Supreme Court dismisses appeal where destroyed vehicle evidence does not create real risk of unfair trial.

THE SUPREME COURT

[Appeal No. 120 of 2005]

Denham J.

Hardiman J.

Fennelly J.

Between/

Ciaran Savage

Applicant/Appellant

and

The Director of Public Prosecutions

Respondent

Judgment delivered the 3rd day of July, 2008 by Denham J.

1. Ciaran Savage is charged with the offences of using a vehicle without the consent of the owner and dangerous driving

causing serious injury. In the High Court he sought an order prohibiting further criminal prosecution against him, on the

basis that the Director of Public Prosecutions has failed to preserve material evidence as the vehicle has been destroyed.

The issue for determination is whether by reason of the absence of the vehicle (evidence), there is a real or serious risk that

he could not obtain a fair trial. The High Court held that he had failed to discharge the required onus of proof. He has

appealed to this Court on numerous grounds submitting that the learned trial judge erred in fact and law. I would dismiss the

appeal for the reasons set out in this judgment.

2. Ciaran Savage, the applicant/appellant, "the applicant", has brought this appeal from the refusal by the High Court of his

application to prohibit his trial in the Circuit Criminal Court on two charges; (i) of using a vehicle without the consent of the

owner, contrary to s.112 of the Road Traffic Act, 1961, as amended, and (ii) dangerous driving causing serious injury (to

his passenger), contrary to s.53(1) of the Road Traffic Act, 1961, as amended.

3. The chronology of relevant events is as follows:-

(i) 3rd June, 2001: the accident.

(ii) 13th June, 2001: examination of the vehicle by Public Service Vehicle Inspector.

(iii) 28th June, 2001: service of Notice of Intention to Prosecute in respect of dangerous driving, having regard to the alleged

speed and defects of the vehicle.

(iv) 10th July, 2001: the applicant was discharged from hospital, and continued on medication and treatment.

(v) 25th July, 2001: destruction of the vehicle by An Garda Síochána.

(vi) 22nd November, 2001: the victim died.

(vii) 22nd November, 2001: application for issuance of the summonses grounding the prosecution, excluding dangerous

driving causing death. It appears that the applicant was summonsed in respect of dangerous driving for summary disposal.

(viii) 12th February, 2002: application for issuance of the summonses grounding the prosecution for dangerous driving

causing serious harm.

(ix) 27th February, 2002: return date for the summonses.

(x) 15th May, 2002: order sending the applicant forward for trial in the Circuit Criminal Court.

(xi) 2nd July, 2002: first appearance in the Circuit Criminal Court. As the applicant had not been cautioned the matter was

adjourned to 16th July, 2002.

(xii) 16th July, 2002: the defence enquired as to whether the vehicle was available for inspection; the matter was adjourned

to 30th July, 2002.

(xiii) 30th July, 2002: the Director of Public Prosecutions informed the applicant that the vehicle had been destroyed.

(xiv) 2nd October, 2002: leave given by the High Court to apply for judicial review.

(xv) 16th January, 2003: letter from the Director of Public Prosecutions stating that the prosecution evidence as to the

examination of the vehicle will not be tendered and that the condition of the vehicle would not be an issue in the trial.

(xvi) 4th March, 2005: application for judicial review heard by the High Court.

(xvii) 8th March, 2005: High Court orders that the application be refused.

(xviii) 8th March, 2005: ex tempore judgment given by the High Court (Quirke J.), which concluded that the court was not

satisfied that the applicant had discharged the onus of proving on the balance of probability that the failure to preserve the

vehicle has given rise to a real or serious risk that he would receive an unfair trial and that the relief should be refused.

(xix) 22nd March, 2005: the applicant filed a Notice of Appeal to this Court.

(xx) 22nd April, 2008: the appeal came on for hearing in this Court, and judgment was reserved.

4. Relief Sought

The High Court (Murphy J.) on 2nd October, 2002, granted the applicant leave to apply for judicial review for an order

prohibiting the Director of Public Prosecutions from taking any further steps in the criminal proceedings the subject matter

of this application.

5. Grounds for application for judicial review

The grounds upon which the application was granted were:-

(i) Prohibition by way of Judicial Review.

The applicant herein has been returned for trial to the Circuit Court in respect of two counts set out in

the statement of charges. They are:-

(a) For that you the said accused on the 3rd June 2001 at Old Kilmainham, Dublin 8 in the Dublin Metropolitan District did

unlawfully use a mechanically propelled vehicle, registration number 87 LH 3345 without the consent of the owner thereof,

namely, Fabien Boucher, or without other lawful authority. Contrary to Section 112 of the Road Traffic Act 1961 (as

amended by Section 65 of the Road Traffic Act 1968 and by Section 3(7) of the Road Traffic (Amendment) Act 1984).

(b) For that you the said accused on the 3rd June 2001 at Old Kilmainham Road, Dublin 8, a public place in the Dublin

Metropolitan District did drive a vehicle, registration number 87 LH 3345 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, whereby it caused serious bodily harm to another person, Debbie Mulhall.

Contrary to 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 to 1995.

(ii) The applicant was served with a Book of Evidence in respect of the said counts.

(iii) At all material times the Director of Public Prosecutions had within its possession and/or power, the said motor vehicle

named in the two counts, namely, mechanically propelled vehicle registration number 87 LH 3345.

(iv) The Book of Evidence discloses that the Director of Public Prosecutions will be relying on the condition of the motor

vehicle as being "dangerously defective" as a significant part of the evidence in attempting to establish in particular Count

number 2 herein.

(v) In addition, the evidence on its face raises questions having a bearing on the cause of the crash.

(vi) After this case had been returned for trial, but before the arraignment date the Director of Public Prosecutions informed

the applicant herein that there might be a difficulty in respect of certain exhibits or retention of same.

(vii) The Director of Public Prosecutions has put the applicant on notice that they no longer have possession or custody of

the motor vehicle which was retained by them after the 3rd June, 2001 and same is not now available for inspection.

(viii) The Director of Public Prosecutions has failed to comply with the principles of natural and constitutional justice and

basic fairness of procedures in failing to preserve all material evidence which would be necessary for the applicant to

examine in order to properly present his defence and assess the case against him.

(ix) The Director of Public Prosecutions intends, unless prohibited by this Honourable Court, to have this matter so to

continue to trial notwithstanding the failure of the Director of Public Prosecutions to comply with the principles of natural

constitutional justice and basic fairness and procedures in the manner in which the case is to be presented to the court and

the manner in which the applicant is given an opportunity to meet the said case.

(x) In the event that the matter proceeds to trial the applicant will have been denied access to material which could have

assisted the defence case or alternatively damaged the prosecution case.

(xi) In the premise the applicant has been denied a right to a fair trial, his position is prejudiced and a trial would not be in

due course of law.

5. High Court judgment

The High Court was satisfied on the evidence that the applicant was seriously injured in the accident and was receiving

treatment from the date of the road accident until the date when the vehicle was destroyed. For that reason he had not

sought or obtained legal advice which would have enabled him to discharge the duty identified in McKeown v. Judges of

the Dublin Metropolitan District Court [2003] I.E.S.C. 26.

The High Court identified the issues to be determined as:-

(1) Whether or not the vehicle itself, in its physical form, comprised evidence which was relevant evidence to the offences

with which the applicant has been charged, and if so

(2) whether or not an explanation has been provided by the Director of Public Prosecutions for the absence of the evidence,

and if so

(3) does the explanation establish that the evidence has no real bearing on the guilt or innocence of the applicant, and

(4) in particular and as an overriding consideration, whether or not the applicant has discharged the onus of proving on the

balance of probabilities that by reason of the absence of the evidence he will be subjected to a real and serious risk of an

unfair trial.

The learned High Court judge dismissed the application. He held that the vehicle was retained for some time after the event

before being destroyed in accordance with normal garda procedures. He stated:-

"It cannot reasonably be suggested that the prosecuting authorities have a duty to preserve all vehicles which are the subject

of summary offences under Road Traffic Act. At the time of its destruction this vehicle came within that category. It was

only upon the unfortunate death of Ms. Mulhall that the gravity of the offence became apparent."

The learned trial judge held that the applicant had failed to discharge the onus of proving that the failure on the part of the

State to preserve the vehicle has exposed him to the risk of an unfair trial. He pointed out that the applicant relied on the

evidence of Dr Jordan, forensic engineer, in support of his contention that the preservation of the vehicle has compromised

his capacity to receive a fair trial. He noted that Dr Jordan indicated that the garda examination supported his contention

that:-

"… The vehicle was defective in ways which might reasonably not have been noticed by the driver and which might

reasonably have caused or contributed significantly to the causation of the impact."

The learned High Court judge held:-

"I am at a loss to discover therefore how the applicant is disadvantaged in making that case by the absence of the

opportunity to examine the vehicle."

He held that the applicant may call Dr Jordan and garda expert witnesses on this matter, and concluded that the applicant

had failed to discharge the onus of proof.

7. Notice of Appeal

The applicant has appealed to this Court, submitting that the learned High Court judge erred in fact and in law in failing to

grant the relief sought. Specifically it was pleaded that:-

"…

2. The Learned Trial Judge erred in fact and in law in failing to hold:

a) that the [applicant's] right to a fair trial had been breached; and

b) that the [applicant] had been prejudiced in the conduct of his defence by the failure to preserve the

vehicle the subject of the proceedings herein or to carry out an appropriate examination thereof.

3. The Learned Trial Judge erred in fact and in law in failing to take into account adequately or at all:

a) the specific assertions of such prejudice as set out in the affidavit of an appropriately qualified

expert on behalf of the [applicant]; and

b) the failure by the [Director of Public Prosecutions] to adduce any evidence to contradict or cast

doubt upon the said assertions.

4. The Learned Trial Judge erred in fact and in law in failing to take into account at all the

uncontroverted evidence of the said expert.

a) that the calculations and observations in respect of the Garda estimate of the speed of the said

vehicle prior to impact were thoroughly unreliable and incomplete; and

b) that proper observations, measurements and calculations could have resulted in a reliable estimate

of speed of the vehicle prior to impact which could have been of assistance to the defence.

5. The Learned Trial Judge erred in fact and in law:

a) in failing to hold that the said expert had given sufficient evidence to establish as a matter of high

degree of probability that a proper examination of the said vehicle could have yielded evidence helpful

to the defence in a trial;

b) in holding that the evidence of the said expert did not disclose how a physical examination of the

said vehicle could have improved the evidence of the said expert in particular having regard to the

uncontroverted evidence of the said expert inter alia in respect of:

i) the defective suspension;

ii) defective brakes;

iii) rust and corrosion;

iv) tyre inflation levels and tyre blow-out;

v) possible damage from previous collision;

vi) estimate of speed prior to impact.

6. The Learned Trial Judge erred in fact and in law in holding that the [Director of Public

Prosecutions] was not under an obligation to preserve the said vehicle or notify the [applicant] of an

intention to abandon the said vehicle notwithstanding the [Director of Public Prosecution's] original

intention to charge the [applicant] with a summary offence having regard to:

a) the seriousness of the injuries sustained in the accident the subject of the said proceedings;

b) the defects in the said vehicle which were apparent on inspection by Gardaí;

c) the defects and deficiencies in the manner in which the said inspection was carried out;

d) the allegations as to the manner in which the said vehicle had been driven; and

e) all the circumstances.

7. The Learned Trial Judge erred in fact and in law in failing to take into account adequately or at all:

a) the fact that the said vehicle had been destroyed before the [applicant] was able to consider his

position in respect of possible criminal charges;

b) the fact that the [Director of Public Prosecutions] did not inform the applicant that the said vehicle

had been destroyed until the 30th of July, 2002.

8. The Learned Trial Judge erred in fact in holding that the [applicant's] legal advisers did not consider

a forensic examination to have been warranted as a matter central to the defence. The said finding

was not supported by the evidence.

9. The Learned Trial Judge erred in fact and in law in failing or refusing to take into account the

evidence of the said expert regarding the potential forensic value of materials other than the said

vehicle which as a result of the failures of the investigating Gardaí, was not available to the defence".

8. Submissions

Written and oral submissions were made on behalf of the applicant and on behalf of the Director of Public Prosecutions.

9. Law

The applicant relied on the principles of law referred to in Braddish v. Director of Public Prosecutions. [2001] 3 I.R.

127; Dunne v. Director of Public Prosecutions. [2002] 3 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; and McFarlane v. D.P.P. [2008] I.E.S.C. 7, as to

the responsibility of An Garda Síochána to seek out and preserve evidence relevant to guilt or innocence of an accused and

as to the circumstances in which a failure to do so may ground an order prohibiting a trial.

10. The Vehicle

The applicant faces charges that in the early hours of 3rd June, 2001, he was driving a car which it was alleged he took

without the owner's permission. The owner of the vehicle was a French National, Emmanual Fabien Boucher, who was

living in Ireland, and who in 2000 bought a red Mazda 87 LH 3345 for £800 and insured it for a year. On 1st June, 2001,

he parked the car on Hill Street, off Parnell Street, at about 10 p.m. When he returned at 2 a.m. the car was gone. In a

statement Mr Boucher explained that:-

"I did not report it stolen because it was not worth reporting and it saved me from having to dispose of the car. The

insurance had expired and the car needed a lot of work to pass an M.O.T. I could not afford this so I did not report the

theft. I did not give anyone permission to take, use or drive the car. I assumed that the car was impounded and towed away.

I did not think the car had been stolen as it was junk and the exhaust fell of and was in the boot".

11. Evidence destroyed

Inspector Thady Muldoon deposed, by affidavit dated 20th March, 2003, that he was an inspector, of Kevin Street Garda

Station. He stated that on 25th July, 2001 he directed that a red Mazda 323 which was parked in the yard of Kevin Street

Garda Station be destroyed. He did this because the vehicle had been inspected, had not been claimed by its owner, and was

in a dangerous condition. The car was in three separate pieces and was of no commercial value. He also deposed that at that

time the injured victim was making a recovery in hospital.

12. Eyewitnesses

The applicant faces an indictment claiming that in the early hours of 3rd June, 2001, while driving a car which he is alleged

to have taken without the owner's permission, he caused the car to crash, thereby occasioning serious injuries to a person

who was a passenger in the car. That passenger, Ms. Debbie Mulhall, later died as a result of the injuries sustained. There

were numerous eyewitnesses. Two members of An Garda Síochána noticed the car being driven out of town at high speed.

In a statement Garda Geraghty stated that as the patrol car approached the entrance of St James's Hospital he saw the

vehicle travelling very fast towards the garda car. Witnesses stated that an engine was heard revving. Raymond Rooney

stated that an engine was heard racing, as though a car was travelling at very high speed. Sadie Rooney stated that she heard

an engine racing, like it was driving very fast, she turned, she heard a loud bang and she saw the light pole falling to the

ground and the engine sliding up the street. Therese Kenny made a statement also, she heard engine revving, and she saw

the car flying down the street as if it was out of control. The gardaí were on the scene immediately after the crash. There

was no other vehicle involved. Ms Mulhall was thrown from the vehicle, and was found lying some distance from the car.

The existence of eyewitnesses is relevant in the balancing exercise which is required to be done by a court.

13. Trapped

It is also relevant, and a factor, that the applicant was trapped in the car. As a consequence, there is no issue as to whether

he was driving or not. Also, this was a single vehicle crash, into a light pole. This is not a prosecution dependent upon

circumstantial evidence.

14. Reports

Reports on the vehicle exist and are available to the applicant.

The vehicle was examined by the Public Service Vehicle Inspector on the 13th June, 2001. Garda Adrian Tucker made a

report. As to the mechanical examination, he reports:-

"Steering: The steering mechanism was extensively damaged but I am satisfied from my examination that all components

were intact pre-impact.

Brakes: The brake operating mechanism was extensively damaged but all components were fitted. I found the front brake

pads on the left side were extensively worn to an extent that the brake lining material was completely worn away. This

would have the effect of reduced brake efficiency, and also create an imbalance between left and right when the brakes

were applied.

Suspension: The rear suspension shock absorbers were extremely worn with the effect that there was no damping of any

shocks experienced at the rear of the vehicle. The suspension bushings at the rear suspension arm and the bushings at the

rear anti-roll bar were excessively worn. There was also extensive rust corrosion at the left rear suspension arms and also at

the left and right floor and cill panels, in particular at the mounting area for the rear suspension units.

Extensive rust corrosion was also evident at the front cross-member, which had become dislodged from the vehicle.

The overall effect of the extensive rust corrosion, both to the front and rear of the vehicle, caused the structure of the

vehicle to be weakened considerably, coupled with the worn suspension and shock absorbers, creates a situation whereby

the vehicle would be considered extremely unstable and dangerously defective."

The applicant engaged Jordan M. & Associates, Consulting Engineers, who have made a number of reports relating to the

proposed garda evidence, including as to the site of the accident and the condition of the car, which is favourable to the

applicant. These reports refer to the importance of the car as evidence, and argue that it should have been available for

inspection. The Director of Public Prosecutions has not disputed any expert evidence to be adduced on behalf of the

applicant.

The reports of Dr. Jordan, forensic engineer of Jordan M. & Associates, comment on the potential value to the defence of

evidence which could have emerged from an examination of the vehicle. Dr Jordan deposed, inter alia, that the applicant

had been denied an opportunity to adduce evidence which could have been of significant assistance to the defence of the

criminal charges which he is facing. He deposed, at paragraph 7 of his first affidavit:-

"7. I say that certain matters arising from the Garda examination of the vehicle in question support the proposition that the

vehicle was defective in ways which might reasonably not have been noticed by the driver and which might reasonably have

caused or contributed significantly to the causation of the impact. These matters include:

a) the defective suspension;

b) defective brakes; and

c) rust and corrosion.

8. I say and believe that in respect of these matters (a), (b) and (c) above, it could reasonably have been of significant

assistance to the Applicant had I been in a position to assess the extent of those defects and potential impact of each

individually and in combination."

He refers to the apparent failure of the gardaí to measure the inflation level of the tyres, and to assess whether there was

previous collision damage to the vehicle. Also, the possibility of a defective steering mechanism causing the accident is

referred to by Dr Jordan. At paragraph 5 of the second affidavit he deposes:-

"5. Regarding the steering mechanism, I say and believe:

(a) that it appears from the extent of the damage to the vehicle apparent from the photographs that it would not be safe to

rely on the PSV Inspector's opinion that the steering mechanism was intact prior to collision;

(b) that as a matter of probability, if I had had an opportunity to examine the vehicle, I would have been able to assert as a

matter of strong opinion that it was not possible to come to a reliable conclusion that the steering mechanism was intact prior

to the collision;

(c) however, the corollary of this is that I believe that it is unlikely that I would have been in a position following such

examination to establish that the steering mechanism was defective."

He deposed that a type of blowout could have caused the accident, and refers to the lack of preservation of the tyres.

Having had the benefit of the photographs, in a supplemental affidavit he deposed that the failure to permit a proper

examination of the tyres has made it impossible to draw firm conclusions. However, he deposed in paragraph 6 of his

second affidavit:-

"a) … re-iterate that the failure to carry out or permit a proper examination of the tyres has made it impossible for firm

conclusions to be drawn;

b) that photograph 2a of 2315/01 does provide clues which indicate that the front right tyre may have deflated due to a

blow-out or sudden deflation (which could have precipitated the loss of control of the vehicle) and may not have deflated

due to direct impact;

c) however, that the photographic evidence in respect of this tyre is inadequate since it is confined to an overhead view;

d) if I had had an opportunity to examine the tyres themselves, as a matter of probability, I would have been in a position to

offer a strong opinion as to the causation of the deflation of the right front tyre which could have been of significant

assistance to the defence;

e) that the photographic evidence in respect of the left rear tyre (2316/01 Nos. 9A, 10A, 20A) is sufficient to express the

strong opinion that there are signs consistent with the proposition that the tyre deflated as a result of direct impact."

While references are made to the difficulties caused by the absence of the vehicle, the reports of Dr. Jordan will be of

assistance to the applicant's defence.

15. Condition of Car

The Director of Public Prosecutions has decided not to proceed on the issue of the condition of the car. Aonghus Dwane,

Senior Prosecution Solicitor, in an affidavit on behalf of the Director of Public Prosecutions, deposed that on the 16th

January, 2003, he wrote to the applicant's solicitor stating:-

"Please note that in relation to the prosecution herein, I am instructed to inform you that the Director of Public Prosecutions

is prepared to proceed with same without tendering the evidence of Sergeant Colm Finn and Garda Tucker pertaining to the

alleged dangerous condition of the car. Accordingly, as the condition of the car will not be an issue, please confirm that you

will withdraw your application for prohibition".

16. Law

In considering the appropriate test, in a situation where evidence has been destroyed pre-trial, it is necessary to consider the

circumstances of the case, which may vary considerably, and which will govern each case.

In Murphy v. D.P.P. [1989] I.L.R.M. 71 the accused was charged with a number of offences arising out of an incident in

April, 1987, in which it was alleged that the accused had been driving a stolen car which was wrecked in the incident. On

14th May, the applicant's legal advisers informed the gardaí that they wished to conduct fingerprint tests on the wrecked car.

The gardaí did not carry out any fingerprint check of their own and intended relying on visual identification only. On the

11th June, when the applicant's solicitor phoned the gardaí requesting access to the car for the purpose of fingerprint

evidence, he was told that the car had been given to an insurance company interested in its salvage. The accused sought an

injunction to restrain the criminal proceedings on the grounds that the disposal of the car had prejudiced preparation of his

defence by the destruction of evidence which might have assisted him in rebutting the visual identification of the gardaí. The

Director of Public Prosecutions submitted that the applicant had been afforded an opportunity to inspect the vehicle and had

failed to act within a reasonable time, that no purpose could be served by a forensic examination long after the events, and

that there was no requirement in law for the prosecution to forensically examine cars in such cases.

The facts of that case are clearly distinguishable from those of this case.

First, there is no issue of visual identification in this case. Secondly, there was no request within a reasonable time to

examine the car. Thirdly, it was not a situation where, a request having been received, the car was destroyed. Fourthly, in

Murphy v. D.P.P. the gardaí did not carry out any fingerprint check. It is not disputed that the applicant in this case was

the driver of the car. In this case the vehicle was examined by the Public Service Vehicle Inspector, which report is available

to the applicant. Fifthly, the applicant has his own engineer's report on the Public Service Vehicle Inspector's report, and the

gardaí reports. These may be used as evidence in court. Thus the circumstances are different in this case to those in

Murphy v. D.P.P.

This line of case law is grounded on the statement of Palles C.B. in Dillon v. O'Brien & Davies (1887) 20 L.R. Ir. 300,

where, at p.317, Chief Baron Palles stated:-

"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."

In Murphy v. D.P.P. Lynch J. referred to the interest of the State as including a duty to preserve "material" evidence.

Reference was made to The Queen v. Lushington Ex Parte Otto [1894] 1 Q.B. 420 where Wright J. ruled (at pp. 423

and 424):-

"... I take it that it is undoubted law that it is within the power of, and is the duty of, constables to retain for use in Court

things which may be evidence of crime … I think it is also undoubted law that when articles have once been produced in

Court by witnesses, it is right and necessary for the Court, or the constable in whose charge they are placed (as is generally

the case) to preserve and retain them, so that they may be always available for the purposes of justice until the trial is

concluded."

The later part of this quotation refers to evidence produced in court by witnesses and the duty to preserve the evidence until

the trial is concluded. That is not applicable here. It is the first part of the quotation that is relevant - referring to the

retention for use in court of things which may be evidence of crime.

Lynch J. referred to the Lushington case as judicial recognition of the duty imposed upon the prosecuting authorities to

preserve all material evidence.

The prosecution are required to observe fair procedures. In The State (Walshe) v. Murphy [1981] I.R. 275 Finlay P. ruled

(at p.293):-

"… there is an obligation on the prosecuting authorities in a charge under s.49 of the Road Traffic Act, 1961 where they

become specifically aware that the person charged has not received a copy of the certificate and requires one, to supply him

with one in such good time as to provide him with a realistic opportunity to have the specimen which he has retained

analysed and to contest the validity or correctness of the certificate which was issued."

Thus, as Lynch J. stated in Murphy v. D.P.P., the courts envisage that an accused person be afforded every reasonable

opportunity to inspect all such material evidence in order adequately to prepare his defence.

In Murphy v. D.P.P. [1989] I.L.R.M. 71, the Garda were aware of the accused's wish to inspect the car. Lynch J. held, at

p.76:-

"I am satisfied that being so aware the Gardaí ought not to have parted with possession of the car without examining it

forensically or alternatively, they should have notified the applicant's legal representatives of their intention of giving it back.

There was no urgent need to return the car to its owner/insurance company."

Thus Lynch J. referred to alternative options, such as examination by the gardaí, or informing an accused of the loss of the

car. In this case there was an examination by and on behalf of the gardaí - one of the alternative options referred to.

The circumstances in Murphy v. D.P.P. were the basis of the High Court decision. The accused in that case did not deny

that he was unlawfully in the stolen car, but he denied driving it. Thus he sought fingerprint evidence. The prosecution

stated that it would rest on the garda visual evidence. But it was the accused's case that his denial would lack the

corroboration of fingerprint evidence. Lynch J. held:-

"It may well be that nothing would have been discovered by the 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.

The authorities establish that evidence relevant to guilt or innocence must so far as it 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 Braddish v. Director of Public Prosecutions [2001] 3 I.R. 127, at issue was a video surveillance tape of a robbery

which was no longer available. It was held that such evidence relevant to guilt or innocence must, so far as was necessary

and practicable, be kept until the conclusion of a trial. This included the preservation of articles which gave rise to the

reasonable possibility of securing relevant evidence. The gardaí have a duty arising from their unique investigative role to

seek and preserve all evidence having a bearing or potential bearing on guilt or innocence. Having referred to the

circumstances of that case Hardiman J. stated (at p.135):-

"It would be difficult to think of evidence more directly relevant than a purported video tape showing the commission of the

crime. But in cases where the evidence is not of such direct and manifest relevance, the duty to preserve and disclose has to

be interpreted in a fair and reasonable manner. It must be recalled that, in the words of Lynch J., in Murphy v. Director of

Public Prosecutions [1989] I.L.R.M. 71, the duty to preserve evidence is to do so 'so far as is necessary and practicable'.

A duty so qualified cannot be precisely or exhaustively defined in words of general application. Certainly, it cannot be

interpreted as requiring the gardaí to engage in disproportionate commitment of man power or resources in an exhaustive

search for every conceivable kind of evidence. The duty must be interpreted realistically on the facts of each case”.

As was pointed out in Bowes v. Director of Public Prosecutions [2003] 2 I.R. 25 - the focus on this type of application to

restrain a trial is on the fairness of the intended trial without the missing evidence, and not on the discovery of shortcomings

in the investigative process.

In McFarlane v. D.P.P. [2007] 1 I.R. 134 the accused sought to prohibit his trial on two issues, (a) prejudicial delay, and

(b) during the time which had elapsed certain exhibits had gone missing. The significance of the exhibits was that it was

alleged by the prosecution that they were found at the place where a kidnap victim was unlawfully held and that they bore

the accused's fingerprints. The items on which the applicant's fingerprints were allegedly found were: (a) a North Connaught

Farmer's one litre milk carton with a sell by date of 16th December, 1983, (b) a plastic container, and (c) a cooking pot.

These items were no longer in the possession of the gardaí. However, the fingerprints had been photographed in situ by

Detective Garda Maguire and these photographs of the impressions were still available. The accused alleged that he was

prejudiced because he was not in a position to comprehensively independently evaluate the alleged physical evidence by an

independent expert retained on his behalf. It was found that the items were lost because of a want of care by the gardaí.

Having analysed the law Hardiman J. held (at p.147):-

"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.

… 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. …

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.

Consequently the relief of prohibiting the trial was refused.

17. Principles

The following are relevant principles:-

(i) Each case should be determined on its own circumstances.

(ii) It is the court's duty to protect due process.

(iii) It is the duty of An Gardaí Síochána to preserve and disclose material evidence.

(iv) This duty to preserve and disclose material evidence is to do so as far as is necessary and practicable.

(v) The duty to disclose and preserve, as qualified by Lynch J. in Murphy v. D.P.P., cannot be precisely defined as it is

dependent on all the circumstances of the case.

(vi) The duty does not require the gardaí to engage in disproportionate commitment of manpower and resources.

(vii) In the alternative to keeping large physical objects as evidence, such as motor vehicles, it may be reasonable in certain

circumstances for the gardaí to have a forensic report on the object.

(viii) The duty should be interpreted in a practical manner on the facts of the case.

(ix) If evidence is destroyed the reason for the destruction, whether bona fide or mala fide, is part of the matrix of the facts,

but it is not a relevant factor in the test to be applied by the court.

(x) All of the above are subject to the fundamental test to be applied by the court, that of "real risk" 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. 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 (which is that case also was pre-trial publicity) he could not obtain a fair trial."

He continued at p.507:-

"… 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 unavoidable unfairness of trial."

(xi) The focus of the inquiry is on the issue of the fairness of the intended trial, and not on shortcomings in the garda

investigation. It is not a garda disciplinary process.

18. Decision

There are two charges on which the applicant is before a trial court and which he seeks to prohibit going to trial. The first

charge is that of using a vehicle without the consent of the owner. In all the circumstances of this case the destruction of the

vehicle is not a factor which gives rise to a real or serious risk of an unfair trial on this charge.

The application for the order of prohibition is primarily directed to the second charge, that of dangerous driving causing

serious bodily harm to another person. The circumstances now include the decision of the Director of Public Prosecutions

not to rely on the condition of the car in the prosecution.

I would apply the principles enunciated in the previous paragraph, and dismiss the appeal.

This application falls to be determined in all the circumstances of the case. These include:-

(i) The car was inspected by the Public Service Vehicle Inspector and the gardaí, and these reports are available to the

applicant.

(ii) The applicant has obtained and may utilise expert reports on these reports and query the evidence of the car.

(iii) The applicant has means, therefore, to put in evidence the condition of the vehicle, as a defence, if he so wishes.

Bearing in mind the charge, and all the circumstances, which include the P.S.V. Inspector's report, the garda evidence, and

the forensic engineer's evidence obtained by the applicant and available to the applicant, I am not satisfied that the applicant

has established that there is a real risk, by reason of the absence of the car, of an unfair trial arising from the destruction of

the car.

19. Best Practice

It would be best practice for An Garda Síochána to give notice, to inform an accused, or a potential accused, 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, if they so wished. Such a notice could be served at the same time as a Notice of Intention to

Prosecute. The notice could inform of the place where the vehicle was, that it could be examined, and of the intention to

destroy the vehicle at a future date, perhaps one month hence. The receipt of such a notice, at the same time or shortly after

the Notice of Intention to Prosecute, would alert a person to the situation and give time to have the car examined if they so

wished, or to make a reasonable request that it not be destroyed.

20. Conclusion

For the reasons given I would dismiss the appeal.