to proceed against him in either of the ways mentioned would not merely have been pointless, but would have been an abuse of the

respective procedures.

12. The applicant relies on the proposition that he could have been interviewed at a much earlier stage; that there was no need to

wait until his release on parole in 1998 before seeking to interview him. It is true that the Gardaí could have sought the permission of

the Northern Ireland Authorities, and of the applicant himself, to conduct an interview while he was in custody in Northern Ireland.

Superintendent McElligott’s affidavit describes this as “a theoretical possibility”. The Gardaí, he says, took the view that it was “quite

pointless” because “it was quite clear that Mr. McFarlane would not co-operate in such a venture and indeed was quite entitled to

refuse to see any member of the Gardaí who sought to interview him and in any event to terminate any inquiry as was being made at

the time”.

13. In my view, this was an entirely legitimate opinion for members of An Garda Síochána to entertain. It cannot, of course, be

positively demonstrated that this view was certainly correct but it appears to me that there were ample grounds for it. The applicant

was a hardened criminal, serving a sentence for a very serious offence and suspected with reasonable grounds of involvement in

another such offence. Nor could it be said that there was nothing to be lost by trying to interview him in respect of the present

offences: any such attempt would have put him on notice of the Garda interest in him in that connection and might thereby render

less effective any questioning of him when he eventually became available for arrest by the Gardaí. Moreover, it appears to me that

the Gardaí were entitled to prefer to conduct such questioning following the applicant’s arrest under s.30 of the Offences Against the

State Act when he would be obliged at any event to listen to the questions, if not to answer them, and when (subject to the

Regulations for the treatment of persons in custody) the structure and duration of the questioning would be in their control and not

that of other authorities, or of the applicant himself.

14. The position of a person who is suspected of a criminal offence, but not charged with it, has been considered by Gannon J. in

O’Flynn v. Clifford [1988] IR 740 at 744:

“There is I think an important distinction between the stage before charge, when a matter of a suspected crime is being

investigated, and the stage after an accused person has been charged and so is subject to the directions of a court.

Before any charge of a criminal offence is preferred against a person there is a presumption of innocence he is entitled as

a matter of fundamental right, antecedent to the Constitution, to the freedom of his person in relation to the stage

before charge the existence of a suspicion is not a sufficient basis for arresting a person. However genuine or cogent the

beliefs or suspicions held, a person may not be detained for the purpose of formulating a charge against him of a criminal

offence or for the convenience of assembling evidence to support a contemplated charge against him. But from the time a

criminal charge is made against a person resort to court procedure is obligatory and must be prompt. The presumption of

innocence is not simply a mere legal formality; it is a necessary corollary of the constitutional rights in Article 40 of the

Constitution and of those basic human rights which are anterior to the Constitution the supposed existence of

unexpressed suspicion of criminality in the mind of another in relation to a person cannot in law or in reason

confer any rights cognisable by the Courts upon the person to whom the suspicions relate. A person who is a mere

suspect (and therefore presumed innocent) has no legal right to have a charge made against him nor to have some legal

process diligently or expeditiously pursued, by arrest or summons, to bring him before a court”. (Emphasis added)

15. There are, of course, many authorities supportive of the proposition that, quite apart from any question of prejudice, there is an

obligation on the public authorities “to provide for and protect the right of an accused person to an expeditious trial as a positive

constitutional right”. This formulation of the right comes from the judgment of Finlay C.J. in Hogan v. The President of the Circuit

Court [1994] 2 IR 513 at 521.

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

“Obviously, in any case where the prosecuting authorities of the information available to them have not got proper

grounds for charging any person with an offence, their failure to do so and elapse of time before they are in a position to

do so cannot give an accused the right to prohibit a trial on the basis of the defeat of its constitutional right to an

expeditious trial.”

17. In view of the findings above as to when the authorities were in possession of material constituting a prima facie case against

the applicant, that passage seems determinative of the present application, insofar as it is grounded on delay simplicter.

Prejudice.

18. The applicant further contends that the delay, or events happening during the period of delay, have caused him irreparable

prejudice in his ability to defend himself, so that there is a real and serious risk of an unfair trial. In part this is put forward as a

general proposition and in part more specifically. Heavy reliance is placed on the fact that the three items on which fingerprints were

allegedly found are no longer in possession of the Gardaí.

19. Insofar as this ground is urged on the basis of general prejudice, I am unimpressed by it. The whole of the case in this regard is

based on a single sentence from the grounding affidavit of Mr. McGuill, solicitor for the applicant, which is quoted above. That is no

more than a general statement of the effect of a lapse of time. It makes no attempt whatever to engage with the actual

circumstances of the applicant himself at the relevant time. On the 25th September, 1983, he had undoubtedly escaped from lawful

custody in Northern Ireland. The next uncontroversial statement that can be made about his whereabouts is that he was in the

Netherlands in January of 1986 in possession of a stolen or forged Irish passport. The applicant has said nothing about his

whereabouts during any part of that time and, vitally, has not asserted, or caused his solicitor to assert, either how he spent the

time, or that he cannot recall where he was, during the period of Mr. Tidy’s captivity in late November and up to the 16th December,

1983. A remote, fanciful or purely theoretical form of prejudice is plainly not sufficient to entitle him to relief. An applicant in this

position must address if it is possible the actual specific facts of his case and this present applicant has singularly failed to do.

The items bearing fingerprints.

19. There is, however, a more specific form of prejudice alleged in the form of the loss of the items bearing the fingerprints. There is

no doubt but that this loss occurred: the affidavit of Mr. Boyle, formerly a Sergeant in the fingerprint branch of the Gardaí makes it

clear that these items were present in a specific room at the time of his retirement from the force in 1993. Five years later when he

was requested to come back to work for the purpose of dealing with them the room had been changed in its use from store room to

library and conference room and the items in question were nowhere to be found. It appears from the statements in the Book of

Evidence, un-contradicted for the purpose of these proceedings, that the fingerprints had been photographed in situ by Detective

Garda Maguire and these photographs of the impressions are still available.

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

“As a result the applicant is not in a position to comprehensively independently evaluate the alleged physical evidence in

this case and has been so advised as of October, 1999, by an independent expert retained on his behalf.”

21. There is no doubt, and the learned trial judge found, that the items on which the fingerprints were discovered have been lost due

to some want of care by someone in An Garda Síochána.

22. The Court wishes to emphasise that this want of care is a very grave matter and requires the urgent attention of the Garda

authorities. Most unfortunately this is by no means the first case to come before the Court in which items of real evidence transpire

to be missing when they are looked for trial purposes or in the course of judicial review proceedings such as these. Examples of such

cases are Murphy v. DPP [1989] ILRN 71 and Bowes v. DPP [2003] 2 IR 25. Moreover, the Court has previously drawn attention to the

need for great care in the matter of the storage of evidence. It appears that there is, amongst some members of An Garda Síochána

at any event, an unfortunate inability to keep track of items of real evidence, whether small domestic type items as in this case or an

item as large and one would have thought obvious as a motor car in Bowes. This Court has emphasised time and again that missing

evidence cases are not primarily a matter of fault finding or an additional disciplinary procedure in relation to members of An Garda

Síochána. I would repeat that observation here. Equally, one must make full allowance for the long period of time which elapsed in this

case, for the reasons discussed above.

23. Returning to the facts of the present case, it is true, as the learned trial judge pointed out, that there was in fact a forensic

examination of the missing items prior to their disappearance and that the results of the forensic analysis have been preserved. It

appears from the Book of Evidence, exhibited by the applicant, that there is a chain of evidence covering the identification of the

fingerprints on the items, the photographing of the fingerprints on the items and the preservation of the photographs. These

photographs are available for comparison purposes: they have in fact been compared with the applicant’s fingerprints and are

available, if desired, for further comparison on behalf of the applicant. A significantly different situation would arise if this independent

comparison were not possible. No attempt has been made in the present case to suggest that meaningful comparison is not possible,

using the photographs, or that any additional advantage might have accrued to the defendant on the basis of a comparison with the

actual marks made on the items as opposed to photographs of them. The case is thus significantly different from McGrath v. DPP

[2003] 2 IR 25, where an expert engineer on behalf of the applicant stated that due to the non-availability of an item of real evidence

he was unable to carry out specific tests the result of which might have had an obvious benefit to the defence. There is no basis on

the evidence in this case for an agreement that “the applicant has been deprived of the reasonable possibility of rebutting the

evidence proffered against him”, to use the language of Lynch J. in Murphy v. DPP, cited above. It is relevant to recall what was said

in Z v. DPP [1994] 2 IR 476 at 506:

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

circumstances have occurred which would render it unfair is that he should establish that there is a real risk that by

reason of those circumstances he could not obtain a fair trial”.

24. In order to demonstrate that risk there is obviously a need for an applicant to engage in a specific way with the evidence actually

available so as to make the risk apparent. A failure to do this was the basis of the failure of the applicant in Scully [2005] I IR 242.

This is not a burdensome onus of proof: what is in question, after all, is the demonstration of a real risk, as opposed to an established

certainty, or even probability of an unfair trial. The applicant has not so much failed to meet the requisite standard of proof as failed

to address the issue in any meaningful way. To say this is not to criticise the applicant’s advisers: it may be that the point has been

put as far as it can be.

25. On the above evidence, the learned trial judge granted the applicant relief on the second ground, that relating to the loss of the

items on which the fingerprints were found. The learned trial judge felt himself bound to do so by the decisions of this Court in

Braddish v. The Director of Public Prosecutions [2001] 3 IR 127 and Dunne v. The Director of Public Prosecutions [2002] 2 IR 305.

Both of these were video tape cases. In the first, the gardaí viewed a video tape and identified a suspect from it. They interviewed

the suspect and claimed to have got an admission from him: they then disposed of the video tape. In Dunne the premises robbed

were a filling station which was equipped with video surveillance focussed on the area where the robbery took place. But the gardaí

appear to have paid no attention at all to this aspect of the case and never to have taken the tape into their possession.

26. The facts of these cases do not appear to me to be analogous to those of the present case. The video tapes were simply

unavailable, either because they had been disposed of by the guards or because the guards had paid no attention to the video tape.

A closer analogy to the facts of the present case would be if the contents of the video tapes had been recorded on to another tape

and the originals then lost or disposed of. But nothing like that happened in either of the cases referred to.

27. There is, so far as I am aware, no direct precedent in the missing evidence cases that have become before this Court or the High

Court for a situation like the present where items bearing fingerprints have been lost, but only after forensic examination has taken

place, the fingerprints identified, photographed, and compared with the applicant’s and the photographs preserved.

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

“Now in the instant case, while it is clear that the items have not been retained there was, nevertheless, a forensic

examination of them and the issue arises whether by reason of this forensic examination, it can be said that the applicant

can now obtain a fair trial or whether for the reason of the loss of the items in question this Court should follow the

decision in the case of Braddish v. The Director of Public Prosecutions.

I have come to the conclusion that I am bound by the decision of Braddish v. The Director of Public Prosecutions by

reason of the failure on the part of the Garda authorities to retain the items in question. I believe it has clearly resulted in

a situation of the loss of vital evidence and it is in these circumstances that I believe that the applicant is entitled to the

relief which he seeks”.

29. In my view, this approach interprets the decision in Braddish over-rigidly, and ignores the essential factual distinction between

that case and this one, which is the availability here of the photographs of the fingerprints found on the missing items. These

photographs are capable of proof as secondary evidence. In Cross on Evidence, 5th Edition at page 15 the elementary point is made

that:

“‘Primary evidence’ is that which does not, by its very nature, suggest that better evidence may be available; ‘secondary

evidence’ is that which, by its very nature does suggest that better evidence may be available. The original of a

document is primary evidence, a copy secondary evidence, of its contents”.

30. It is part of ordinary human experience that documents and items, even those of great significance or intrinsic value, are not

infrequently lost. The law has taken note of this over many centuries and is not so unrealistic as to consider that the loss of an

original document or item of real evidence is fatal to any litigation based on it. Copies of documents are freely admissible in criminal

proceedings, now by virtue of s.30 of the Criminal Evidence Act, 1992, which provides at s.30:

“(1) Where evidence contained in a document is admissible in evidence in criminal proceedings, the information may be

given in evidence, whether or not the document was still in existence, by producing a copy of the document, or of the

material part of it, authenticated in such manner as the Court may approve.

(2) It is immaterial for the purposes of subsection (1) how many removes there are between the copy and the original, or

by what means (which may include facsimile transmission) the copy produced or any intermediate copy was made.

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

“A material object is any object, the existence, appearance or condition of which is relevant to the issues in a case.

Common examples would include the alleged murder weapon in a murder case, stolen goods in a prosecution for receiving

stolen goods and the product in a products liability case. In general such objects are produced in court for inspection and

examination by the Tribunal of Fact. However, where it is not possible or practical to produce the actual object,

secondary evidence of it may be adduced. This may take the form of photographs or films of the object or the oral

evidence of someone who has seen it.”

32. It therefore appears that, whether the fingerprint on the missing items be regarded as a document, or as an independent item of

real evidence, there is ample provision in law for its proof by way of a duly authenticated photograph.

33. Viewed in this light, the distinction between the present case and those cited is clear. Quite obviously the gardaí have been in

breach of their duty to preserve the evidence, but in this case, unlike the others, this breach has not resulted in the loss of that

evidence in an independently verifiable form. That statement must of course be read subject to what is said below about the powers

and functions of the trial court.

34. I would therefore decline to grant relief sought. The reasoning leading to this decision in part depends of an assessment of the

case against the applicant as it appears from the Book of Evidence which the applicant exhibited in these proceedings. Since no part

of its contents was contradicted it seems appropriate to have regard to it for the purpose of this judicial review application.

35. When the case proceeds in the Court of Trial, however, different considerations may arise. The evidence adduced may or may not

extend to the whole of what is in the Book of Evidence, which after all consists of statements of intended evidence. The exhibits

mentioned there may or may not be to hand. Other evidence or cross-examination of existing witnesses, may put the photographic

fingerprint or forensic evidence into an entirely different context. The fact that the applicant has been unsuccessful in these judicial

review proceedings in no way detracts from the power and duty of the Court of Trial to assess the case as it develops at the trial. It

will be able to assess whether there is indeed a prima facie case at the appropriate stage. More than that it will be able to assess, on

the evidence as it actually develops, whether there is any unfairness to the applicant, incapable of remedy by the trial court, for

which the prosecution is responsible. Its powers in this regard are wholly unaffected by the result of the present application.

Conclusion.

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