THE SUPREME COURT
[Appeal Nos: 22/2013 and 24/2013]
The Director of Public Prosecutions
Judgment of Mr. Justice Clarke delivered the 13th July, 2017.
1.1 This judgment is concerned with an application to revisit a previous judgment of this Court. On January 29, 2015, this Court gave an initial judgment on an appeal against that part of the order of the High Court in these proceedings which declined to prohibit a then pending criminal trial in which the appellant (“Mr. Nash”) was the accused. This Court dismissed that aspect of the appeal (Nash v. Director of Public Prosecutions  IESC 32 (“the prohibition decision”).
1.2 However, a second leg of the appeal which had been before this Court concerned the dismissal by the High Court of a claim by Mr. Nash for damages for an alleged breach of his entitlement to a timely trial under either or both of the provisions of the Constitution or the European Convention on Human Rights. After Mr. Nash’s criminal trial had gone ahead (and he had been convicted), that second aspect of the appeal came to be heard. The Court also dismissed that part of Mr. Nash’s appeal. (See Nash v. Director of Public Prosecutions, unreported, Supreme Court, Clarke J., 24th October 2016) (“the damages judgment” or “the judgment”). For reasons connected with the issues considered in this judgment, that damages judgment has not yet been published on the website of the Courts Service.
1.3 In passing it should be noted that Mr. Nash has appealed against his criminal conviction to the Court of Appeal and in that context it is particularly important that nothing is said in the course of this judgment which might potentially impact on that appeal. However, that being said, shortly after this Court had delivered the damages judgment, correspondence was received from solicitors acting on behalf of Mr. Nash which took issue with some of the facts appearing in that judgment. Thereafter a motion was brought which sought to have certain facts corrected and suggested that the Court might like to reconsider its order in the light of what was said to be the correct facts. Against that background it is necessary first to touch on the proper approach of the Court to an application such as that with which this judgment is concerned. In that regard, I agree with the judgment of O'Donnell J. on the legal framework within which applications of this type can and should be considered. I also agree with the observations of O'Donnell J. on the requirement that there be clarity on the question of whether it is contended by an applicant that the high constitutional threshold, which is required to be met if the result of a final decision of this Court is to be altered, is met. In that context I propose first to deal with the proper approach to the correction of errors.
2. The Proper Approach
2.1 As it happens a not entirely dissimilar issue has already arisen in this case. When the appeal came back before this Court for the purposes of considering the question of damages and costs, counsel on behalf of the Director of Public Prosecutions indicated that there was concern that some of the facts set out in the judgment of the late Hardiman J., given on the earlier issue of prohibition of Mr. Nash’s criminal trial, were not fully correct.
2.2 In a statement subsequently made by the Chief Justice on behalf of the Court on the 24th October, 2016 (at the same time as the damages judgment was delivered), the Court indicated that it was not satisfied that it was open to it to amend the judgment of Hardiman J. given that, tragically, Hardiman J. had died in the intervening period. However, the Court did point out that it was, of course, the case that a judge is free to correct any typographical or similar errors identified in an unapproved judgment handed out to the parties on the day when judgment is given. It was further noted that judges have always been willing in that context to consider correcting any errors of fact which are brought to their attention.
2.3 In the particular and unfortunate circumstances which then prevailed, the best which the Court felt it could do was to indicate that it was sure that Hardiman J. would have been happy to correct the relevant errors. The Court also directed that there should be published a document for inclusion alongside the judgment of Hardiman J. on the website of the Courts Service noting the relevant facts.
2.4 It seems to me that this is clearly the correct approach. If there truly are errors of fact in a judgment then a judge should, of course, be willing to correct them so that the record can be set straight. However, it does need to be said that this undoubted jurisdiction should only be exercised where the error is of some materiality, either to the case, or to the legitimate interests of any person who may either be a party to the case or whose actions may be described in the judgment. On the occasion just mentioned the reason why counsel for the D.P.P. expressed concern was that a senior garda felt that what were said to be factual errors reflected badly on him. The senior garda concerned was not, of course, a party to the proceedings and was not subject, therefore, to any potentially adverse order arising from the result of the case. On the other hand, the Court was cognisant of the fact that the senior garda concerned had a legitimate interest in ensuring that his involvement in the events surrounding the investigation into Mr. Nash’s potential culpability for the Grangegorman murders were accurately described.
2.5 It seems to me that this approach remains the appropriate approach to be adopted on this application. Insofar as any material error of fact can be established then it should be corrected if for no other reason than to ensure that the record is correct. That jurisdiction should only be exercised, however, where there is some reasonable materiality to the potential correction.
2.6 There is, of course, then a second question as to whether even if there be an error of fact same could be said to have any consequence for the case. That is a separate matter which needs to be considered but only after it has been determined whether there are any errors of fact.
2.7 Finally, it does need to be emphasised that what are described as “errors of fact” in this judgment are statements of fact which, on the basis either of uncontested or unchallenged evidence before the court of trial or undisturbed findings of the trial judge as to the facts, can be shown to be incorrect. Many cases involve disputed facts which are required to be resolved either by a judge sitting alone or, in appropriate cases, by a jury. The fact that one or other party may not like the facts as found by the decider of fact and may assert that the facts are as per evidence given by or on behalf of the party concerned, does not mean that it can be said that there is an error of fact simply because the appeal court holds that the findings of fact of the trial judge or jury cannot be disturbed on appeal and describes the facts accordingly.
2.8 It follows that the errors of facts asserted in this case must be reviewed by that test. Are the facts as described in the damages judgment at variance with facts which were either undisputed or found by the decider of fact? Against that background it is next necessary to turn to what are said to be the errors of fact.
3. The Alleged Errors
3.1 In substance three sets of facts are said to be erroneously set out in the damages judgment. The first two sets of facts are somewhat connected. To an extent they turn on the use, in that judgment, of the word “sample”. The relevant passages of the judgment are to be found principally in paras. 3.10 and 3.11.
3.2 The context, for the purposes of the appeal then under consideration, in which the facts are thus described was the situation which pertained during the early part of the investigation by An Garda Síochána into the Grangegorman murders when an attempt was made to obtain DNA samples from a jacket connected with Mr. Nash for the purposes of ascertaining whether those samples might be associated with the victims, thus providing evidence supportive of Mr. Nash’s guilt.
3.3 In the passages concerned two statements are made concerning samples which are said to be at variance with what actually occurred. The first is a statement that the original samples taken were tested to destruction and were no longer available. The second concerns a suggestion that no samples were retained by the forensic science laboratory during the period between when the initial attempts to identify DNA failed and the time, described in more detail in the judgment, when the issue was revisited leading to the identification of DNA which was said to match that of a victim and thus provide an evidential basis for the prosecution of Mr. Nash. It will be necessary to return to those two contentions in due course.
3.4 The third contention relates to the timing at which more advanced techniques of DNA testing which, it would appear, allowed DNA to be analysed from much smaller particles of material than had heretofore been the case, became available. It is said that those techniques were available at an earlier stage than is described in the judgment. It will also be necessary to turn to that aspect of the facts in early course. However, it is first appropriate to consider the “samples” issue.
4. The Samples Issue
4.1 The first significant mention of samples is to be found in para. 3.10 of the judgment. There, in describing the initial investigations, it is said that not only “were those samples insufficient to allow for results but also that, in the course of attempting to analyse the samples in question, same were necessarily destroyed so that the samples which had originally been taken were no longer available”. However, earlier in the same paragraph it is clear that the samples being spoken of are “blood samples found on clothing belonging to Mr. Nash”. It is, therefore, clear that what is being spoken of in that passage of the judgment are blood samples taken from Mr. Nash’s clothing and then tested to destruction without yielding any result.
4.2 It is obviously the case that what was retained, whether in the form of parts of that clothing such as a button and thread to which reference will subsequently be made, or, indeed, the clothing itself, was not tested to destruction. On behalf of Mr. Nash it is sought to be argued that that aspect of the judgment is incorrect because it is asserted that what are said to be “samples”, in the sense of samples of clothing such as the thread and button to which I have already referred, were retained and were available for further investigation at any time. But it is absolutely clear from para. 3.10 of the judgment that the reference to samples being tested to destruction was a reference to blood samples which were found on the clothing rather than to the clothing itself or any part of it.
4.3 Finally, it is worth noting that the whole topic of the early samples being destroyed in the course of testing was one which was raised in the course of oral argument by counsel for the D.P.P. and was not questioned by counsel for Mr. Nash in reply. One would have expected, had it been considered at the time that the issue was both important and that the Court had been given a misleading impression by counsel for the D.P.P., that the matter would have clearly been raised in reply.
4.4 In all those circumstances, I am not satisfied that under this aspect of the samples issue there can be said to be any error in the judgment. The judgment accurately records what happened. Samples were taken for testing. It can safely be assumed that the samples were blood but it makes no difference in practice if they happened to be of some other human material. The samples were destroyed while being tested and no samples of human material as such were retained.
4.5 The second aspect of the samples issue where it is said that there is a factual inaccuracy in the judgment is to be found in para. 3.11 which suggests that the buttons and thread to which reference has already been made were returned to the forensic science laboratory in July 2007. From that statement it might reasonably be inferred that the judgment operated on the basis that the relevant button and thread were, after the time of the initial earlier investigations, held by An Garda Síochána but only later returned to the forensic science laboratory. It would appear to be an accepted fact that the button and thread in question were retained by the forensic science laboratory during the relevant period. There is no doubt, therefore, that to that extent the judgment is inaccurate. It will be necessary to consider whether anything turns on the distinction between what is said in the judgment and what actually happened in due course.
4.6 However, it is worth noting that the passage from para. 3.11 which is not fully accurate makes reference to the judgment of Charleton J. given on the earlier occasion of the appeal leading to the prohibition decision. There is a reference in para. 11 of the judgment of Charleton J. in question to exhibits being brought back to the forensic science laboratory for further investigation in June (which, from the context, refers to June 2009). The judgment of Charleton J. immediately goes on to state that, on the 16th July, buttons and thread from the jacket of Mark Nash apparently developed a DNA profile matching that of one of the victims. The judgment then addresses the question of the examination of the jacket. While the judgment is not explicit on the question of whether the button and thread in question were part of the exhibits which were returned to the forensic science laboratory in June, one might have thought that had the distinction between whether that button and thread were held in the intervening period in the forensic science laboratory, or alternatively otherwise in garda custody, been considered to be important to the case, some clarification would have been made in the course of the oral hearing on the damages issue. In that context it must be noted that the judgments leading to the prohibition decision had, of course, been available to the parties for a considerable period of time in advance of the hearing relating to the damages question. Furthermore, it should be noted that while an application was made in the context of the hearing of the damages issue to admit as fresh evidence the transcript of Mr. Nash’s criminal trial, that application was refused. The only evidence before the Court on the damages issue was, therefore, the evidence given before Moriarty J. in the High Court. That fact may have contributed to some of the lack of clarity about precise details. In addition, it is worth noting that the basis on which it was sought to introduce the detailed exploration of the facts surrounding the forensic investigation which occurred at Mr. Nash’s criminal trial was not on the basis of a suggestion that the transcript was relevant to any of the issues currently being dealt with in this judgment. As appears from the affidavit sworn by Mr. Nash’s solicitor to ground the application to admit the transcript of his trial and other materials as fresh evidence, the application related to what were described as “twin issues”, being alleged prejudice arising out of the timing of Mr. Nash’s sentence and a risk of contamination of, or damage to, forensic evidence.
4.7 All that being said, it is appropriate that, the issue having been raised, the record be corrected and that it be made clear that the relevant button and thread were held in the forensic science laboratory for the period between the initial investigation and the later time when further investigations were carried out. As noted earlier, it will be necessary to turn, in due course, to the question as to whether that distinction is of any materiality to the issues which arose on this appeal. It is next, however, necessary to turn to the third issue on which it is said the judgment is factually inaccurate, being the timing of when the relevant advanced forensic techniques became available.
5. The Timing of the Advance in Forensic Science
5.1 In this context the first relevant passage from the damages judgment is to be found in para. 4.11 which indicates that the time by which there had been a sufficient advance in technology to enable smaller samples to produce usable DNA results had arrived by “2005 or 2006 although there was some suggestion at the hearing of this appeal that the time in question may have been earlier”. On the same topic it is suggested at para. 4.15 that it might “have been possible that such a review might have occurred two or three years earlier” with the reference to a review being a review using the new technology in question. It is clear that the ultimate decision to go ahead with a final attempt to find DNA samples was taken in early July 2009. It was, in fact, accepted in cross-examination that the relevant technology was available in Dublin from 2005 although the precise date in that year was not given in evidence. It follows that it would be more accurate to speak of the relevant technology as having been available in Dublin from 2005 rather than stating that it was available from 2005 or 2006 and it would also be accurate to state that the technology concerned was available three or four years earlier (depending on the time in 2005 from which it would have been available) rather than two or three years.
5.2 It should also be recorded that it was accepted in evidence before the High Court that the technology in question may well have been available outside Ireland from an earlier period, perhaps as far back as 2001.
5.3 It must also be recorded that the general presentation of the documents, materials and evidence and the focus of the argument at both the hearing leading to the prohibition decision and also at the hearing leading to the damages judgment did not reflect the detailed focus on the precise issues of fact raised on this application. It might have been thought that, had those matters been considered to be of particular materiality to the assessment which the Court was being invited to make, same would have clearly featured in the presentation of the case.
5.4 Be that as it may, it is necessary to record, therefore, that the statements contained in the damages judgment concerning the time when the relevant technology became available are not fully accurate. In summary, it would first have been better to describe separately the time at which the technology became available in Dublin and the time at which it might have been available outside the jurisdiction. In the former case, it would have been more accurate to describe it as having been available in 2005 as opposed to “2005 or 2006” and it would have been accurate, therefore, to describe it as having been available three or four years before it was actually deployed in the final cold case review of Mr. Nash’s case rather than the two or three years as appears in the damages judgment. In addition, it would have been more complete to record that the technology was available in other jurisdictions some three or four years earlier than it had become available in the forensic science laboratory in Dublin.
5.5 Having therefore identified two matters in the judgment which were not fully accurate, I am more than happy that the correct position should be recorded both in respect of the location of the button and thread during the period between the initial investigation and the final examination, and also the timing of the availability of the relevant technology.
5.6 On that basis it is necessary to turn to the question of whether those corrections require any change to be made to the overall assessment reached in the damages judgment to the effect that there was no culpable delay.
5.7 As indicated earlier, I am in full agreement with the views expressed by O'Donnell J. as to the legal framework within which any potential reopening of a final judgment of this Court should be approached. As O'Donnell J. points out, the fact that there may have been even a material error in a final judgment of this Court does not, in and of itself, and having regard to the constitutional principle of legal certainty, require that the final order of this Court must necessarily be revisited. However, given that the issue has been raised, and given that the damages judgment was a judgment of my own, I feel it appropriate to comment on whether any of the factual questions addressed would, in fact, have altered the proper assessment of the question of whether there was culpable delay.
6. Do the Factual Corrections Change the Assessment?
6.1 I propose dealing with the two factual matters identified separately. I should first say that I am strongly of the view that the correction to the facts surrounding the location of the button and thread during the relevant period could have no material effect on the overall assessment of culpability. It should firstly be pointed out that the forensic science laboratory is, by statute, and for important reasons of policy, independent of An Garda Síochána. The decision to conduct a cold case review is ultimately one to be taken by the police authorities. The forensic science laboratory carried out each of the tests which they did at the request of An Garda Síochána. It is impossible to see that it made any difference in practice that some of the materials which ultimately yielded results were, for the relevant period, in the custody of the forensic science laboratory as opposed to being held as potential evidence by An Garda Síochána. In one case, if a decision to conduct a cold case review including further forensic investigation was taken, it would be necessary simply to ask the forensic science laboratory to conduct the tests. In the other case, it would be necessary to bring the materials to the forensic science laboratory for testing. But, in the context of any question of delay, that is a difference which is wholly immaterial. I cannot see, therefore, how the fact that it may be appropriate to correct the record by making clear that the description of where those materials were during the relevant period, as set out in the damages judgment, is not accurate, could be said to make any difference to the result.
6.2 So far as the timing at which the relevant technology became available is concerned, it is true that the technology in question was available in Dublin for approximately one year more than described in the judgment and was available in other jurisdictions for, perhaps, four years before that. But it is important, in that context, to return to the ultimate reasoning behind the finding of lack of culpable delay which is to be found in the damages judgment.
6.3 At para. 4.14 it is made clear that the reasoning in question is based on the fact that “This was a cold case which was looked at again from time to time”. It is noted that on one occasion improved technology permitted results to be derived from further testing. It is true that it must now be accepted that it might have been possible to conduct that testing in Dublin perhaps one year earlier than is recorded in the judgment and that it might, in theory, have been possible to send the materials for testing to some other jurisdiction for a period of time before that. However, none of that takes away from the fact that this was a cold case and that there was no particular reason why any of the investigating gardaí could have expected that there was a particular likelihood that further testing, in the light of improved technology, might yield results.
6.4 It is in that context that the first of the samples issues analysed earlier is of some relevance. There was no blood or other samples of human material sitting, either in the forensic science laboratory, or in the custody of An Garda Síochána, during the relevant period. What was available, in part in the forensic science laboratory, and in part in the custody of An Garda Síochána, was an item of clothing (or, in the case of the forensic science laboratory, a button and thread taken from the item of clothing) from which it ultimately proved possible to obtain human material capable of generating a DNA profile.
6.5 There are, at any given time, many unsolved cases on the books of An Garda Síochána. There is, in the common law system, no legal formality as to when an investigation can be said to have commenced or be closed. Legal formality only arises in the context of the gathering of evidence by compulsion (including the arrest of persons for questioning) or by persons being formally charged with offences. But at all other times crimes are simply potentially under investigation and every such case which may have gone cold cannot realistically be the subject of constant review. It was that analysis which led to the conclusion of no culpable delay in the damages judgment. I do not see how, in the light of that reasoning, the fact that the technology might have been available a little earlier in Dublin and for a longer period elsewhere, affects the assessment.
6.6 I would not, therefore, consider that any legitimate basis has been put forward for suggesting that a different conclusion could have been reached. That being said I am happy that the record should be corrected in the manner identified in this judgment.
6.7 I should not leave this judgment without commenting on one matter set out in the affidavit sworn by Mr. Nash’s solicitor in grounding the application to which this judgment is directed. At para. 15 it is asserted that “a DNA sample was on file in the forensic science laboratory since 1998”. It does need to be recorded that that statement is simply untrue. It is correct that there was a button and some thread in the forensic science laboratory since 1998. It is true that it subsequently transpired that those materials contained a miniscule amount of DNA which proved, in the light of improved technology, to be capable of yielding a DNA result. But there was no known DNA sample held in the forensic science laboratory between 1998 and 2009. Nor was there evidence to suggest that there were indications visible to the eye or learned from previous investigations which would have suggested that such samples were there. It follows that it is a very significant overstatement of the facts to suggest that “there was a DNA sample on file” during the relevant period.
7.1 For the reasons identified earlier in this judgment, I would propose to correct the damages judgment in the following manner.
7.2 For the reasons set out in this judgment, I would not propose making any further amendments and, in particular, do not believe that it is necessary to make any amendments relating to the issues raised in relation, in particular, to paras. 3.10 and 3.11 concerning “samples”.
(a) By deleting the second and third sentences in para. 3.11 and replacing them with the following:-
(b) By amending the second sentence of para. 4.11 by deleting all of the words after “2005” and replacing them with “in Dublin”. Furthermore, an additional sentence should be added at that point stating as follows “That technology was available in certain other jurisdictions for approximately four years before that time”.
“Since the time of the initial investigation into the Grangegorman murders, a button and thread had been retained by the forensic science laboratory but the jacket from which that button and thread had been obtained (being Mr. Nash’s jacket) had been separately retained by An Garda Síochána. In the context of a case review, the jacket was returned to the forensic science laboratory and tests involving new technology were applied both to the retained button and thread and to other aspects of the jacket.”
(c) By amending para. 4.15 in the last sentence by changing “two or three years” to “three or four years” and by adding after the word earlier “or, indeed, at an even earlier time if the materials had been sent outside the jurisdiction for investigation”.
7.3 Having made the corrections referred to above, however, I am not satisfied, again for the reasons set out in some detail in this judgment, that those corrections alter the overall assessment as set out in the damages judgment which was to the effect that there was no culpable delay. I have indicated my agreement with the judgment of O'Donnell J. as to the legal framework within which applications to revisit final orders of this Court should be approached. However, for the reasons set out in this judgment, I would go further and indicate that the errors of fact identified would not, in any event, lead to any different conclusion on the question of culpable delay. I would not, therefore, propose that any order should be made other than to identify the corrections previously mentioned.