Supreme Court dismisses appeal as destruction of vehicle did not create a real risk of unfair trial.

[2008] IESC

THE SUPREME COURT

120/05

Denham J.

Hardiman J.

Fennelly J.

CIARAN SAVAGE

Applicant/Appellant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

JUDGMENT of Mr. Justice Hardiman delivered the 3rd day of July, 2008.

1. I have read the judgments of Denham J. and Fennelly J. in this case and am generally in agreement with them and with the order

proposed for the disposal of this case. I wish however to make a number of observations of my own and therefore venture to prepare

this short judgment.

2. I am in agreement with the summary of the various decisions in this area offered in the judgment of Fennelly J. I favour the refusal

of relief in this case because I cannot see that the evidence on behalf of the applicant, and in particular the expert evidence of Dr.

Jordan, leads to the conclusion that the destruction of the vehicle has confronted the applicant with an unavoidable risk of an unfair

trial. The applicant has not committed himself to any particular line of defence, and is entitled to refrain from doing so. From the

terms in which the evidence of Dr. Jordan is expressed one might think that a possible viable line of defence, in his mind, is that, in Dr.

Jordan’s words:

“The vehicle was defective in ways which might reasonably not have been noticed by the driver and which might

reasonably have caused or contributed significantly to the causation of the impact”.

3. Dr. Jordan has however indicated that various of the features of the car post accident, which were observed and recorded by the

gardaí, support the conclusion quoted. To that extent there is not merely no demonstrated risk of an unfair trial but there is positive

evidence that the garda evidence may support one of the defences which may be relied upon the applicant.

4. It is obvious that any professional witness be he a doctor, an engineer, or otherwise would prefer personally to see the item in

respect of which his opinion is sought. But this will not always be possible, as most obviously in the case of a medical witness asked

to opine about the cause of death of a deceased and long buried person. In that particular context a protocol has grown up whereby

a doctor performing a post-mortem will record what he finds in very considerable detail specifically so as to permit another

practitioner to form his own, independent opinion. Dr. Jordan as a defence witness in a criminal trial will (as Fennelly J. has pointed

out) be enabled and entitled to raise possibilities properly arising on the evidence which may favour the defendant: there is no

suggestion that he is handicapped in doing so in the evidence before the Court.

5. The foregoing finding is sufficient to dispose of this case. However in all the circumstances and having regard to the not

inconsiderable number of “missing evidence” cases that come before the Courts I wish to say that the fact that relief is being denied

in this case does not support the proposition that it was legitimate to destroy or dispose of the motor vehicle involved in the

accident. It was not. It is never legitimate to dispose of or to lose, evidential material which may have a bearing on guilt or

innocence. Moreover, I note that one of my colleagues has very properly emphasised that the destruction of the vehicle in this case

was done in a routine way, and was certainly not done for the purpose of avoiding a professional inspection by or on behalf of the

defendant. I am quite prepared to accept that this is so. But I wish to stress that it is not an answer to a complaint that a defendant

has been denied evidence which carries a reasonable possibility of rebutting the case made against him, that the loss of such

evidence is due to blindly following routine, or simple failure to understand its significance, rather than out of malice. The test in these

cases as emerges clearly from the decisions cited and summarised in the judgment of Fennelly J., is whether there is a real risk of an

unfair trial. If there is no such real demonstrated risk, relief will not be granted simply to encourage the gardaí to retain evidence as a

general practice. Equally, if a real danger of an unfair trial is established, relief will not be denied simply because the gardaí were

faithfully if blindly following some procedure or routine. The granting or withholding of relief in these cases is not intended to be in any

way punitive or exoneratory of the gardaí or other investigators: the right to seek this relief derives from the right to a fair trial, that

is the sole consideration.

6. Finally, I wish expressly to agree with what Denham J. has said at paragraph 19 of her judgment under the heading “Best Practice”.

This is by no means the first exhortation which this court has given along these lines: exhortations to the proper custody to

evidentially significant items have come from the Court for the past five years or so without any apparent effect. If the eminently

practical and extremely straightforward suggestion of Denham J. were followed by gardai as a matter of routine, cases like the

present would be avoided. They are nearly always cases of some difficulty because, of course, an innocent defendant will protest

bitterly at the absence of possibly exoneratory evidence while, as I have said in another case, a guilty defendant will do his best to

imitate those sentiments. It is difficult to ensure that all innocent defendants will get relief and all guilty defendants will be refused it

because the Superior Courts, when their jurisdiction is invoked, must deal with these matters on a completely different basis, to that

of a trial Court.