High Court dismisses judicial review application regarding criminal trial fairness and evidence valuation.

Neutral Citation Number: [2007] IEHC 366

THE HIGH COURT

JUDICIAL REVIEW

[2005 No.648 JR]

[2005 No.649 JR]

BETWEEN

RONAN BYRNE AND LIAM MCKENNA

APPLICANTS

AND

THE JUDGES OF THE CIRCUIT COURT AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

JUDGMENT of Mr. Justice Hedigan delivered on 31st day of October, 2007

Background Facts

This is an application for leave to seek an order by way of declaration, prohibition or injunction restraining the first and second named

applicants’ criminal trial The first named applicant herein faced trial before Trim Circuit Court in respect of a charge of possession of

stolen property under s. 18 of the Criminal Justice (Theft and Fraud Offences) Act 2001, namely a trailer and a Volvo mini-digger

bearing serial numbers 28111610, together valued at €30,000. The second named applicant faced a charge contrary to s. 17 of the

same Act of handling stolen goods.

The offences arose out of the same incidents and are alleged to have occurred at Julianstown in Co. Meath on 7th July, 2004. On

that date a trailer and mini-digger were hired out by their owner, David Hutchinson of C.P. Hire at Rosemount Business Park in the City

of Dublin to a Thomas Power. The trailer and mini-digger were subsequently reported stolen that afternoon and gardaí received

information that a known person had stolen a mini-digger and that it was being driven from Dublin in the direction of Julianstown, Co.

Meath. Gardaí from Blanchardstown Detective Unit set up surveillance on the roadway. They observed a white vehicle with a yellow

light on the roof towing a yellow Volvo mini digger and silver trailer. On entering Julianstown, the yellow mini-digger being towed by a

large Volkswagen Transporter entered the car park of the Old Mill Hotel. Subsequently a black Toyota Landcruiser arrived in the car

park and joined the occupants of the Volkswagen Transporter. It is alleged that the first named applicant was in the front passenger

seat of the Volkswagen van and that the driver of the second vehicle was the second named applicant. According to the statement

of Garda John Hyland, two males, now known to be the first named applicant and another man, were seen getting out of the

Volkswagen van and inspecting the mini-digger on the back of the trailer. The sole occupant of the Toyota, the second named

applicant got out of his vehicle and went over to where the Volkswagen van was parked. Gardaí observed the three men standing

around the mini digger and inspecting it. They observed that the three men spoke with each other and after a short period the gardaí

arrested the three persons they had been observing which included both applicants. Both applicants were brought to Blanchardstown

Garda Station, detained and interviewed and released on bail. In the course of his detention the second named applicant made a

number of admissions as to the offence charged. These are not in issue in this judicial review proceeding. The first named applicant

denied having any knowledge that the mini-digger was stolen.

The first appearance of the applicants at Drogheda District Court was on 22 July, 2004. Thereafter a number of adjournments

occurred and on the 3rd September 2004, on hearing an outline of the evidence including reference to the value of the property, the

District Court judge refused jurisdiction on the basis that it was not a minor offence fit to be tried summarily and adjourned the matter

further to 15th October, 2004 for service of the Book of Evidence.

The following series of events then took place:

27 September, 2004 – The applicants’ solicitor wrote the first of a series of letters to the gardaí investigating the offence, namely

Detective Garda John Hyland, Detective Garda Martin Flood and Detective Garda Edward Carroll seeking confirmation that the mini-

digger and trailer, the subject matter of the proceedings, were being preserved for inspection and requested an opportunity to

examine same. No reply was received in relation to this letter.

15 October, 2004 – The applicants appeared before Drogheda District Court. The matter was struck out by the District Court judge

when no Book of Evidence was ready.

26 January, 2005 – the applicants’ solicitor wrote to Detective Garda Hyland at Blanchardstown Garda station referring to his letter of

the 27 September asking again for confirmation that the trailer and mini-digger were preserved and requested again to carry out an

independent examination

28 January, 2005 – The applicants were re served with the aforesaid charge by arrangement before Drogheda District Court. On that

date the respondent, the Director of Public Prosecutions, directed that the matter be tried on indictment.

3rd March, 2005 – The applicants’ solicitors received a letter from the State Solicitor for Co. Meath, enclosing a copy of a letter

dated 21st February, 2005, from Detective Garda Martin Flood of Blanchardstown Garda Station. The letter reported that the mini-

digger and trailer had been returned to the owner having being photographed by the gardaí and that the mini-digger had since been

sold at auction in Scotland. The trailer was still in the owner’s possession and could be made available for viewing at Blanchardstown

Garda Station.

4 March, 2005 – The applicants appeared before Drogheda District Court and were served with a Book of Evidence. The matter was

then sent forward to the next sitting of Trim Circuit Court.

22 March, 2005 – The applicants’ solicitor wrote to the State Solicitor asking for disclosure of various items including the photographs

taken by the gardaí of the mini-digger and trailer. A copy of this letter was sent to the Superintendent at Blanchardstown Garda

Station and to Detective Garda Hyland, Detective Garda Flood and Detective Garda Carroll

6 April, 2005 and on 13 April, 2005 – The applicants’ solicitor sought a response from Detective Garda Hyland to the letter of the 22

March, asking when the mini-digger had been disposed of.

15 April, 2005 – The applicants’ solicitor received a letter from the State Solicitor for Co. Meath saying that Detective Garda Flood

would ascertain on what date the mini-digger was sold.

22 April, 2005 – The applicants’ solicitor received a letter from Detective Garda Flood dated 21 April, 2005 stating that the mini-digger

had been sent to a depot in Belfast on the week ending 15th January, 2005 and was forwarded along with a number of other mini-

diggers and sold for £8,000 sterling.

16th May, 2005 – The applicants’ solicitor wrote to the State Solicitor for Co. Meath seeking a copy of the document confirming the

sale of the digger at auction and the price for which it was sold along with information as to the precise date that the mini-digger and

the trailer were returned to their owner by the gardaí.

20th June, 2005 - By order of the High Court (McKechnie J.) the first named applicant was given leave to seek an order by way of

declaration, prohibition or injunction restraining the first named applicant’s criminal trial on the count of possession of stolen property.

By order of the High Court (McKechnie J.) the second named applicant was given leave to seek an order by way of prohibition or

injunction restraining the respondents from prosecuting his trial on the count of handling stolen property. He was further granted

leave to seek declarations that the failure of the second respondent to preserve the mini-digger was in breach of his right to a fair

trial in due course of law, the failure to seek out and preserve evidence, in particular to carry out forensic analysis on the mini-digger

is in breach of his right to a trial in accordance with law and a declaration that he was entitled to be informed of the intention of the

second named respondents to restore the mini-digger to its owner.

The Applicants’ Submissions

Grounds upon which the relief is sought

1. Failure to preserve evidence

The applicants maintain that an opportunity to examine the mini-digger independently would have assisted them in their defence. The

failure of the prosecution to preserve the mini-digger for inspection has placed the applicants at a serious disadvantage and

furthermore, the prosecution failed to have regard to its special obligation of seeking out, preserving and disclosing all relevant

evidence.

An independent valuation of the mini-digger may have made a difference on the issue of jurisdiction as the District Court judge may

have viewed the matter as being fit to be tried summarily. The price of £8000 sterling for which the mini-digger is stated to have been

sold in February, 2005 (as stated in the letter of 21st April, 2005 from Detective Garda Flood) is significantly lower than the value

previously put on the mini-digger by the respondents. In his statement contained in the Book of Evidence, the owner of the property,

Mr. David Hutchinson stated the value of the mini-digger to be €20,000 (replacement value €29,000) and the value of the trailer to be

€4000. The value of the property put on the applicants’ charge sheets was put at €30,000.

The first named applicant, Robert Byrne, when interviewed at Blanchardstown garda station made no admission and he consistently

stated that he had no knowledge that the property was stolen. He was travelling in the passenger seat of a car towing the property

and he put the value of both the trailer and the mini-digger at between €5000 and €6000.

The second named applicant, Liam McKenna, when interviewed stated that he had paid €3000 for the mini-digger and not the trailer.

Mention was also made by the applicant in the course of that interview that the approximate value of the mini-digger was €10,000. At

all other times the course of that interview was concerned with the mini-digger, not the trailer and the valuation of €30,000 was

never addressed or put to the applicant.

It is submitted on behalf of the applicants that to preserve the mini-digger in order to allow an opportunity for it to be examined

independently would have assisted the applicants materially in the conduct of their defence. The failure to do so has resulted in the

applicants ability to defend the charge and being accorded a fair trial in due course of law being impaired and the applicants would be

prejudiced were the trial to proceed.

2. The right to a fair trial in due course of law in accordance with Article 38.1of the Constitution has been violated

It was submitted on behalf of the applicants that the second named respondent, the Director of Public Prosecutions, failed to comply

with the principles of natural and constitutional justice and basic fairness of procedures in regard to the investigation of the offence.

The prosecution failed to conduct any forensic testing on the recovered vehicle or the applicants and had irreparably prejudiced the

prospect of the applicants obtaining a fair trial in accordance with the law. Furthermore, it was submitted that the second named

respondent had failed to have any or any adequate regard to his duty to disclose to the applicant his intention to restore the mini-

digger to its owner. Such behaviour denied the applicants the opportunity of examining the vehicle and deprived each applicant of the

opportunity to rebut the evidence against him. The applicants have been advised that an examination or valuation of the mini-digger

cannot be conducted on the basis of photographs. The foregoing amounts to a failure to ensure that the applicants would be afforded

a fair trial particularly in three respects:

(i) The issue of jurisdiction

An independent expert’s assessment and valuation of the mini-digger might have made a difference on the issue of

jurisdiction and the matter would probably have been viewed as a minor matter fit to be tried summarily had the initial

valuation of the property been lower. It was submitted on behalf of the applicants that the issue of value influenced the

District Court judge when he refused jurisdiction.

(ii) The issue of the first named applicant’s guilt or innocence

An independent assessment and valuation of the mini-digger would have been central to the substance of the first named

applicant’s guilt or innocence, particularly in terms of the mens rea for the offence of possession of stolen property

charged under section 18, by assisting the first named applicant in displacing the presumption of knowledge contained in

subsection 2 of section 18:

“(2) Where a person has in his or her possession stolen property in such circumstances (including purchase of the

property at a price below its market value) that it is reasonable to conclude that the person either knew that the

property was stolen or was reckless as to whether it was stolen, he or she shall be taken for the purposes of this

section to have so known or to have been so reckless, unless the court or the jury, as the case may be, is satisfied

having regard to all the evidence that there is a reasonable doubt as to whether he or she so knew or was so

reckless.”

(iii) Cross-examination of David Hutchinson

It was argued on behalf of the applicants that an independent assessment and valuation of the mini-digger would have

enabled the defence to cause the prosecution witness David Hutchinson to be cross-examined as to his credibility

considering that in the statement contained in the Book of Evidence he valued the mini-digger at €20,000, yet he sold it

at auction for only £8,000.

3. Prejudice

The prejudice suffered by the applicants arises from the failure of the gardaí to preserve the mini-digger for inspection. This failure to

preserve evidence has placed the applicants at a serious disadvantage and each applicant has been prejudiced as to the conduct of

his defence. The mini-digger was returned to its owner and disposed of despite the fact the applicants’ solicitors had written on

several occasions to the gardaí and to the State Solicitor seeking its preservation for examination. Accordingly, if the trial proceeds

the applicants will have been unfairly and irretrievably prejudiced in seeking to defend the matter and any trial against the applicants

will therefore amount to an unfair trial.

4. Irreparable loss and damage

The applicants will suffer irreparable loss and damage if the relief sought is not granted and damages will not be an adequate remedy.

Legal issues relied upon by the applicant

The duty to preserve evidence

Counsel on behalf of the applicant argued that the duty of the gardaí to preserve all evidence having a bearing or potential bearing on

the issue of guilt or innocence is well established in a series of cases. The test established for deciding whether judicial review should

be granted in ‘preservation of evidence’ cases is that the applicant might be at ‘real risk of an unfair trial’. The applicants argued that

the second named respondents had in their possession, evidence which they failed to preserve. The evidence was disposed of in what

was described by counsel as ‘a blatant disregard for its preservation’ despite communications received from the applicants’ solicitor

that they sought to carry out an independent examination on the evidence.

Counsel for the applicant’s relied on a number of cases which held that evidence relevant to guilt or innocence must be retained.

In Murphy v. Director of Public Prosecutions [1989] ILRM Lynch J. granted to the applicant an injunction where the gardaí had been

made aware at an early stage of proceedings of the applicant’s wish to inspect a car in their possession for forensic evidence

including fingerprints where the applicant’s opportunity to defend his case and rebut the visual identification of the gardaí had been

materially affected. Lynch J. said that the evidence relevant to guilt or innocence must be kept until the conclusion of the trial ‘so far

as is necessary and practicable’. He stated at p.76:-

“Clearly the courts envisage that an accused person be afforded every reasonable opportunity to inspect all such relevant

evidence in order to adequately prepare his defence.”

In Braddish v. Director of Public Prosecutions [2001] 3 I.R. 127 the video of a shop robbery was in the possession of the gardaí but

was unavailable before trial because it had been returned to the owner who had wiped it. The gardaí chose not to rely on the video

as evidence but to advance the case solely on the basis of a confession. The video had been requested from the applicant’s solicitor

at an early stage in the proceedings. The applicant was granted an order restraining his prosecution on the basis of the non

availability of the video-tape evidence. Hardiman J. held at p.133 :-

“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.”

Counsel on behalf of the applicants says that this principle applies not only to those with direct and established evidential

significance, but also to the preservation of articles that may give rise to a reasonable possibility of securing relevant evidence,

including evidence that might damage the opponent’s case.

In Dunne v. Director of Public Prosecutions [2002] 2 I.R. 305 the majority of the Supreme Court allowed the applicant to succeed in

his claim to restrain prosecution where he had been charged with a robbery and the gardaí denied having been given a video of the

alleged incident although the owner of the shop said that it was policy to give the gardaí a video of the robbery. It was held that the

video was ‘relevant material’ and Hardiman J. said at p.313:-

“… material may be relevant to the investigation if it appears … that it has some bearing on any offence under

investigation or any person being investigated, or on the surrounding circumstances of the case, unless it is incapable of

having any impact on the case.”

In Bowes v. Director of Public Prosecution [2003] 2 I.R. 25 Hardiman J. citied with approval the criteria for judging the ‘real risk of an

unfair trial’ in the judgment of Finlay C.J. in Z v. Director of Public Prosecutions [1994] 2 I.R. 476 at p. 507:-

“Where one speaks of an onus to establish a real risk of an unfair trial it necessarily and inevitably means an unfair trial

which cannot be avoided by appropriate rulings and directions on the part of the trial judge. The risk is a real one but the

unfairness of trial must be an unavoidable unfairness of trial.”

In McGrath v. Director of Public Prosecutions [2003] 2 I.R. 25 the prosecution were proposing to present a case where the applicant

was charged with dangerous driving causing death in the absence of any witnesses on the basis of remarks made by the accused in

the aftermath of the accident when she was in a state of shock. The gardaí had parted with the motorcycle involved in the collision

more than two months before proceedings were taken. The defence sought to examine it within days of service of the Book of

Evidence. In that case the Supreme Court concluded that the applicant had suffered the loss of a reasonable prospect of obtaining

evidence to rebut the case made against her.

In McKeown v. Director of Public Prosecutions (Unreported, Supreme Court, 9th April, 2003) McCracken J. refused judicial review

because the evidence sought to be examined by the applicant would have been of no benefit to the defence and there had been a

delay of ten months after charge in seeking the examination. McCracken J. held that the question is whether the evidence could be of

assistance to the defence, but that evidence should only be returned to the true owner:-

“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.”

In the course of his judgment McCracken J. also stated:

“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.”

In Scully v. Director of Public Prosecutions [2005] 1 I.R. 242 Hardiman J. for the Supreme Court refused judicial review on the grounds

that the applicant’s delay in seeking sight of a CCTV video originally in the possession of the gardaí because the “lapse of time

between the charging of the applicant and his application for relief on the eve of his trial was, in all the circumstances of this case,

excessive.” (at p. 246). The delay was found to be significant not so much for its bare length as for “the indication that it provides

that the case is based on a ‘remote, fanciful or theoretical’ possibility, rather than a real desire to obtain evidence believed to be

potentially exculpatory.” In coming to his decision Hardiman J. followed the test established in Z v. Director of Public Prosecutions of

“real risk of an unfair trial”.

In McFarlane v. Director of Public Prosecutions (Unreported, Supreme Court, 7th March, 2006) the majority of the Supreme Court

allowed the respondents appeal against a High Court decision preventing the applicant’s trial from proceeding on the basis that certain

exhibits from which fingerprint evidence had been taken had gone missing and were not available for inspection by the applicant.

Hardiman J. for the majority criticised the loss of the evidence but held that there was a chain of evidence covering the identification

of the fingerprints, the photographing of the prints and the preservation of the photographs and that no attempt had been made to

suggest that meaningful comparison would not be possible using the photographs or

“that any additional advantage might have accrued to the defendant on the basis of a comparison with the actual marks

made on the items as opposed to photographs of them.”

Hardiman J. distinguished the case from that of McGrath where:

“An expert engineer on behalf of the applicant stated that due to the non-availability of an item of real evidence he was

unable to carry out specific tests the result of which might have had an obvious benefit to the defence. There is no basis

on the evidence in this case for an agreement that "the applicant has been deprived of the reasonable possibility of

rebutting the evidence proffered against him" …In order to demonstrate that risk there is obviously a need for an applicant

to engage in a specific way with the evidence actually available so as to make the risk apparent. A failure to do this was

the basis of the failure of the applicant in Scully 1 I.R. 242. This is not a burdensome onus of proof: what is in question,

after all, is the demonstration of a real risk, as opposed to an established certainty, or even probability of an unfair trial.”

He concluded:

“Quite obviously the gardaí have been in breach of their duty to preserve the evidence, but in this case, unlike the

others, this breach has not resulted in the loss of that evidence in an independently verifiable form.”

In Ludlow v. Director of Public Prosecutions and Judge O’Shea (Unreported, High Court, Dunne J., 16 July, 2006) Dunne J. granted

relief to prohibit a trial arising from a dangerous driving incident where the vehicle involved had been returned to its owner and the

tyres of that vehicle, the subject of additional charges had been disposed of by the owner. The argument proffered by the

respondents in that instance placing reliance upon the fact that detailed photographs had been furnished was rejected by Dunne J.

She stated:

“there cannot be any doubt as to the importance in the present case of the tyres for the purpose of permitting a forensic

examination to be carried out with a view to obtaining evidence with which to rebut the technical evidence to be given by

Sergeant Prendergast. Therefore, I am satisfied that there was a duty to preserve the tyres. There is no evidence before

me to suggest that this was not possible to do.”

The applicants herein also rely on the decision of Charleton J. in Toohey v. Director of Public Prosecutions (Unreported, High Court,

Charleton J., 16 January, 2007) where judicial review proceedings had arisen from the applicant’s prosecution arising from a road

traffic accident, wherein he had been charged with dangerous driving and driving a vehicle with a worn tyre. A similar approach was

taken as that in Ludlow based upon the fact that neither the vehicle or the tyres were preserved for the defence expert to examine:-

“What is required is a reasonable opportunity for an expert on behalf of the defence to examine vehicles. Possibly at the

request of an expert, or by decision of the Gardaí, certain portions of a vehicle, such as its tyres, or relevant paint

scrapings, might be preserved. The duty on the investigating and prosecuting authorities must be, however, in such

cases, to create a circumstance whereby such an inspection will become possible.”

The applicants’ contend that from the abovementioned case-law, a number of issues critical to the outcome of judicial review

applications seeking ‘preservation of evidence’ may be identified here.

(i) The date on which the applicants’ solicitor has made the request of access to the evidence.

Counsel for the applicants say that on the issue of timing of the request by the applicant, the courts have clearly

disapproved of excessive delay in making a request. However counsel argues that for the purpose of considering whether

there has been excessive delay time will not necessarily start to run from the date of the offence or even from the date

upon which the accused is charged as the significance of the evidence in question may not be apparent until the service

of the Book of Evidence. In this instance matters had been struck out due to non-availability of the Book of Evidence in

October, 2004. Further, it is pointed out by counsel for the applicants that their solicitor sought confirmation from the

respondents that the property in issue was being preserved for examination and requested an opportunity to examine the

property at an early stage in the proceedings, with his first letter dated 27th September, 2004 sent prior to the service of

the Book of Evidence.

(ii) The time at which the gardaí parted with possession.

Counsel for the applicants argues that it is not clear when the gardaí returned the mini-digger to its owner but it appears

that it was disposed of by its owner subsequent to the initial letter of the 27th September, 2004 and subsequent to other

similar correspondence from the applicants’ solicitor sent in January, 2005.

(iii) The evidential relevance of the items in issue.

Counsel for the applicants say that an expert engineer has stated that due to the non-availability of the mini-digger he is

unable to carry out specific tests the result of which might have had an obvious benefit to the defence. Counsel avers

that applying the reasoning of Hardiman J. in McFarlane and particularly the judgments of Dunne J. in Ludlow and

Charleton J. in Toohey shows that the photographic evidence of the mini-digger is not a proper substitute for the real

evidence to rebut the prosecutions allegations at trial and that accordingly the applicants have established the requisite

standard that a real risk exists that due to the non-availability of the evidence in question, they may face an unfair trial.

The Director of Public Prosecution’s Submissions

1. No culpability on the part of the gardaí

On behalf of the second named respondent it is submitted that the applicants have not demonstrated that the gardaí were to blame

for the non-retention of the mini-digger. The respondent argues that unlike cases such as DPP v. Braddish, where blame could clearly

be attached to the gardaí in failing to seek out or preserve evidence, the gardaí in the present case cannot be criticised. The

respondent points out that the mini-digger was examined and photographed by the gardaí and the photographs were made available

to the defence. The mini-digger was returned to the owner along with the trailer at the owner’s insistence as these items were of

considerable value and loss to the owner. It is submitted that this is a relevant matter for this Court to consider. The affidavit of

Detective Garda Flood states that the owner of the property, Mr. Hutchinson was informed by the gardaí that the property may be

required for a court case and that he should not dispose of it. Notwithstanding the fact that the gardaí made it clear to Mr.

Hutchinson that the mini-digger should not be disposed of, he forwarded it to the company’s depot in Belfast and from there it was

forwarded with a number of other vehicles to Scotland where it was disposed of at auction.

2. Issue of jurisdiction

The Director of Public Prosecutions has argued that it cannot with any degree of certainty be stated the District Court judge would

have arrived at a different view on the issue of jurisdiction had the applicants adduced independent evidence vouching a lower

valuation for the mini-digger. The respondent argues that it is likely that the judge took into consideration a number of matters over

and above the value of the property when deciding whether or not to accept jurisdiction. The respondent submits that such other

matters considered by the District Court judge would have included the organised nature of the alleged crime, the fact that the

vehicles appeared to have been stolen to order, the fact that the enterprise appears to have been carried out to order and the fact

that the incident involved the theft and transporting of two large vehicles. It is submitted that leaving aside the issue of valuation,

the judge made his decision following an outline of the evidence and was entitled to form the view that the case before him was non-

minor. It is submitted that the applicant has not demonstrated that as a matter of probability the District Court judge would have

come to a different conclusion had he before him the subsequent information concerning the price that the mini-digger was sold for.

The sale of the digger for £8000 sterling equates to €10,152 approximately and the owner of the vehicle explained that this was an

artificially low price because his company was prepared to take a loss on the old diggers which were sold as part of a package

because of a good deal they were apparently getting on new vehicles they were buying. The owner claims that the digger would have

been worth a lot more if sold in an individual sale. Furthermore, as it is unlikely that the disputed valuation would have impacted on

the District Court’s decision to refuse jurisdiction and as the applicants have not sought to challenge that decision, it must be

regarded as valid. The respondent further submitted that merely because information might emerge subsequent to a District Court

judge deciding on jurisdiction, casting doubt on the valuation for stolen items in a theft or handling prosecution does not and should

not cause a prosecution to collapse, all the more so when one is dealing with valuations that are estimates and which in the case of

vehicles may depreciate in value over time.

3. The relevance of the valuation to the issue of guilt or innocence

On behalf of the second named respondent it was argued that the first named applicant’s point that the unavailability of the mini-

digger for inspection had impaired the applicant’s ability to conduct his defence or to procure evidence that would have been relevant

to his position and the issue of guilt or innocence has not been demonstrated. The respondent points out that the applicant does not

deny that he was arrested with two other men inspecting the vehicles at the scene where the gardaí carried out their surveillance.

Nor is it denied that the vehicles were stolen. The only issue appears to be whether or not he was aware or reckless as to whether

the mini-digger and trailer were stolen. The applicant is free to make out a case as to how he came to be in possession of the

vehicles and to make out a case that he was unaware that they were stolen. The only connection that the first named applicant

makes between the lost opportunity to inspect the vehicle and the issue of guilt or innocence is the claim that because he maintains

that he cannot produce an independent valuation of the digger he cannot disprove the vehicles were to be purchased at a price

below their market value. The second named respondent maintains that the applicant has failed to demonstrate any such thing and it

is open to him to make whatever case he wishes with a view to discrediting the prosecution valuation.

The Director of Public Prosecutions says that the claimed impairment of the applicant’s ability to defend himself contrasts with cases

such as dangerous driving causing death where the vehicles involved are no longer available for inspection. The respondent claims

that the present case can be distinguished from those ‘missing video’ cases where an accused person demonstrates the likelihood of a

missing video would have shown the injured party to be the troublemaker. No such claim is being made by the applicant in this case.

The respondent argues that even within the narrow remit of the applicant’s argument that he has been deprived of an opportunity to

call expert evidence as to the true value of the mini-digger, that evidence comes up short. The respondent makes the point that in

the affidavit of Kenneth Cromwell, the valuer retained by the applicant, he states that he would need to see the machine and perhaps

operate it but he does not comment on the possibility of giving a valuation based upon other factors such as the purchase price, the

age of the mini-digger, its crash history and overall specifications. Nor is there anything in Mr Cromwell’s affidavit stating whether he

agrees or disagrees with the information offered by the owner of the mini-digger in the letter to the gardaí.

In the case of the second named applicant, Liam McKenna, it is submitted by counsel on behalf of the Director of Public Prosecutions

that in judicial review applications such as this the Court, notwithstanding the fact that the applicant enjoys the presumption of

innocence in the criminal trial, is entitled to have regard and attach considerable weight to the fact that cautioned admissions as to

the matters charged were made by him while in custody which appear to make it plain that he knew that the vehicles were stolen.

4. Credibility of David Hutchinson

The second named respondent avers that it remains open to the first named applicant to query Mr. Hutchinson’s valuation of the mini-

digger. The defence can cross examine him as to the valuation given in the Book of Evidence versus the lower valuation given in the

letter to the gardaí. It is open to the defence to adduce whatever evidence it sees fit concerning the likely value of that type of

vehicle with a view to refuting the suggestion that the property was purchased below market value. According to the prosecution’s

case (and it is not denied by either applicant) the second named applicant was the purchaser of the vehicles which he knew to be

stolen and also knew that the vehicles were being sold to him at undervalue.

5. Applicants’ delay

The second named respondent contends that the applicants are out of time to bring these judicial review proceedings. Order 84 r. 21

of the Rules of the Superior Court require that an application for an injunction by way of judicial review be made promptly and, in any

event, within three months from the date when grounds for the application first arose. The second respondent avers that leave to

issue the within proceedings was not sought until the 20th June, 2005, more than three months outside the service of the Book of

Evidence which had been on the 4th March, 2005. The respondent argues that the applicant is out of time to seek the relief being

sought and on that ground alone the application for the relief of judicial review should be refused. The respondent argues that the

applicants’ delay in seeking inspection facilities for the mini-digger is also of relevance. The applicants first sought preservation of the

evidence on the 27th September 2004, eleven weeks after their arrest for the offences related to the vehicle. The respondent further

states that the applicant delayed in availing of the respondent’s offer to inspect the trailer. It is contended that this delay coupled

with the fact that the inspection itself was cursory and lasted minutes; no written notes or photographs were taken of the trailer,

illustrates the limited relevance and significance of the demand that inspection facilities be made available and it is asserted that the

delay in inspecting the trailer indicates the applicants’ true view of the value which any such inspection would have had.

Legal issues relied upon by the second respondent

Jurisdiction to stay proceedings

By virtue of Article 30.3 of the Constitution of Ireland, the prosecution of offences is committed to the executive branch of the

government, specifically to the Director of Public Prosecutions in the case of proceedings on indictment (s. 3 Prosecution of Offences

Act, 1974) and the trial of offences is committed to the courts established by law in accordance with the Constitution. Thus it is

submitted that the point of departure for this Court is that every judge presiding over a criminal trial will take all necessary and

appropriate steps to ensure that the trial is conducted in due course of law as stated by Lynch J. in P.C. v. Director of Public

Prosecutions [1999] 2 I.R. 25 at 77. It follows that only in exceptional circumstances should the superior courts intervene to prohibit

a trial from taking place. It follows that an applicant seeking such relief carries the onus of establishing, on the balance of

probabilities, that there is a real risk that he will not receive a trial in due course of law as accorded to him by Article 38.1 of the

Constitution. These principles are now well established. In Z v. Director of Public Prosecutions [1994] 2 I.L.R.M. 481 Finlay C.J., said

at 498:-

“This Court in the recent case of D v. Director of Public Prosecutions [1994] 1 I.L.R.M. 435 unanimously laid down the

principle that the onus of the proof which is on an accused person who seeks an order prohibiting his trial on the ground

that circumstances have occurred which would render it unfair is that he should establish that there is a real risk that by

reason of those circumstances…he could not obtain a fair trial.”

Finlay C.J. went on to describe the onus upon the applicant seeking to stay his trial in the following terms at p. 499:-

“…an onus to establish a real risk of an unfair trial … necessarily and inevitably means an unfair trial which cannot be

avoided by the 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. “

The approach in D was followed by Hamilton P. in the High Court in Z v. Director of Public Prosecutions who, after referring to the

standard of proof resting upon the applicant as described by Finlay C.J. in D v. Director of Public Prosecutions made the following

observation at p. 495:-

“This standard of proof was accepted by the other members of the Supreme Court. In the course of his judgment in the

case of Jago v. District Court of New South Wales (1989) 168 CLR 23, Mason CJ stated (at p. 34):

“To justify a permanent stay of criminal proceedings, there must be a permanent defect which goes to the root of

the trial ‘of such a nature that nothing a trial judge can do in the conduct of the trial can relieve against its unfair

consequences”

If the phrase ‘real or serious risk’ was inserted before ‘a permanent’ in that passage, the test would be the same.”

The respondent relies on the Supreme Court decision of Bowes v. Director of Public Prosecution [2003] 2 I.R. 25 to demonstrate that

there is a heavy onus on an applicant seeking prohibition to establish the relevance of missing evidence. In Bowes the applicant faced

a charge of the possession of heroin for sale and supply. The prosecution alleged that a quantity of heroin was found in the boot of a

car driven by the accused. In Bowes the car was not itself relevant to the case except in the sense that it had been driven by the

accused. The Supreme Court concluded that there was no real loss of opportunity to the defence to rebut the prosecution case.

The respondent argues that recent jurisprudence in this area indicates that ‘lost evidence’ cases fall to be viewed within a certain

range. The respondent says that there are cases such as McGrath v. Director of Public Prosecutions [2003] 2 I.R. 25 where the

missing evidence is directly relevant to the issue of guilt or innocence and cases such as Bowes where the evidence of the car was

not directly relevant to the case, except in the limited sense that drugs were found in the car. In McGrath accident reconstruction

was a significant element in that case and the applicant’s engineer found himself considerably disadvantaged as he was unable to

deduce the closing impact speed of both vehicles or eliminate any mechanical condition of the motorcycle that might have

contributed to the collision. The respondent avers that the instant case lies well beyond the outer extremity represented in Bowes

and no loss of opportunity to rebut the prosecution case has occurred less still has any such loss been demonstrated.

The respondent further argues that there is a need for the applicant seeking prohibition to engage with the evidence so as to

establish a real risk of an unfair trial. In Scully v. Director of Public Prosecutions [2005] 1 I.R. 202 at p. 252 Hardiman J. was critical of

an accused making vague assertions of prejudice without setting out in clear terms how a particular line of defence had been lost to

him:-

“[A]ll the applicant has done here is merely to invoke the possibility that exculpatory evidence at one time existed, that

there was something visible on the video, despite the new evidence. He must do more than that. In the words of Finlay

C.J. in Z. v. DPP [1994] 2 I.R. 476 at 507 he must ‘… establish a real risk of an unfair trial…’: the importance of the first

adjective in this phrase is that it excludes a risk which is merely remote fanciful or theoretical. The need to meet this

requirement involves a much greater engagement with the actual state of the evidence than is apparent here.”

The respondent also relies on McFarlane v. Director of Public Prosecutions (Unreported, Supreme Court, 7th March, 2006) to

demonstrate that prohibition will be refused where it is open to the accused to seek to prove a particular fact by means of an

alternative source of evidence. Giving the majority judgment in that case, Hardiman J. returned to the theme of requiring an applicant

to engage with the prosecution and stated that an applicant for prohibition must show, on the basis of the facts alleged that a

particular line of defence or opportunity to cross-examine has been lost to him as a result of the garda negligence. Kearns J. in the

minority said that common sense parameters of reasonable practicality must govern any determination of the scope of the duty on

gardaí when seeking out or preserving evidence, The remote possibilities arising from the loss of evidence should not, according to

Kearns J. be allowed “to trip up the prosecution or justify stopping a trial from taking place.” In the same case, Hardiman J expressed

criticism at the applicant’s attempts at engaging with the prosecution case:

“Insofar as this ground is urged on the basis of general prejudice, I am unimpressed by it. The whole of the case in this

regard is based on a single sentence from the grounding affidavit of Mr. McGuill, solicitor for the applicant, which is quoted

above. That is no more than a general statement of the effect of a lapse of time. It makes no attempt whatever to

engage with the actual circumstances of the applicant himself at the relevant time. On the 25th September, 1983, he had

undoubtedly escaped from lawful custody in Northern Ireland. The next uncontroversial statement that can be made

about his whereabouts is that he was in the Netherlands in January of 1986 in possession of a stolen or forged Irish

passport. The applicant has said nothing about his whereabouts during any part of that time and, vitally, has not

asserted, or caused his solicitor to assert, either how he spent the time, or that he cannot recall where he was, during

the period of Mr. Tidey’s captivity in late November and up to the 16th December, 1983. A remote, fanciful or purely

theoretical form of prejudice is plainly not sufficient to entitle him to relief. An applicant in this position must address if it

is possible the actual specific facts of his case and this present applicant has singularly failed to do.”

In the recent Supreme Court case of P.H. v. Director of Public Prosecutions (Unreported, Supreme Court, 29th January 2007) the

court emphasised that prejudice will not be sufficient to prohibit a trial if it relates to evidence the essence of which can be obtained

from other sources. Giving the judgment of the court, Hardiman J. said:-

“It seems to me that the Director has been able to point to the probable availability from other sources of at least the

essence of the nurse’s evidence, and that this is sufficient to avoid the inference that there is a real or serious risk of an

unfair trial. Obviously, if the Director were hereafter, by cross-examination or otherwise, to belittle the evidence available

from the other sources in its veracity or its significance, a different position might then obtain. But that, I am satisfied, is

something that can be dealt with by the trial judge if and when it occurs.”

Role of the trial judge

The respondent points out that it is the obligation of the trial judge to ensure fairness of the trial and to adjudicate on the validity of

orders authorising detention of an accused. In Blanchfield v. Hartnett [2002] 3 I.R. 207 Fennelly J. stated at p. 226:-

“Once the judge at trial possesses any necessary powers and once, as in Clune v. The Director of Public Prosecutions

[1981] I.L.R.M. 17, it must be presumed that he will exercise those powers fairly and justly, there is no need for the High

Court to intervene. It is usually preferable to allow the trial judge to hear evidence concerning all the elements bearing on

the issue of whether evidence should be admitted than to take one issue such as the validity of an order to be dealt with

in isolation. It should also be borne in mind that the illegality of such an order is not, in any event, determinative of the

issue of admissibility. Taking the issue out of its proper context may create a misleading impression as to its impact.”

Counsel for the respondent say that case-law has asserted the supremacy of the trial judge’s function in ensuring fairness in criminal

proceedings and as such the complaints which the applicants herein are seeking to litigate should be more properly dealt with by the

trial judge.

Resort to the High Court Rare and Exceptional

The respondent seeks to rely on the decision of Keane C.J. in McLoughlin v. Director for Public Prosecutions (Unreported, Supreme

Court, 8th November 2001) to establish that the circumstances in which the High Court will interfere and is entitled to interfere by

way of prohibition in a criminal trial which is imminent are limited. Keane C.J. said that the High Court can do so “when the delay by

the prosecution is such as to violate the accused’s right to an expeditious trial, a right guaranteed under the Constitution as an

essential feature of a ‘trial in due course of law’”. The respondent also relies on the judgment of Denham J. in D.C. v. Director of

Public Prosecutions [2006] 1 ILRM 348 to show that the jurisdiction to intervene is exceptional:-

“The applicant in this case seeks to prohibit a trial in which he is the accused. Such an application may only succeed in

exceptional circumstances. The Constitution and the State, through legislation, have given to the respondent an

independent role in determining whether or not a prosecution should be brought on behalf of the people of Ireland. The

respondent having taken such a decision, the courts are slow to intervene. Under the Constitution it is for a jury of

twelve peers of the applicant to determine whether he is guilty or innocent. However, bearing in mind the duty of the

courts to protect the constitutional rights of all persons, in exceptional circumstances the court will intervene and prohibit

a trial.

In general such a step is not necessary as the trial judge maintains at all times the duty to ensure due process and a fair

trial. The basic assumption to apply in relation to all pending trials is that they will be conducted fairly, under the presiding

judge. However, in circumstances where there is a real or serious risk of an unfair trial, the courts will intervene so that a

defendant may not be exposed to the commencement of the process, it being the assumption that should such a trial

commence it will be stopped by the direction of the trial judge because of the real or serious risk of an unfair trial.

It is this exceptional jurisdiction which the applicant wishes to invoke. Such a jurisdiction to intervene does not apply

where the applicant has minutely parsed and analysed the proposed evidence and sought to identify an area merely of

difficulty or complexity. The test for this court is whether there is a real risk that by reason of the particular

circumstances the applicant could not obtain a fair trial.”

Both Blanchfield v. Hartnett and McLoughlin v. Director for Public Prosecutions were relied on by Murphy J. in McNulty v. Director of

Public Prosecutions and Judge White (Unreported, High Court, Murphy J., 15th March, 2006) where prohibition was refused on the

basis that the applicant’s complaint should more properly be dealt with by the trial judge who should be entrusted with the task of

ruling on admissibility disputes in general. The respondent also refers to the decision in McCormack v. Director of Public Prosecutions

(Unreported, High Court, Charleton J., 17th April, 2007) where it was held that the court has no jurisdiction to decide issues of

admissibility at trial by way of an application for judicial review.

Decision

The second named respondent contends that the applicants are out of time to bring these judicial review proceedings. They submit

that O. 84, r. 21 requires that an application for an injunction by way of judicial review be made promptly and in any event within

three months from the date when the grounds of the application first arose. The leave to issue these proceedings was not sought

until 20th June, 2005 which is outside the three month period from service of the book of evidence which had been on 4th March,

2005. Counsel for the respondent in his submissions made the case that time began to run on the date that the letter was received

on 3rd March, 2005, to the effect that the digger had been sold. In either event, it would appear that the period of three months was

exceeded by either 16 or 17 days. I was not informed whether this matter was raised at the application for leave to seek judicial

review which I would have considered to be the appropriate place for it to be raised. In all the circumstances of this case I am not

prepared to refuse the application on the basis of delay and if it is necessary for me to do so, extend the time up to and including

20th June, 2005.

The court is asked to prohibit the trial of both of the applicants on the basis that owing to the unavailability for full inspection of the

Volvo mini-digger the subject matter of the charges against them, they would not receive a fair trial on the charges respectively of

possession of stolen property and handling stolen goods.

The second applicant also seeks declarations that the failure to preserve the mini-digger, the failure to seek and preserve evidence

and to carry out a forensic analysis on the mini-digger were in breach of his right to a fair trial and further that he was entitled to be

informed of the intention of the second respondent to restore the mini-digger to its owner.

The onus on the applicants in this regard is set out by Finlay C.J. in Z. v. D.P.P. (cited above):-

“This Court in the recent case of D. v. Director of Public Prosecutions [1994] 1 I.L.R.M. 435 unanimously laid down the

principle that the onus of the proof which is on an accused person who seeks an order prohibiting his trial on the ground

that circumstances have occurred which would render it unfair is that he should establish that there is a real risk that by

reason of those circumstances … he could not obtain a fair trial.”

Finlay C.J. further observed at p. 499: -

“… An onus to establish a real risk of an unfair trial … necessarily and inevitably means an unfair trial which cannot be

avoided by the 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.”

This standard has been applied as noted in the respondents’ submissions in cases as recent as Scully v. D.P.P. (cited above),

McFarlane v. D.P.P. (cited above) and in P.H. v. D.P.P. (also cited above).

It is clear from these cases that the jurisdiction to intervene is a rare and exceptional one. Do such circumstances exist here as meet

that high standard?

The actions of the Gardaí

Whilst it is clear that the Gardaí are obliged to preserve evidence, there are circumstances where this must be done with some degree

of commonsense and practicality. To cite Lynch J. in Murphy v. Director of Public Prosecutions (cited above) “so far as is necessary

and practicable”. To continue to withhold possession of valuable machinery such as a mini-digger from its hire company owner would

be to doubly victimise the victim of the crime alleged. There might well be circumstances where that is inevitable but I doubt they

exist here. The mini-digger is of a well known type and model, its age is known and its condition can surely be evidenced by

inspection of the photos already taken by the Gardaí and the report of the Garda Inspector and further from the records of the hire

company and other independent evidence. If this were not so, the trial judge ought to be able to deal with the matter on an

application to exclude evidence or any other appropriate application. In my view, the Gardaí quite properly returned the machine with

advice that it should be retained as possible evidence. It was later, apparently, inadvertently, sold off as part of a batch. I note in

passing that the sale price for a sum lower than that assessed in the Book of Evidence is something that may be favourable to the

accused. In sum it seems to me that the Gardaí acted quite properly in the manner they did.

The decision of the District Judge

It is argued by the applicants that had there been an opportunity for them to inspect the digger they might have been able to

convince the District Judge that its value was substantially less than the value alleged in the Book of Evidence. Had this occurred,

they continued to argue, the District Judge might not have decided to decline jurisdiction. This is speculative in relation to its first

element and highly speculative in relation to the second. On the facts before me, there are other grounds upon which the District

Judge could have relied in his decision that this was not a minor offence fit to be tried summarily, e.g. the element of organised crime

involved and the apparent stealing-to-order nature of the offence alleged. On the basis of the tests to be applied to require the High

Court to intervene, this falls far short of the standard.

The unavoidable unfairness of the trial

The first applicant claims the unavailability of the digger for inspection impaired his ability to defend himself or procure relevant

evidence. I note he does not deny he was arrested with two other men inspecting the vehicle at the scene. Moreover, he does not

deny the vehicle was stolen. The only issue seems to be as to whether he was aware or reckless as to whether the two vehicles

were stolen. Central to this is the question as to how far below market price the vehicles were allegedly sold. He maintains that he

now cannot disprove that they were sold below market value. It seems to me that it remains open to the applicant by cross

examination or the production of evidence to disprove this. Even in the event that this were not so, I would still think that the trial

judge would be the better placed to hear and decide an application in this regard. Moreover, the affidavit of Kenneth Cromwell does

not comment on his ability to give a valuation based upon other factors that could be used to value the digger such as the purchase

price, the age, the crash or accident history and overall specification. In regard to the second named applicant I accept the

submission made on behalf of the Director of Public Prosecutions that in judicial review applications such as herein it is open to the

court to take into account admissions made by the accused notwithstanding the presumption of innocence. I note in this regard that

the second applicant admitted that he knew the vehicles were stolen.

For all these reasons, I cannot find that there is any unavoidable unfairness of a trial in this case. It seems to me therefore that on

these crucial criteria to determine whether the rare and exceptional jurisdiction to prohibit the continuance of the trial should be

applied here, I find that the applicants have fallen far short and therefore refuse the application.