Supreme Court dismisses appeal where applicant failed to show real risk of unfair trial regarding delayed evidence disclosure.

THE SUPREME COURT

105/02

Geoghegan J.

Fennelly J.

McCracken J.

Between:

Gavin McKeown

Applicant / Appellant

AND

The Judges of the Dublin District Court And the Director of Public Prosecutions

Respondents

Judgment of Mr Justice McCracken delivered the 9th day of April 2003

On 29th April, 2002 the applicant applied to Murphy J. for leave to apply by way of an application for judicial review for:-

“1. An Order of Prohibition by way of an application for judicial review restraining the first named respondents from hearing the

trial of the applicant in proceedings entitled Bill No. DU 1215/01 The People of Ireland (at the suit of the Director of Public

Prosecutions) –v- Gavin McKeown

2. An injunction by way of an application for judicial review restraining the second named respondent from prosecuting the

applicant in proceedings entitled Bill No. DU 1215/01 The People of Ireland (at the suit of the Director of Public Prosecutions) –

v- Gavin McKeown.”

The applicant is charged on indictment with two counts, one of assaulting Garda Conlon causing him harm and one of unauthorised

use of a mechanically propelled vehicle, the property of one Mark Cronin. The background to the charges according to the Book of

Evidence was that Mr. Cronin’s vehicle had been reported as stolen. On 8th April, 2001 Garda Conlon and a colleague in a patrol car

saw the vehicle in a car park and it is alleged that they observed the applicant and a co-accused getting out of the vehicle, with the

applicant getting out of the drivers seat. When they saw the two Gardaí they attempted to run away, but were trapped between the

two Gardaí. It is alleged that the applicant then assaulted Garda Conlon and that in the course of the assault the applicant hit Garda

Conlon with a red petrol can on the head. Both the applicant and his co-accused were arrested and duly charged. They were released

on bail to appear before the District Court the next day, namely 9th April, 2001, and on that occasion the applicant met with his

solicitor.

On 14th June, 2001 the charges against the applicant were struck out in the District Court as there were no directions from the

second named respondent. The applicant was recharged on 4th October, 2001.

On 12th February, 2002 the applicant’s solicitor wrote to the second named respondent seeking to be provided with:-

“1. Previous convictions of our client and co-accused if any

2. Results of any forensic tests carried out on the alleged stolen vehicle, the whereabouts of the car now

3. The Book of Evidence refers to an exhibit of a petrol can on page 10, can we see the sight of such can.”

In response to this request it was disclosed that the vehicle had been returned to its owner the day after the alleged incident and

that no forensic tests had been carried out to it. It also transpired that later in the day the two Gardaí involved went back to the

scene of the incident but did not find the petrol can. Ultimately, on 4th March, 2002, Garda Conlon telephoned Mr. Cronin asking

whether the petrol can had ended up in his car, and Mr. Cronin said that it had, and he had put it in his shed. It was ultimately

collected by the Gardaí from Mr. Cronin on 11th March, 2002.

In seeking the Orders of Prohibition and Injunction in the present proceedings the applicant alleges that his right to a fair trial has

been violated by the failure of the Gardaí to preserve, examine (either visually or forensically) or make available to the applicant the

motor vehicle and also by failing to remove the petrol can from the motor vehicle and retain it.

There have been a number of recent cases in which the obligations of the Gardaí in relation to the preservation of potential evidence

has been considered. The first of these is Murphy –v- Director of Public Prosecutions (1989) ILRM 71. As in the present case, this

concerned charges relating to a stolen car, which in fact was wrecked in the incident. Unlike the present case, however, the

applicant’s solicitors had requested access to the car less the five weeks after the initial charges, and while the car was in the

possession of the Gardaí. Initially, the Gardaí informed the applicant’s solicitor that the car was available for inspection, but a week

later they allowed an insurance company to remove the vehicle, before it had been examined on behalf of the applicant or indeed by

the Gardaí themselves. Lynch J. granted an injunction restraining the Director of Public Prosecutions from proceeding. While that was

clearly a much stronger case than the present case, the principles stated by Lynch J. are set out in the headnote as follows:-

“(1) Evidence relevant to guilt or innocence must, so far as is necessary and practicable be kept until the conclusion of the

trial. This principle also applies to the preservation of articles which may give rise to the reasonable possibility of securing

relevant evidence. Dillon –v- O’Brien and Davies (1887) 20 L.R. 300 approved.

(2) An accused person must be afforded every reasonable opportunity to inspect all material evidence which is under the

control and power of the prosecuting authorities in order adequately to prepare his defence.

(3) The Gardaí ought not to have parted with the 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 to the insurance company.

(4) The Gardaí’s actions in the circumstances amounted to a breach of the rule of fair procedures in that they deprived the

applicant of the reasonable possibility of rebutting the evidence proferred against him. State (Healy) –v- Donohoe (1976) I.R.

300 applied.”

This was followed by Rogers –v- Director of Public Prosecutions (1992) ILRM 695, which also concerned a motor vehicle. In that case

the Gardaí had in fact carried out a forensic examination and sought fingerprint evidence, but with a negative result. The vehicle was

then returned to its owner, and some two and a half months later the applicant’s solicitors sought an inspection of the vehicle.

O’Hanlon J. refused to grant an injunction and said at page 698:-

“I think that some consideration has to be given to the owner of a motor car which has been stolen or unlawfully taken;

similarly in relation to other property the subject of criminal charges where deprivation of possession thereof will seriously

prejudice or inconvenience the innocent owner thereof. In relation to such property I would hold that any forensic

examination, whether by the Gardaí or on behalf of an accused person, should be sought and should take place within a

reasonable time, having regard to all the circumstances of the case, so that the property can then be returned as

expeditiously as possible to its true owner.

In the present case, having regard to the fact that a forensic examination was carried out promptly by the Gardaí and no

mention was made of a forensic examination being sought by the applicant for two and a half months after he had been

charged with offences concerning the driving of the car, I have come to the conclusion that there was no breach of fair

procedure such as would justify the court in halting the prosecution now pending against the applicant.”

The issue came before the Supreme Court in Braddish –v- The Director of Public Prosecutions (2001) 3 I.R. 127. This case concerned

a video tape which was alleged to have shown the accused committing a robbery. The applicant was not in fact charged with the

robbery for some nine months after it is alleged to have occurred, and in court on the day he was charged his advisors sought the

video tape. Hardiman J. said at page 133:-

“This video tape was real evidence and the Gardaí were not entitled to dispose of it before the trial. It is now admitted that

they should not have done so. Lest, however, the sentence already quoted from the State Solicitor’s letter, and which can

only have been based on his instructions from the Gardaí, can be read to suggest that because the prosecution was based

wholly on an alleged confession, other items of evidence can be destroyed or rendered unavailable. I wish to state

emphatically that this is not so. It is the duty of the Gardaí, arising from their unique investigative role, to seek out and

preserve all evidence having a bearing or potential bearing on the issue of guilt or innocence. This is so whether the

prosecution proposes to rely on the evidence or not, and regardless of whether it assists the case the prosecution is

advancing or not.”

Later in his judgment Hardiman J. somewhat tempered these strong views when he said at page 135:-

“The foregoing remarks arise in the specific context of this case and the arguments raised in it. 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, 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 manpower or resources in an exhaustive search for every conceivable kind of evidence. The

duty must be interpreted realistically on the facts of each case.”

This case was followed by Dunne –v- Director of Public Prosecutions (2002) 2 ILRM 241, which again concerned a video tape. In this

case, however, it was not clear whether the Gardaí ever had possession of the video tape, although they were certainly aware that

there was video surveillance of the premises on which the applicant is alleged to have committed an offence. The majority judgment

in this case was again given by Hardiman J., who emphasized that it was the duty of the Gardaí not only to preserve evidence but to

seek out material evidence. He said at page 259:-

“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. But we are not dealing with anything of that sort here. On the evidence in the present

case it is overwhelmingly likely that a video camera recorded the actual conduct of this robbery by its unmasked

perpetrators. In those circumstances it appears to be not a possibility or even a near probability, but a near certainty, that

the video tape would indeed constitute evidence bearing vitally on the question of guilt or innocence.”

In his dissenting judgment Fennelly J. took the view that the failure to seek out evidence was not in itself sufficient to meet the test

of a real and serious risk to a fair trial. However, he did agree that if it had been established in that case that the video had in fact

been given to the Gardaí, but not retained by them, then the trial should be prohibited. To apply that to the present case, the car

was quite clearly in the possession of the Gardaí, and as the petrol can was apparently in the car, it was at least theoretically in the

possession of the Gardaí. I find it very strange that the Gardaí, having actually gone back to the scene of the incident to try to find

the petrol can, apparently did not even search the car before returning it to its owner, for had they done so, they would have found

the petrol can.

Most recently, the issue came before this court in two cases which were heard one after the other and in which a common judgment

was given by Hardiman J. on 6th February, 2003, which is still on unreported. Both cases concerned motor vehicles. In Bowes –v-

Director of Public Prosecutions the applicant was charged with possession of heroin for sale or supply. The case against him is that he

was stopped by the Gardaí while driving a motor car, the car was searched and a substantial quantity of heroin was found in the

boot. The Gardaí took possession of the car and the applicant was charged. He appeared a number of times in the District Court

between April 2000 and September 2000, the charges were subsequently struck out and the applicant was recharged on 26th April,

2001 and the Book of Evidence served on 17th May, 2001. This disclosed for the first time that the Gardaí had in fact carried out a

forensic examination of the car and indeed found a single fingerprint of the applicant in the car. In due course the applicant was sent

forward for trial, but it was not until the week before the trial in November 2001 that the applicant’s solicitor sought details in relation

to the car. At this stage the car had in fact been removed from Garda custody and had been scraped.

The case of McGrath –v- Director of Public Prosecutions was somewhat different. The applicant was charged with dangerous driving

causing death having been involved in a traffic accident in which a motorcyclist was killed. Before any summons was issued against

her the Gardaí, at the request of the deceased’s family, had released the motorcycle, and it was ultimately broken up for parts. On

20th October, 1999, less than a month after the applicant had been charged, her solicitor sought a motor forensic report from the

Gardaí. The response was that the information requested would be contained in the Book of Evidence, which had not then been

served. The Book of Evidence was eventually served on 17th January, 2000, and on 1st February the applicant’s solicitor sought

information from the Gardaí as to the whereabouts of the motorcycle. The applicant was then told that it had been broken up for

spare parts.

It was strongly emphasised in the judgment in that case that the issue was not whether the Gardaí were in some way at fault in

either not finding or not retaining possible evidential material, but rather whether the Gardaí’s failure, whether it be negligent or

innocent, in some way prejudiced the applicant in conducting his defence. I entirely agree with this approach. The jurisdiction of the

High Court to prohibit a trial is based on the basic and constitutional right of an accused to a fair trial. It is the duty of the court to

keep a reasonable balance between the obligation of the prosecution to present as strong a case as possible against wrong doers,

and the right of an accused to defend himself and in so doing, by all legal means, to attempt to show that there may be a reasonable

doubt as to his guilt or innocence. The Gardaí are, of course, independent of both the Director of Public Prosecutions and the

accused. That they must act independently seems to me to be part of the foundation of our system of justice, and I have no doubt

that there is an obligation on the Gardaí to disclose to both the prosecution and the defence all matters which might be of assistance

either to the prosecution or to the defence. It should be noted that, in indictable offences such as this, it is for the Director of Public

Prosecutions and not for the Gardaí to decide what evidence will be used against an accused.

I fully accept that these principles must be tempered by the application of the concept of reasonableness. There obviously are limits

to the lengths to which the Gardaí must go in either seeking out or preserving evidence. To that extend each case must be judged on

its own facts, which indeed is emphasised by the outcome of the Bowes and McGrath cases, where the prosecution against Ms.

McGrath was prohibited, while that against Mr. Bowes was allowed to continue. The distinction in that case was made on the basis of

whether any possible evidence that might have been obtained could have been of use in rebutting the case made against each of the

applicants.

To return to the facts of the present case, the motor car, indeed with the petrol can in it, was returned to the owner of the motor

car the day after the incident without any forensic examination having taken place. While the Gardaí may have been satisfied in their

own minds that their belief that they saw the applicant getting out of a stolen car in the early hours of the morning, attempting to

leave to scene and ultimately assaulting the Gardaí was sufficient to obtain a conviction, I would strongly emphasise that that is not

the test. The question is not whether the Gardaí might want to use any available evidence, or might wish to assist the Director of

Public Prosecutions by producing it, but rather whether this evidence, even if it is not to be used by the prosecution, could be of

assistance to the defence. If a person is accused of driving a stolen motor car, quite clearly that car is often a vital piece of

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

person or his advisors where reasonably practicable before being returned to the owner. Regard must be had to the practicalities, and

in particular to the rights of the unfortunate owner of a stolen car who obviously is entitled to have it returned to him as quickly as

possible. These practicalities must be judged on the facts of each case. Having regard to the authorities cited the proper procedure

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

notice has been given to the accused person or his legal advisors of the intention to return the evidence and a reasonable time given

for an accused or his advisors either to examine the evidence or to dispense with the examination. That was not done in the present

case, but it is unnecessary to decide whether the Gardaí were at fault in the circumstances with which this case is concerned.

One must also look at the actions of the applicant and his advisors. The applicant met his solicitor in court the day after the incident

and no doubt on a number of other occasions. He was ultimately returned for trial some six months after the incident and served with

the Book of Evidence. It was not for a further four months that his advisors sought information regarding forensic tests on the vehicle

and as to its whereabouts. Just as there is an obligation on the Gardaí to make evidence available to an accused, there is also an

obligation on the accused to seek such evidence. The accused and his advisors knew on the day after the incident that the car,

which they knew to be the property of a third party, was in the hands of the Gardaí, and presumably would have to be returned to its

owner. They made no request in relation to it for some ten months, at a time when they must have known it was no longer retained

by the Gardaí.

As was emphasised in the Bowes and McGrath cases, the test is not a question of blame. The test is whether the applicant has been

deprived of a real opportunity to rebut the case against him. Even if the Gardaí had kept the motor car and the can for some ten

months after the incident, I think it is highly improbable that any real evidence of benefit to the applicant would have emerged.

Certainly, there could have been no such evidence available after the car had been used by its owner during that period. Similar

comments must apply to the petrol can. These, unlike the video tapes which were the subject matter of several of the cases, would

require a forensic examination to be carried out within a short time of the alleged crime if any useful evidence is to be obtained.

Whether there has been fault on the part of the Gardaí or not, the only basis for this application must be that the applicant has been

prejudiced in his right to a fair trial. We do not know what the applicant’s defence may be, but, as was commented by Hardiman J. in

the Bowes case, if the applicant’s advisors had felt that an independent examination for fingerprints was required, they would

presumably have requested it. The lack of a fingerprint examination is the only example of prejudice alleged by the applicant. In my

view the applicant has not made out an arguable case that there is a real risk of an unfair trial in the present case. I would dismiss

the appeal, and affirm the Order of the High Court refusing leave to apply for judicial review.