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Judgment
Title:
Bowes -v- Director of Public Prosecutions; McGrath -v- Director of Public Prosecutions
Neutral Citation:
[2003] IESC 9
Supreme Court Record Number:
88/02 & 92/02
High Court Record Number:
2000 138 J.R. & 2001 777 J.R.
Date of Delivery:
02/06/2003
Court:
Supreme Court
Composition of Court:
Keane C.J., Murray J., McGuinness J., Hardiman J., Geoghegan J.
Judgment by:
Hardiman J.
Status:
Approved
Result:
Allow And Vary
Judgments by
Link to Judgment
Concurring
Hardiman J.
Keane C.J., Murray J., McGuinness J., Geoghegan J.


[2003] IESC 9
THE SUPREME COURT
92/02 & 88/02
Keane C.J.
Murray J.
McGuinness J.
Hardiman J.
Geoghegan J.
      Between:
JAMES BOWES
Applicant/Appellant
and
THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
and
      Between:
DEIRDRE McGRATH
Applicant/Appellant
and
THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
JUDGMENT of Mr. Justice Hardiman delivered the 6th day of February, 2003.

1. These two cases were heard one after the other and the principle submissions were common to each. Each is concerned with a situation in which the Gardaí were at one stage in possession of an item of alleged evidential value, but parted with the possession of it before, it is claimed, the applicant had an opportunity of examining it.

2. While this broad factual matrix is common to each, the cases diverge widely in their details. These may be summarised as follows.

(a) Mr. Bowes case.

3. The case against James Bowes relates to the events of the 3rd April, 2000. It is alleged that on that date in James’s Street, Dublin, he was in possession of heroin for sale or supply; that he unlawfully possessed heroin, and that he was in possession of the heroin for sale or supply where the market value of the heroin exceeded £10,000. No issue has been taken with the summary of the facts given by the learned trial judge (Ó Caoimh J.) either in the Notice of Appeal or in argument. The prosecution say that the applicant was stopped at James’s Street on the 3rd April, 2000, while driving a Honda Accord car. The car was searched and a substantial quantity of heroin was found in the boot. The Gardaí took possession of the car and brought the applicant before the Court almost immediately. The case against the applicant was adjourned from time to time in the District Court between April 2000 and the 20th September, 2000. On that date the charges were struck out in the District Court because the Book of Evidence had not been served. The applicant was recharged with the same offences on the 26th April, 2001 and a Book of Evidence was served on the 17th May, 2001. This disclosed that the Garda Technical Bureau had carried out a forensic examination of the vehicle on the 3rd April, 2000 and found that what they believed to be the applicant’s fingerprints were on a number of items found in the boot of the car. They also found a single fingerprint of the applicant’s in the car.

4. After service of the Book of Evidence the applicant was sent forward for trial to the Dublin Circuit Criminal Court on the 31st May, 2001. The case was mentioned in that Court on the 29th June, 2001 and the applicant was arraigned there on the 17th July of the same year. A trial date was fixed for the 13th November, 2001. On that date, however, the case was adjourned for one week to the 20th November, 2001. On the 15th November, 2001 counsel for the applicant indicated to the Dublin Circuit Criminal Court that the matter was ready for trial the following week. However on the afternoon of the 16th November, 2001 the applicant’s solicitor sent a fax to the Chief State Solicitor’s office requiring:-

      “(1) Full details of all technical examinations carried out on the car 92D 7570 to include reports, photographs and any test results,

      (2) All photographs of the car taken while in garda custody,

      (3) Details of all movements of the car whilst in garda custody,

      (4) Details of the date on which the car was destroyed”.

5. It will be noted that this fax was sent on a Friday afternoon, the trial being fixed for the following Tuesday.

6. The State Solicitor replied the same day saying “Please state your reasons as to why at this late stage you are looking for the information contained in your correspondence”. Later still on the same afternoon the applicant’s solicitor replied saying “Please be advised that these are matters pertaining to our defence and are required”.

7. At 10.11pm on the same Friday night the applicant’s solicitor stated that he was intending to apply for an adjournment of the trial on the following Monday morning on the basis of “the current confusion in relation to the car which our client was travelling in at the time of his arrest”, and also due to a recent bereavement. However, no application for an adjournment was actually made. Instead, on the morning of the trial date the applicant’s counsel indicated that he was seeking judicial review in the High Court. It appears that the application for leave was made on that morning.

8. It transpired that, after the forensic examination on the day of the applicant’s arrest, the car in question was stored in Blanchardstown Garda Station. There is a record that on or about the 8th April, 2001 a computer search was conducted in relation to the car to see if it had been reported stolen: it had not. It appears, though there is no direct evidence of this, that the vehicle was shortly thereafter removed from Blanchardstown Garda Station and scrapped. It also appears from the grounding Affidavit of the applicant that shortly before the 16th November, 2001 the applicant’s solicitors were informed by the Gardaí that the vehicle was not available for inspection as it had been destroyed at the Hammond Lane Foundry.

(b) Ms. McGrath’s case.

9. Ms. Deirdre McGrath is charged with dangerous driving causing death. She was involved in a traffic accident at Inverin, Co. Galway on the 21st March, 1999 in which a motorcyclist received injuries from which he later died. A summons alleging the offence was served on her on the 24th September, 1999. Prior to that, on the 5th August, 1999 the motorbike in question had, at the request of the deceased’s family, been released to a motor cycle dealer. According to a fax from the investigating garda of the 9th February, 2000 “the bike has been broken up for parts”. It seems that the engine was removed from it in November 1999 and the tyres in January 2000.

10. The applicant consulted a solicitor within days of service of the summons. On the undisputed evidence she had not previously consulted a solicitor but had been attending intensive counselling for her extreme distress in the aftermath of the accident. The solicitor consulted counsel who on the 11th October, 1999 advised him to seek details of any forensic reports and to have both vehicles professionally examined. On the 20th October, 1999 the applicant’s solicitor sought various documents from the Gardaí including a “Motor Forensic Report” on the motorbike. On the 1st November, 1999 the relevant Garda Superintendent replied that a Book of Evidence was being prepared and “all the information requested by you will be contained in this book”. The solicitor’s attendance note of the same date, which was the return date of the summons, records that he indicated to the Court that the defence wished to have the case adjourned until after Christmas to enable them to have time to consider the Book of Evidence, which had not yet been served, “and indeed perhaps engage a forensic engineer ourselves to examine the motorcycle which was involved in the accident”. The case was adjourned to the 17th January. On the 15th December, 1999 a solicitor wrote to the Gardaí asking when the Book of Evidence would be served and saying “the delay in our receiving the Book of Evidence is prejudicing our client’s entitlement to prepare a proper defence to this action”. On the 4th January, 2000 the solicitor wrote again enquiring about the Book of Evidence and asking that it be served before the next court date, the 17th January “to allow us time to consider same”. The Book of Evidence was served on the 17th January, 2000. The applicant’s solicitor discussed the contents of the book with counsel who advised that he have the motorcycle examined by Dr. Mark Jordan, Consulting Engineer. On the 1st February the applicant’s solicitor telephoned the investigating garda who told him that he was not aware of the whereabouts of the motorcycle, but said that he would make contact with the deceased’s family to ascertain its whereabouts. On the 7th February, 2000 the solicitor faxed the Garda Superintendent saying that their expert would be in Galway the following day and asking about the whereabouts of the motorcycle. In answer to this he received a fax from the investigating guards, which has already been quoted, saying that the bike had been broken up for parts.

Points of Contrast.

11. From the above summary it will be seen that a major point of contrast between the cases relates to the date on which access to the vehicle in question was requested. In the case of Mr. Bowes this was a few days prior to the date fixed for trial, and some twenty months after proceedings commenced. In the case of Ms. McGrath it was within days of the service of the Book of Evidence upon her. It also appears that on the date when the summons was first returnable it was indicated on behalf of Ms. McGrath that, depending on the contents of the Book of Evidence, the defence might wish to have the motorcycle examined.

12. There is also a marked contrast between the two cases in relation to the time at which the Gardaí parted with possession of the vehicle in question. In Mr. Bowes case, this occurred a year after his arrest. In Ms. McGrath’s case it occurred some two and a half months before the proceedings against her were instituted.

13. The cases may also be contrasted in terms of the degree of relevance which an examination of the respective vehicles might be thought to have in the respective cases. In Mr. Bowes case, the prosecution does not turn on the car itself, nor on the manner of its driving, but on the proposition that drugs were found in its boot immediately after the defendant had been driving it. There is no dispute, in these proceedings, that the applicant was in fact in the car: his solicitor’s last fax of the 16th November, 2001 refers to “the car in which our client was travelling at the time of his arrest”.

14. On the other hand, the case against Ms. McGrath relates directly to the manner of her driving in connection with the collision which occurred between her vehicle and the motorcycle in question. No-one witnessed the incident. The case against her consists of certain statements attributed to her, allegedly made to a woman and a child in a nearby house as to her speed, and an inference which the prosecution will seek to have drawn from the position of debris on the road. The applicant was described as being “in a state of shock” by the garda who attended the scene of the accident and was subsequently described by a psychologist to whom she was referred as suffering from post traumatic distress syndrome and as having difficulty in remembering the sequence of events which had happened. The consultant engineer retained on her behalf, Dr. Jordan, says that as a result of not having been able to examine the motorcycle he is “unable to ascertain the collision configuration i.e. the relative directions of movement of the vehicles.”. He says that this would have been helpful in providing evidence of where on the roadway the collision took place. He says that he is unable to deduce the closing impact speeds of the two vehicles because the damage profiles have been destroyed. He is unable to check instrumentation and equipment settings for clues as to the speed of the motorcycle prior to the accident and is unable to satisfactorily eliminate any mechanical condition of the motorcycle which might have contributed to the cause of the collision. He says that, for example, he was unable “to eliminate that the motorcyclist may have been dazzled or blinded by the sun’s reflections in his mirror”. In reply, the garda public service vehicle inspector says that he “very much doubts” if an examination of the motorcycle would have thrown light on these matters.

The law.

15. In Murphy v. DPP [1989] ILRM 71 Lynch J. said:-

      “The authorities establish that evidence relevant to guilt or innocence must so far as 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”.
16. In that case, the applicant had been charged with stealing a car and driving offences. The car was in the possession of the Gardaí and the applicant’s solicitor had in a timely manner indicated his wish to examine and test the car, notably for fingerprint evidence. However, the Gardaí parted with the car without either examining it forensically themselves or notifying the applicant’s solicitor that they intended to part with it. This was held in the circumstances to amount to a breach of fair procedures. Lynch J. held:-
      “It may well be that nothing would have been discovered by the requested forensic inspection, but the applicant has been deprived of the reasonable possibility of rebutting the evidence 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”.
17. This case has been followed and cited with approval in judgments of this Court on a number of occasions, including the recent cases of Braddish v. DPP [2001] 3 IR 127 and Dunne v. DPP [2002] 2 ILRM 241.

18. The line of authority which led Lynch J. to the conclusions stated above goes back at least to the decision of Palles C.B. in Dillon v. O’Brien and Davis [1887] 20 LR IR 300. This case has been cited with approval and respect on a number of occasions, both in this country and in the United Kingdom. It was an action for detinue of certain articles which policemen had taken possession of at the time of an arrest. The defendant said that the items were required as evidence to support certain charges. Palles C.B. upheld this plea saying:-

      “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. His custody is of no value if the law is powerless to prevent the abstraction or destruction of this evidence without which a trial would be no more than an empty form. But if there be a right to production or preservation of this evidence, I cannot see how it can be enforced otherwise than by capture”.
19. Commenting on this passage in Dunne, at p. 259, I said that the right to retain articles of evidential significance gave rise to a duty to do so in an appropriate case, for the reasons set out in the report. In particular “[T]he right does not exist in a vacuum, but for a purpose. That purpose relates to the due administration of justice. It follows from this that it must be exercised in an impartial manner and not for the sole advantage of one side, or recklessly. I believe that these conclusions follow inexorcibly from the judgment of Palles C.B.”.

Submissions.

20. On the hearing of these appeals the general principles set out in the cases cited were not challenged. The respondent sought however to gloss them in the ways set out below. In particular he stressed certain propositions which I believe to be already well established in the jurisprudence and submitted that the facts of the present cases did not warrant interference by way of judicial review. He also emphasized the responsibility of a trial judge to ensure a fair trial.

21. The respondent emphasised that the duty to preserve evidence was not an absolute one. The applicants, the respondent contended, are not entitled to restrain the prosecutions against them simply by reason of the fact that the guards were at some stage in possession of articles that might have been of evidential value, but have parted with such possession.

22. I have no doubt that this submission is correct, and indeed obvious. In Braddish, the relevant item – a video tape showing the crime being committed – was of very direct and obvious relevance. At p. 15 of the report it is said:-

      “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 Murray 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”.
23. In Dunne it is said:-
      “The emphasis, which is quite explicit both in Braddish and in this judgment, on the need for the obligation to seek out, and indeed to preserve, evidence to be reasonably interpreted requires, I hope, that no remote, theoretical or fanciful possibility will lead to the prohibition of a trial. The exercise of [this] jurisdiction must be careful and realistic. There is also a responsibility on a defendant’s advisers, with their special knowledge and information, to request material thought by them to be relevant”.
24. The respondent built on his submission that not every failure to preserve evidence should lead to a restraint on prosecution and said that the accused person must make out a case, on the balance of probabilities, that there is a real or serious risk that he will not have a fair trial as a result of a failure to preserve that material. He then says that this risk must be evaluated in the context of the presumption that criminal procedures are conducted in accordance with constitutional requirements and norms. Elsewhere, the respondent refers to the duty of the trial judge to ensure that the trial is properly and fairly conducted.

25. These substantitive themes in the respondent’s submissions all relate to the criteria for restraining the further prosecution of a criminal case. The respondent adopts what was described in Z v. DPP [1994] 2 IR 476 at 506 as the “general principle” applying to these applications as follows:-

      “[The] onus of proof which an accused must discharge when he 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”.
26. The respondent also emphasised a passage later in the same judgment where Finlay C.J. said, at p. 507:-
      “An onus to establish a real risk of an unfair trial… necessarily and inevitably means an unfair trial which cannot be avoided by appropriate rulings and directions on the part of the trial judge. The risk is a real one but the unfairness of trial must be an unavoidable unfairness of trial”.
27. Based on these and other authorities to the same effect, the respondent submitted that applications such as these should not be viewed “as a species of disciplinary tribunal over the conduct of investigations”.

28. I entirely agree that the judgment of Finlay C.J. cited by the respondent correctly expresses the criteria to be met on applications such as the present. It is also manifestly true that the focus in any such application must be on the fairness of the eventual trial, and not on the discovery of shortcomings in the investigative process except insofar as they impact on the prospects of a fair trial. Indeed, neither applicant argued against any of these propositions, or submitted that any lower criterion than that formulated by Finlay C. J. should be applied. Nor did either oppose the proposition that the scope for a trial judge by suitable rulings of law or instructions to a jury to avoid unfairness in a trial should be considered in assessing whether there is a real risk that the defendant would not obtain a fair trial.

29. However, where evidence has been lost to a defendant by reason of delay in prosecuting or loss or destruction by the State, one can only speculate about what its contents might have been. It is extremely difficult, perhaps impossible, to devise a basis on which this entirely speculative element can be incorporated, fairly to both sides, in a trial based on existing evidence. I have considered this difficulty in a number of cases including P’OC v. DPP [2000] 3 I.R. 87 and Dunne v. DPP [2002] 2 I.L.R.M 241.

30. The respondent also relied on the English case of R (Ebrahim) v. Feltham Magistrate’s Court [2001] 1 All E.R. 831, 1 WLR 1293. This case was very fully dealt with in Dunne and rejected as an expression of the principles to be applied in this jurisdiction. I do not intend to repeat that discussion here. However, in a portion of the judgment in that case not mentioned on the hearing of this appeal, the English Divisional Court did express a view about the manner in which a trial court might approach the problem of missing evidence. At p. 1301-1302 of the report it is envisaged that if a trial continues despite missing evidence it does so “leaving the defendant to seek to persuade the jury or magistrates not to convict because evidence which might otherwise have been available was not before the court through no fault of his”.

31. In Dunne, I query whether that state of affairs, in itself, would be an appropriate basis for an acquittal, and also whether a court or jury can be invited to speculate on what evidence which is not before it might have been, if only it had been obtained or preserved.

32. Unless one accepts that missing evidence may indeed be the basis of an acquittal, it is hard to see what useful form a trial judge’s direction on the topic could take. The only exception might be in a case where it was contended that evidence had been maliciously lost or ignored: if that were accepted it might undermine the prosecution’s case in general. But that is not the position here, or in the great majority of missing evidence cases. Accordingly, if reliance on the curative effect of a trial judge’s charge is to be convincing as a reason for denying relief, I would think it necessary that a formulation of the precise circumstances in which it might benefit the defence be attempted.

33. The submissions of the respondent at least hinted at a more general criticism of the ratio of Braddish. This is based on a misinterpretation of it as extending to the proposition that a trial may be prohibited on the sole basis that there was some shortcoming in the investigation so that the hearing of the application is, in the words of the respondent’s submissions “a species of disciplinary tribunal over the conduct of investigations”. This view is simply not maintainable on the basis of the judgments in Braddish, or any other case. In Dunne the fault based test adopted by the English Divisional Court in Ebrahim was specifically rejected and it was said at p. 257:-

      “The ‘real risk of an unfair trial’ [test], on the other hand, does not necessarily involve blaming any person. The main focus in these applications should be on the fairness of the intended trial without the missing evidence, and not on whose fault it is that the evidence is missing, and what the degree of that fault may be. The latter factors, however, are not always irrelevant”.
34. Later in my judgment in that case I said:-
      “Like Fennelly J., I do not consider that a trial should be prohibited merely because the police can be shown in a particular respect to have fallen short [of the proper standards of investigation]”.
35. I added “There is also responsibility on a defendant’s advisers, with their special knowledge and information, to request material thought by them to be relevant”.

36. The respondent also relied on certain cases, which it was suggested, mandate a different approach to that taken in Braddish and Dunne. These are Nolan v. DPP [1994] 3 IR 326, Dutton v. DPP (Supreme Court, unreported 14th July, 1998) and Mitchell v. DPP [2000] 2 ILRM 396.

37. In Nolan the defendant had been charged with introducing turpentine into the bodies of cows so as to frustrate the accuracy of a bovine tuberculosis test. The evidence on this charge consisted of tests establishing the presence of turpentine. Five days after the tests were taken the carcasses of the relevant animals were destroyed. A few days later again the applicant asked that the carcasses be not destroyed so that he could take samples if so advised. This Court held:-

      “The case advanced on behalf of the applicant amounts in effect to saying that the trial would be unfair because the State is in a position to give evidence of the tests carried out on the samples taken from the carcasses whereas the applicant has no similar evidence available to him as the carcasses were not preserved by the Department, and no samples were made available to the applicant. The real issue is accordingly whether in the particular circumstances the State should be entitled to give evidence of the result of the tests carried out on the samples, and that is essentially a matter to be decided by the District Court Judge who tries the case, after he has heard all the evidence or, if the charge should be tried on indictment, by the judge presiding over the trial. It is not something which either the High Court or this Court should be asked to determine since it involves determining disputed issues of fact.

      The District Court Judge or the judge presiding over the trial would be obliged to observe fair procedures and it would be a matter for him to decide, having heard all the evidence in the case, whether the admission of the evidence of the results or the tests is consistent with such procedures”.

38. The situation so described seems to me to be different from that obtaining in either of the present cases. The applicants are not asking this Court to determine the issue of admissibility of prosecution evidence. They are asserting that they themselves have been deprived of the reasonable possibility of rebutting the evidence proffered against them. In Dunne, I discussed at some length the reasons why issues relating to the loss or destruction of possibly valuable evidence requires to be dealt with by way of judicial review.

39. Mitchell was a case relating to video evidence and turned entirely on its facts. Geoghegan J. stated that counsel for the applicant in that case “had a good point but the wrong case in which to succeed on that point”. He went on to say that “there would be cases where the gardaí, in the interests of justice and fair procedures, would quite definitely be obliged to inform an accused person of the existence of video evidence and notify him of an intention to destroy that video evidence [I]t may be necessary to give such notice where tapes have been taken in circumstances where it was genuinely considered that such tapes might be relevant to the criminal proceedings. There are circumstances where there might be a duty to give such notification before the tapes were destroyed and there would always be such a duty if the gardaí were asked to keep such a tape in accordance with the principles set out in the decision of Lynch J. in Murphy v. DPP [1989] I.L.R.M. 71”.

40. Dutton was an ex tempore judgment principally concerned with the fact that the application for leave to seek judicial review was made almost on the eve of the trial. I entirely agree with what is said there in that regard.

Application of the principles.

41. It appears to me that the application of the principles set out above to the two cases before us lead to different results. This conclusion may be analysed under a number of headings.

Real risk of an unfair trial.

42. In Ms. McGrath’s case, it appears to me that any person and certainly any lawyer apprised of the largely circumstantial nature of the prosecution case from reading the Book of Evidence would consider a technical examination of the motorcycle on behalf of the defendant not merely reasonable but necessary and important. This was the immediate view of counsel consulted on her behalf and its correctness is emphasised by the Affidavit of Dr. Jordan, quoted above. This view is not at all qualified by the fact that the Garda Vehicle Inspector doubts that the information hoped for by Dr. Jordan from an examination of the motorbike would in fact be available. It is sufficient that an examination would have offered what Lynch J. called “ the reasonable possibility of rebutting the evidence proffered against him”.

43. In Mr. Bowes case, by contrast, the notion of seeking a technical examination of the vehicle was a very belated one indeed. The nature of the case against him was immediately apparent: there was a quantity of heroin in the boot of a car which he was driving. He had the benefit of legal advice from the day of his arrest but no question of technical examination arose until virtually the eve of the trial. This is not surprising having regard to what seems to me to be the negligible possibility such examination would offer of rebutting the case against him. It is alleged that there is an absence of technical evidence regarding the layout of the boot and the car, but this is easily obtainable from an examination of any vehicle of the same make and model. It is also submitted that there is an absence of evidence regarding fingerprints other than the accused’s found around the boot area of the car, which would point to access by a third party to that area. I have already quoted the extract from Dunne which refers to the obligation of the defendant’s advisers to seek materials which they consider to be relevant. If indeed Mr. Bowes defence is going to be that some third party placed the drugs in the boot of the relevant car, presumably without his knowledge, that is a matter which only he could know and he would presumably have mentioned this to his legal advisers. If, in turn, those advisers felt that an independent examination for fingerprints was required they would presumably have requested it. I mention these factors, not on the basis that the applicant may be disqualified on the grounds of delay but on the more basic topic of whether there existed a real loss of an opportunity to rebut the prosecution’s case. I do not believe that any such loss occurred. The fact is that the case against Mr. Bowes is based on the finding of the drugs in the car of which he was the driver and an alleged oral statement immediately after the finding, which, if admitted and accepted by the jury, might be thought to demonstrate knowledge of the contents of the boot. I cannot see what any forensic examination could do to rebut this evidence and therefore conclude that Mr. Bowes application falls at this first hurdle and need not be discussed further.

The alleged lateness of demand

44. The dominant feature of Ms. McGrath’s case is that the guards parted with possession of the motorcycle some nine or ten weeks before the proceedings against her were commenced. Shortly after service of the summons the solicitor requested, inter alia, sight of the forensic report on the motorcycle and was told that this would be included in the Book of Evidence. This exchange occurred before the return date of the summons. On that date the solicitor requested early service of the Book of Evidence saying that he required to study it and perhaps (presumably depending on its contents), to have a forensic examination. When the Book of Evidence was served he considered it with counsel and very quickly sought to make arrangements for an inspection. He was told that the motorcycle had been broken up for parts. From the information which subsequently became available it appears that the motorcycle was still intact at the time the solicitor indicated in court that examination of it might be required, but no step was taken to preserve it. In these circumstances it does not appear to me that Ms. McGrath or her solicitor can be accused of tardiness. It is very difficult to regard time as running against her before the proceedings were commenced. Her only entitlement to have the motorcycle examined arises from her right to a fair trial, which hardly arises until a decision to prosecute is taken and communicated. At the time the Gardaí parted with the possession of the motorcycle, they did not think it necessary to give notice of their intention to do so to Ms. McGrath, presumably because they did not know that she would be prosecuted and therefore did not consider that she was entitled to notice.

Opportunity to examine.

45. The respondent said that the engineer should have examined what remained of the motorcycle in February, 2000. There is a conflict of evidence on Affidavit in relation to what the engineer was told about the motorcycle at that time. He says he was told by the garage man that “the motorcycle had been stripped for parts and there was only some of it left”. He then asked if the motorcycle could be reassembled and was told that the garage did not know where the parts were. The garage man says that he told the engineer that the engine and tyres had been removed. There is a marked similarity between what the solicitor was told in writing by the Gardaí: “This bike has been broken up for parts” and what the engineer says he was told by the garage “The motorcycle had been stripped for parts”. It appears that the information must have come from the same source i.e. the garage. The engineer says that there was no point in inspecting the motorcycle on the basis of what he was told about its condition. Although the Garda Vehicle Inspector takes issue with other aspects of the engineer’s Affidavit, he does not contradict this assertion.

46. The fundamental fact is that the Gardaí, having themselves thought it important to take possession of the motorcycle and have it examined for their purposes should have retained the vehicle until conclusion of any proceedings. Instead, they parted with it before they knew whether there would be any proceedings or not. The rate of deconstruction of the bike after that happened was a matter of chance. If, by chance, it had been intact in February, 2000 Ms. McGrath would have no legal cause of complaint about the fact that the Gardaí had parted with it. As it is, however, there is no contradiction of Dr. Jordan’s evidence as to the pointlessness of examination and the position has not, in my view, been retrieved.

Insurers examination.

47. Finally, it was submitted on behalf of the respondent that the fact that the motorcycle had been examined in early July, 2000, by the PMPA, Ms. McGrath’s insurers, cures any defect. The Gardaí knew that this had occurred because they came into possession of a letter from Ms. Rita Fallon of the Claims Department of Guardian PMPA. It is quite clear from this that the vehicle was examined by an assessor for the purpose of estimating its salvage value, which was £300.00. There is no suggestion that there was any other purpose in the examination, that Ms. McGrath knew of it, or that the person conducting it was a highly qualified consultant forensic engineer such as Dr. Jordan, who is a chartered engineer and a doctor of engineering. Still more significantly, this inspection took place about three months before the proceedings were commenced and about six months before the nature of the prosecution’s case was revealed after service of the Book of Evidence. It is difficult to see how it could have been of use in rebutting the case made against Ms. McGrath.

Conclusion.

48. Accordingly, I conclude that Ms. McGrath has suffered the loss of a reasonable prospect of obtaining evidence to rebut the case made against her by reason of the Gardaí having parted with the motorcycle. I do not consider that, by delay or otherwise, she has disentitled herself to relief. This leads to the conclusion that the respondent’s further prosecution of her should be restrained. I am conscious of the fact that this in turn would mean that serious allegations, arising out of an accident which resulted in fatality, will not be litigated to a conclusion, because of the risk of unfairness. Dangerous driving causing death is an offence whose seriousness has been underlined by the fairly recent increase of the maximum penalty to ten years imprisonment. Experience shows that it is almost unique, amongst offences not requiring a specific intent, in carrying a real possibility of a significant custodial sentence for a convicted person of good character. One would hope that its very seriousness would, in future cases, ensure that items of manifest evidential potential are properly preserved. These two cases tend to indicate that there may be a need for a more cohesive practice among the Guards in the preservation or disposal of pre-trial of evidence which is potentially relevant to the defence in criminal proceedings. The adoption and observance of suitable guidelines might assist in avoiding pre-trial litigation of this nature.

Conclusion.

49. Accordingly, in Ms. McGrath’s case I would set aside the order of the High Court and substitute an order restraining the respondent from further prosecuting her. In Mr. Bowes case I would affirm the order of the High Court.











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