Supreme Court dismisses appeal where lost fingerprint evidence creates unfair trial risk but appellant failed to prove no prejudice.

[2006] IESC 11

THE SUPREME COURT

Appeal No. 315/2003

Murray C.J.

Hardiman J.

Geoghegan J.

Fennelly J.

Kearns J.

BETWEEN:-

BRENDAN MCFARLANE

APPLICANT/RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT/APPELLANT

AND

THE MEMBERS OF THE SPECIAL CRIMINAL COURT

RESPONDENTS

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

1. This case arises out of the abduction and false imprisonment of Mr. Don Tidey, a well known businessman, between the 24th

November, 1983, and the 16th December, 1983. Mr. Tidey was eventually rescued from the gang who had been holding him at the

hide-out where he had been held captive at Drumcronan Wood in County Leitrim. During the course of the shoot-out which occurred

on the day of his rescue garda recruit Gary Sheehan and army private Patrick Kelly were shot dead. The sequence of events over a

three week period without doubt involved crimes of the utmost gravity.

2. Amongst a large number of items found at the hide-out were a milk container, a plastic container and a cooking pot. It is part of

the State’s case that the applicant’s fingerprints were found on these items.

3. The applicant was not however arrested until January, 1998 for the various reasons set out in the affidavit of Chief Superintendent

Dermot Jennings sworn herein on the 5th April, 2000. This background history is more fully set out in the judgment of Hardiman J. and

need not be repeated here.

4. Following the arrest of the applicant in 1998, Mr. Maurice Boyle, formerly a Detective Sergeant in the Fingerprint Section of the

Garda Siochana who had retired in 1993, was requested to return to the Fingerprint Section in Garda Headquarters in Phoenix Park to

prepare a statement and recover the relevant exhibits particularly:-

(a) The NCF one litre milk carton marked “MB4, 8539/83”.

(b) The plastic container marked “MB15, 8539/83”.

(c) The cooking pot marked “MB20, 8539/83”.

5. However, as he deposes in his affidavit sworn herein on the 5th April, 2000, he found on arrival at Garda Headquarters that the

Fingerprint Section had been refurbished to accommodate the computerisation of fingerprints. The storage room in which the exhibits

had been held had become a library and a conference room. He states:-

“I was informed that the exhibits which had been held in the area had been relocated to the basement of the premises. I

then caused a complete thorough search of the Technical Bureau to be undertaken to include the basement area,

however this search proved negative and consequently I have not been able to retrieve the foregoing items”.

6. The importance of the obligation to preserve these items and keep them safely cannot be overstated. Indeed, that requirement is

acknowledged both implicitly in the affidavits filed on behalf of the appellant and expressly by appellant’s counsel on the hearing of

this appeal. It goes without saying that the items in question were items which could be easily kept and stored with minimal

inconvenience. One is not here dealing with some enormous object such as a building or a ship on the one hand or the carcass of a

dead animal on the other. Nor was there something in the nature of a vehicle involved where the owner might be pressing for its

return once a forensic examination had taken place. Furthermore, the items in question for many years provided the only available

evidence against the applicant in respect of his alleged involvement in the events of the 16th December, 1983. In and of themselves

however, they did not, in the view of Detective Superintendent John McElligott of the National Bureau of Criminal Investigation,

constitute sufficient evidence to commence proceedings against the applicant. Following the arrest of the applicant in this jurisdiction

in January, 1998, however, it is alleged that he made, in the course of a series of interviews, a verbal admission that he had been in

Drumcroman Wood during the period of Mr. Tidey’s imprisonment and the somewhat equivocal alleged admission that he “was prepared

for the worst”. This alleged admission, in conjunction with the fingerprint evidence, was then deemed sufficient to enable the pending

prosecution to be instigated. However, following the arrest of the applicant, the loss of these original items came to light, though

even the date of that discovery is not stated in any affidavit filed on behalf of the appellant. The only explanation offered for the loss

or disappearance of the items is that referred to above and, apart from affidavits from the three above-named police officers directed

to explaining delay, no case has been made out on affidavit by or on behalf of the appellant to address either (a) the manner in which

the prosecution now proposes to prove its case or (b) to rebut or seek to rebut the prejudice alleged to have been suffered by the

applicant, either by showing that the consequential possibility of an unfair trial arising from the loss of the items is, in the words of

Hardiman J in Dunne v DPP [2002] 2 I.R. 306, “remote, fanciful or theoretical” only, or, if it be real or substantial, how such prejudice

might be overcome. The only engagement of any sort with that issue is contained at para. 16 of the affidavit of Detective

Superintendent McElligott in which he states:-

“I further say and believe that should the applicant take issue with the absence of the three items upon which his

fingermark was found, this is a matter to be dealt with by the court of trial in the context of their assessing the evidence

against the applicant and the weight to be attached thereto. I say and believe that the mere absence of those items is

not such as should give rise to any entitlement to an order prohibiting his trial”.

7. In the affidavit sworn by Mr. James MacGuill on the 29th October, 1999, which grounded the application brought herein to restrain

the prosecution, Mr. MacGuill deposed as follows:-

“I say that a reading of the book of evidence discloses that the evidence proposed to be adduced against the applicant

primarily consists of fingerprints marked on domestic items which are alleged to have been retrieved and/or identified by

investigating gardai at the time of the alleged incidents in 1983. I say that certain items from which these marks were

allegedly taken are no longer in the custody of the investigating gardai and are, as such unavailable to my client for

inspection. I say that despite my repeated written requests for an explanation as to which such important exhibits are no

longer available; no explanation has ever been forthcoming. I beg to refer to such correspondence between myself and

the Office of the Chief State Solicitor, true copies of which pinned together and marked with the letter “C” I have signed

my name prior to the swearing hereof. As a result the applicant is not in a position to comprehensively independently

evaluate the alleged physical evidence in this case and has been so advised as of October, 1999 by an independent

expert retained on his behalf”.

8. It is apparent that neither side has directly engaged in addressing in any particularised fashion the implications for any proposed

trial of the loss of these original items. Due to the absence of any replying affidavits from the appellant addressed to the lost

evidence, some not insignificant time was taken up during the hearing of this appeal with inquiries addressed by members of the Court

to appellant’s counsel to ascertain how the forensic examination was carried out and the nature of the secondary evidence which

might still be available. It imposed on members of the Court the task, as the appeal progressed, of having to trawl forwards and

backwards through the Book of Evidence in an effort to find information which might shed some light on these issues. It was, in my

view, a very unsatisfactory state in which to leave the appellant’s response to this application, having regard to the gravity of the

case, the central importance of the missing evidence, and the requirement to address concerns which predictably arise when key

evidence has been lost.

9. I accept, of course, that in the ordinary way the onus of proof falls on an applicant seeking an order of prohibition to demonstrate

such prejudice as would give rise to a real risk of an unfair trial (Z v DPP [1994] 2 I.R. 476).

10. However, it seems to me that the applicant must be seen as starting from a position of considerable strength having regard to the

facts outlined above. His position is further strengthened by various pronouncements of this Court where important evidence has been

mislaid or lost, notably when the material is lost from garda custody.

11. In Braddish v DPP [2001] 3 I.R. 127 this Court was firmly of the view that evidence relevant to guilt or innocence must, so far as

was necessary and practicable, be kept until the conclusion of a trial. Further, in that case it was held that the Gardaí were under a

duty, 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. The Court stressed that this was so whether the prosecution proposed to rely on the evidence or not, and

regardless of whether it assisted its case or not. The material itself had to be preserved and disclosed, and any notes of records of it

could not be destroyed or rendered unavailable.

12. Braddish was a case where the Gardai had parted with possession of a video, having prepared photographic stills from the video

which allegedly showed a robbery in progress and permitted identification of the applicant. In the High Court Ó Caoimh J. observed

that if the prosecution were to rely on the photographic stills, a real problem would exist because the applicant would be deprived of

his opportunity of testing the evidence as the video tape was missing. While Ó Caoimh J. was reversed on appeal it was not for that

reason: indeed his reasoning on that issue was in no way faulted. Furthermore, the judgment of this court specifically notes that

when the trial of Mr Braddish -which preceded the judicial review – took place in the Circuit Court, Haugh J. excluded the stills on the

basis it was unfair to produce them when the video film from which they had been taken was not available and discharged the jury

from further considering the case.

13. Braddish is therefore important for various reasons in the context of the present case. Firstly, it emphasises the requirement to

preserve items which may be “useful” to the defence. It goes without saying, in my view, that the original items which have been lost

in this case can only be seen as falling into that category. However they are not merely items which are useful or evidentially

relevant. They constitute or contain the primary and central evidence in the case. Indeed this is conceded by Mr. Collins, counsel for

the respondent, who further accepted during the course of the hearing that the ability of the applicant to defend the case has been

impaired by the loss of these exhibits. Secondly, the judgment of Hardiman J in Braddish is authority for the proposition that

respondent cannot rely on the existence of an alleged admission by an accused to substitute for the obligations outlined above, a

view also expressed by Hardiman J in Dunne v DPP [2002] 2 I.R. 305 . Thirdly it shows that reliance by the prosecution on secondary

evidence (the stills in the Braddish case) may create a ‘real problem’ for an accused person who has been deprived of an opportunity

of examining the original exhibit.

14. This case goes a lot further in my view than a number of the video tape cases, where in some instances applications were

brought to court on the basis of a mere possibility that they might have contained material either inculpatory or exculpatory of the

accused. Thus, in Scully v DPP [2005] 1 I.R. 242, relief was refused for reasons which, inter alia, included the fact that the three

cameras covering a garage forecourt did not cover the area where a particular vehicle was parked and were, in any event, totally

ineffective in darkness. In other words, the respondent was able to and did demonstrate that no prejudice in fact arose or could arise

on the facts of the particular case.

15. Hardiman J. in the course of his judgment in Scully v DPP deprecated applications brought on theoretical or fanciful grounds stating

(at 252):-

“The fact is that the rationale of this application vanished after the undisputed facts in relation to the video surveillance

on the filling station at the time of the crime were revealed. This did not happen until quite close to the trial because the

applicant did not investigate the position any earlier. This, in turn, appears to me to indicate that the applicant was more

interested in tripping the investigators than in discovery of evidence: certainly he was constrained to continue his

application on the basis of a theoretical possibility only. Applications on this basis must be discountenanced in the interest

of the public right to prosecute, but also in the interest of the integrity of the jurisdiction, in a proper case, to restrain a

prosecution on the basis that significant evidence has been ignored or destroyed”.

16. These are sentiments with which I agree having myself expressed views to the same or even stronger effect in DPP v Scully in the

High Court and indeed in other cases such as Dunne v DPP (Unreported, High Court, 23rd March, 2001) and O’Callaghan v Judges of

Dublin Metropolitan District Court (Unreported, High Court, 20th May, 2004). Commonsense parameters of reasonable practicality

must govern any determination of the scope of the duty on the gardai when seeking out or preserving evidence and remote

possibilities arising from the loss of evidence should not be allowed to trip up the prosecution or justify stopping a trial from taking

place.

17. However, in Bowes and McGrath v DPP [2003] 2 I.R. 25, this Court prohibited a trial in the McGrath case in circumstances where

the applicant established that the Gardai had parted with a motor cycle which had been involved in an accident and had thereby

deprived the applicant of the possibility of an examination which might have offered the accused “the reasonable possibility” of

rebutting the evidence proffered against her. The Court in so deciding followed the decision of Lynch J in Murphy v DPP (1989) ILRN

71 where relief was also granted on the applicant’s assertion that the disposal of a motor car had deprived his fingerprint expert of an

opportunity of adducing possible scientific evidence which might have served a useful purpose. In that case the Gardai had disposed

of the vehicle without conducting a forensic examination although they knew the applicant wished to inspect the vehicle for that

purpose. Lynch J decided the case in favour of the applicant on fair procedures grounds but noted (at p.76):

“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”.

18. I think the instant case must also be approached on the basis that the Gardai were aware, or should have been aware, that the

applicant would require a similar expert inspection of the articles containing fingerprints. Indeed that must be seen as the very reason

for preserving the particular items, the Gardai having completed their own forensic examination of same. That the Gardai have a

particular responsibility in relation to evidence in their possession in such circumstances is beyond question. In considering the

appropriate standard to apply when considering the risk of an unfair trial arising from the loss of evidence which has been in the hands

of the prosecution, Fennelly J stated as follows in Dunne v DPP [2002] 2 I.R 306 at 342:

“The rationale of the decision of Lynch J. in Murphy v DPP [1989] I.L.R.M. 71 is that the gardai had evidence in their

possession which could possibly be of assistance to the accused. They could not be allowed to pass judgment on whether

it would, in fact, have assisted him. For that reason, it is correct to apply a standard based on possibility combined with

real and serious risk of unfairness. All this takes place in the context of a possible trial and it is of the greatest importance

that the courts ensure that the police force behaves with impeccable fairness in its handling of evidence.”

19. I do not distinguish between negligently losing and negligently parting with primary evidence in this context. That being so, I can

not see how this applicant is in any worse position than the various applicants in the cited cases to whom relief was granted. I so

hold having regard in particular to the particular factors present in this case, which include the central nature of the evidence lost

from Garda custody, the loss thereby arising of any opportunity to examine the items, the admission by the respondent that the

ability of the applicant to defend the proceedings has in consequence been impaired and the failure by the appellant to put any case

on affidavit to explain away prejudice.

20. Lest it be said that relief should be refused because the applicant himself was guilty in this case of delay, it is worth noting that it

was held in Bowes and McGrath v DPP that time could not run against the applicant until proceedings were commenced against her.

Her only entitlement to have the motor cycle examined arose from her right to a fair trial, which did not arise until a decision to

prosecute was taken and communicated.

21. These cases clearly demonstrate to me, at least, that where a clear breach of a legal duty has been established by an applicant

with regard to central evidence in a case, and where it is further conceded, as in this case, that the applicant’s ability to defend the

case has as a result been impaired, then an explanation must be provided by or on behalf of the DPP to explain why relevant evidence

was not preserved and evidence provided also to show why its absence does not create the risk of an unfair trial. This is not to

reverse the onus of proof in some novel way in cases such as this but rather to hold that, on the particular facts demonstrated in this

case, the onus of proof falling on the applicant has been discharged.

22. In my view the very limited material placed before the Court completely fails to meet the requirements of the case. It is true that

the Book of Evidence discloses that photographs were taken of finger marks in situ on the articles in question and these photographs

presumably remain in existence as secondary evidence. However, no case on affidavit has been sworn to that effect or to indicate

the reliability of such secondary evidence, nor has any sort of expert evidence whatsoever been offered to the Court to suggest how

such secondary evidence, if found to be admissible, could eliminate the risk of an unfair trial. I think it is quite inappropriate to assume

that this or any other court operating in an adversarial system can or should bring some expertise of its own to bear (assuming it had

it) on the techniques whereby evidence is derived from an original exhibit or to expect a court to determine without evidence the

accuracy or reliability of any product so derived. Even if a court could perform such a function, it still leaves completely unanswered

various questions as to what other information an examination of the original exhibits might have yielded up in this case. It fell to the

appellant to place such information before the court. In the various video cases to which I have referred, evidence which sought to

rebut prejudice was in each case placed on affidavit before the court, notably in Scully v DPP, where the information thus provided by

the respondent completely removed any apprehensions that an unfair trial might ensue.

23. I do not think it wrong, improper or unreasonable for the applicant’s advisors to have rested their application on the basis which

they have done, namely, that without the articles their expert has stated that he cannot conduct a proper evaluation. I am not sure

that any expert could say more in relation to items no longer available for examination. That is not to determine this application on

the basis of blame for losing the primary evidence, but rather to hold on the particular facts of this case that it falls to the appellant

to satisfy the Court that no real risk of an unfair trial exists. I hasten to add that, had the appellant elected to meet the assertion of

prejudice by evidence in rebuttal, either by means of expert or other evidence on affidavit, the appellant might well have dispelled

apprehensions that the loss of the primary evidence in this case gives rise to a real risk of an unfair trial. I would dismiss the

appellant’s appeal and uphold the finding of the learned High Court judge on this issue.

24. On the separate issue of delay, and in marked contrast with how the case on lost evidence has been met, the appellant has fully

explained why delay occurred in this case and has placed on affidavit evidence which satisfies me that the applicant is not entitled to

relief on this ground. I agree with the judgment of Hardiman J. on this issue. I would therefore uphold the findings of the learned High

Court judge and dismiss both appeals.