Supreme Court dismisses appeal where lost car evidence does not prove unfair trial given eyewitness testimony.

THE SUPREME COURT

[Appeal No. 164 of 2007]

Denham J.

Hardiman J.

Fennelly J.

Between

Ciaran Savage

Applicant/Appellant

and

The Director of Public Prosecutions

Respondent

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

1. The background facts and the history of the proceedings have been explained and summarised in the judgment which has

been delivered by Denham J. I gratefully adopt them. I will refer to particular facts only where necessary.

2. The appellant claims that there is uncontroverted expert evidence that material destroyed by Gardaí and information they

failed to glean from that material could have assisted the defence in crucial and specific ways. In short, the appellant has

been deprived of the opportunity of having an expert examination of the motor car which he was driving at the time of the

accident which resulted in injury to and ultimately to the death of his passenger.

3. It is not disputed that the applicable threshold where an application is made to prohibit a criminal trial is that contained in

the judgment of Finlay C.J. in Z. v Director of Public Prosecutions [1994] 2 I.R. 476, which Denham J has cited in her

judgment. The burden of proof is on the applicant to show that he faces a real or serious risk that he will not have a fair

trial. That risk must be one which cannot be avoided by the trial judge by means of appropriate directions and rulings.

4. There is a comparatively novel jurisprudence concerning the effects of lost or missing evidence. The principal cases are

Murphy v Director of Public Prosecutions [1989] I.L.R.M. 71; Braddish v. Director of Public Prosecutions; [2001] 3 I.R.

127; Dunne v Director of Public Prosecutions; [2002] 3 I.R.305; Bowes v. Director of Public Prosecutions; McGrath v.

Director of Public Prosecutions [2003] 2 I.R. 25; Scully v. Director of Public Prosecution; [2005] 1 I.R. 242; and

McFarlane v. Director of Public Prosecutions [2007] I I.R. 134. Hardiman J delivered the principal judgment in all but the

first these cases.

5. The following is an attempt to summarise the principal points relevant to whether a court will make an order prohibiting a

trial.

a. It is the duty of the prosecution authorities, in particular An Garda Síochána, to preserve and retain all evidence, which

comes into their possession, having a bearing or potential bearing on the issue of guilt or innocence of the accused. This duty

flows from their unique investigative role as a police force. (Braddish at page 133). The extent to which that duty extends to

seeking out evidential material not in the possession of the gardaí does not arise in the present case (but see Dunne);

b. The missing evidence in question must be such as to give rise to a real possibility that, in its absence, the accused will be

unable to advance a point material to his defence. This is, like the garda obligation to retain and preserve evidence, to be

interpreted in a practical and realistic way and “no remote, theoretical or fanciful possibility will lead to the prohibition of

a trial.”(Dunne page 323);

c. The fact that the prosecution intends to rely on evidence independent of the missing evidence at issue in order to establish

the guilt of the accused does not preclude the making of an order of prohibition. In Dunne, the prosecution intended to rely

on a confession. This did not defeat the applicant’s complaint of the failure of the gardaí to take possession of a video tape

covering the scene of the robbery;

d. The application is considered in the context of all the evidence likely to be put forward at the trial. The court will have

regard to the extent to which aspects of the prosecution case are contested. In Bowes, the fact that the motor car in which

the applicant was alleged to have been travelling had been lost by the gardaí was insufficient, when the applicant did not

contest the fact that he was driving it and the charge related to possession of drugs found in the boot of the car. In McGrath,

the court had regard to the “circumstantial” character of the prosecution case of dangerous driving. In McFarlane, the

existence of photographic evidence of the missing fingerprints was highly material to the complaint that the original items had

been lost by the gardaí;

e. The applicant must show, by reference to the case to be made by the prosecution, in effect the book of evidence, how

the allegedly missing evidence will affect the fairness of his trial. Hardiman J said in McFarlane (page 144) that:

“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.”

f. Whether the applicant, through his solicitor or otherwise makes a timely request of the prosecution for access to or an

opportunity to have the articles at issue expertly examined may be highly material. In Bowes, the “very belated” request was

critical to the refusal of relief. On the other hand, in Dunne, no request was made until some five months after charge, and

long after there was any possibility of producing the video tape. In that case, however, Hardiman J stated (at page 325):

“There is……a responsibility on a defendant's advisers, with their special knowledge and information, to

request material thought by them to be relevant.”

However, a suspect or an accused person will be unable to make a timely request, if the gardaí have destroyed or

parted with possession of the material. Thus, they must give consideration to the likely interests of the defence

before making such decisions;

g. The essential question, at all times, is whether there is a real risk of an unfair trial. (Scully page 257). The court should

focus on that issue and “not on whose fault it is that the evidence is missing, and what the degree of that fault may be.”

(Dunne page 322).

6. In the light of these principles, I propose to consider the complaint in the present case. I do so bearing in mind that the

ultimate issue is whether there is a real risk that the appellant will not have a fair trial by reason of the failure of the gardaí to

preserve the motor car. In the present case, that question depends on whether the expert witness to be called on behalf of

the appellant will be less able to cast doubt on the prosecution case because he has been unable to inspect the car.

7. The first issue concerns the circumstances in which the car was disposed of. The date of the alleged offences is 3rd June

2001. The appellant was found by the gardaí trapped in the car more or less immediately after the accident. There is not and

could not be any issue but that he was the driver. The appellant was served with a notice of intention to prosecute for

various road traffic offences on 28th June 2001. The notice contained the following particulars:

1. Did drive the ….vehicle while the vehicle was seriously defective

2. Did drive the…vehicle at a speed in excess of the legal limit of 30mph in a manner which was dangerous to the public

3. Did drive at a speed given the vehicle defects which have rendered the vehicle uncontrollable.

8. The gardaí had the car destroyed, without reference or notice to the appellant, on 25th July 2001. The appellant was

himself seriously injured in the accident. He suffered a dislocated hip and serious head injuries.

9. Inspector Thady Muldoon has sworn an affidavit explaining that the motor car was destroyed “because the vehicle had

been inspected, had not been claimed by its owner and was in a dangerous condition.” He said: “The car was in three

separate pieces, was of no commercial value, the owner had no interest in same, at that stage the injured party was making a

recovery in hospital, and the vehicle was disposed of in the normal manner.”

10. The Inspector does not appear to have adverted at all to the fact that a necessary step, the service of notice of intention

to prosecute, in the initiation of a prosecution against the appellant had taken place. Less than four weeks after service of

that notice and before charging, the car was destroyed. At that stage, the defective condition of the vehicle was clearly going

to be material, even if that is no longer the case. The appellant was most unlikely to have engaged a solicitor. In my opinion,

the gardaí committed a breach of their obligation to preserve potential evidence. They ought not to have had the car

destroyed without considering the possible interests of the appellant. That conclusion, of course, does not determine the

matter. It is necessary to consider whether the appellant has established that he faces the real risk of an unfair trial by reason

of the absence of the motor car.

11. Here it is, of course, highly material that the prosecution, on 16th January 2003, notified the appellant that it would

proceed without tendering the evidence of the witnesses as to the condition of the car and that the condition of the car

would no longer be an issue. Thus, the prosecution is confined to alleging that the car was being driven in a manner,

including speed, which was dangerous to the public. It was presumably in response to this altered state of the prosecution

that the appellant filed two affidavits and reports from his engineering expert, Dr Mark Jordan.

12. Before turning to the expert evidence on which the appellant relies, it is material to point out that, unlike McGrath, this

is not a case based on circumstantial evidence. Firstly, there is clear evidence that the motor car which the appellant was

driving had been stolen on 2nd June. It belonged to a Frenchman living in Dublin. The book of evidence shows that there is

substantial eye-witness evidence, if believed by the jury, as to how the car was being driven immediately before the

accident. That evidence includes that of two gardaí in a patrol car. In summary, this evidence is to the effect that the car

was being driven at very high speed, that it was not slowing down and that the driver was losing control. There are five

civilian witnesses to support that general picture, though their evidence is in the main based more on hearing the sound of

the high revving of the engine.

13. Thus, the nature of the case the appellant is facing, assuming, of course, that the evidence in the book of evidence is

believed, is that, immediately prior to the accident he was driving a stolen car at high speed and going out of control to such

an extent as to attract the attention of two gardaí on duty and several civilian witnesses. The appellant will be fully entitled to

contest that evidence at his trial. This Court can only note its presence in the book of evidence and the extent to which the

appellant indicates that he wishes to contest it. He has not suggested that he contests any of the evidence of fact. I

emphasise that he remains entitled to do so at trial, but the present application must be considered on the assumption that

the evidence will be led by the prosecution.

14. The experienced expert engaged by the appellant proceeded, in his report, from the premise that: “This case involves the

collision of a car apparently driven by [the appellant] after apparent loss of control at Old Kilmainham on June 3rd 2001.”

15. Dr Jordan’s report, verified by his affidavit, explores the possibilities of causation of the collision of the car with the

lamppost. It is concerned only with the technical aspects. At no point does Dr Jordan refer to the independent evidence.

16. Dr Jordan’s report and affidavit contain a number of criticisms of the gardaí for their failure, as he sees it, to carry out

certain measurements, observations and calculations, for example failure to measure and record inflation pressure on the

tyres and to assess whether there was evidence of possible previous collision damage. These points have no bearing on the

question of prohibition of the trial, where, to the extent that they are sound or good points, the appellant will be fully entitled

to advance them at trial. They are relevant here only insofar as they tend to support the claim that the appellant is at a

disadvantage—that he risks not having a fair trial—because he cannot examine the car.

17. Dr Jordan concentrates, in his report, on three points. Generally, they relate to the possibility of establishing that the

accident was caused by physical defects in the car which a driver, particularly an inexperienced one, might reasonably not

notice.

18. The first concerns the suspension. In his report, he quotes the PSV inspector as reporting that the state of the

suspension was catastrophic, “with no damping at all in the rear, and anti-roll bar bushings in a poor state……” Dr Jordan

thinks that none of this would have been noticeable to a driver not well acquainted with the car. The brakes were equally

defective and, in Dr Jordan’s view, the inspector was correct in indicating that this would cause a braking imbalance. On

neither of these points does Dr Jordan suggest that the defence is at a disadvantage by reason of lack of opportunity to

examine the vehicle, presumably because the Inspector’s report sufficiently establishes facts upon which an opinion

favourable to the defence can be based. It is for the trial judge to give such rulings and directions as will enable these aspects

of the PSV Inspector’s report to be placed before the jury, without prejudicing the position that the prosecution is not

relying, as against the appellant, on the defective condition of the vehicle.

19. The second issue relates to the steering. Here Dr Jordan says that there are reasonable grounds for suspecting that the

PSV Inspector was incorrect in his opinion that the steering mechanism was intact before the accident. He says that he

would like to be in a position to verify this for himself. His report says:

“There was extensive damage at the front of the steering mechanism, and there was also significant

corrosion and wear in the suspension. This could implicate the steering mechanism and linkages to

the front road wheels such as to introduce the possibility of a disrupted linkage………leading to

loss of control.”

20. Clearly, there must have been extensive “damage at the front.” I cannot see, however, that this statement raises a

serious possibility of a pre-accident steering failure. At least it does not do so expressly. Having seen photographs of the

wrecked car, Dr Jordan swore a supplemental affidavit to the effect that, “if [he] had had an opportunity to examine the

vehicle, [he] would have been able to assert as a matter of strong opinion that it was not possible to come to a reliable

conclusion that the steering mechanism was intact prior to the collision.” Such a consequence of the loss of opportunity

to examine evidential material is far removed from what was involved in cases such as Braddish, where the video tape, if it

had been available, would, as emphasised by Hardiman J, have borne directly on the guilt or innocence of the accused. Dr

Jordan can go no further than to assert an uncertainty.

21. The third point is the possibility, raised by Dr Jordan, that the front right tyre blew out spontaneously on the bend before

the impact and that “this is what caused the loss of control.” He refers to the PSV Inspector’s view that the right front tyre

deflated due to impact and says access to the wreck would have allowed him “to exclude this possibility or indeed to

confirm its potential as a cause of the accident.” However, in his supplemental affidavit he refers to garda photographs

which had been exhibited in a further affidavit which had been sworn on behalf of the State. Referring to one of these

photographs Dr Jordan says that it provides “clues which indicate that the right front tyre may have deflated due to a blow-

out or sudden deflation (which may have deflated due to direct impact).” Although he suggests that the photographic

evidence is inadequate, being confined to an overhead view, and suggests that he would have been able to express a strong

opinion if he had been able to examine the tyres, I believe that Dr Jordan has not shown that he is significantly handicapped

by the absence of personal direct examination. In addition, I think it is always essential to consider the matter in context. A

particularly striking aspect of that context is the evidence of one eyewitness, Teresa Kenny. According to her statement, she

will swear that:

“I heard a real hard engine revving as the car was coming along – I turned to see if it was a robbed car. I could

see this car flying down the street as if it was out of control. It looked as if it was swerving from side to side. As I

was looking I heard a loud bang and the car seemed to explode…”

22. The interests of a fair trial demand that the prosecution case be heard and the prosecution witnesses called in the normal

way. Dr Jordan makes no attempt to explain evidence of this kind or to explain how it is consistent with the technical

possibilities he raises.

23. More fundamentally, arguments of this type raise real concern that applications for prohibition may transmute into a

type of criminal trial in reverse. A witness, particularly an expert witness, speculates as to possible explanations for certain

facts. It is perfectly permissible at a trial for the defence to call expert evidence as to the possible explanations for any aspect

of the case.

24. Dr Jordan, as an expert witness, suggests at least three alternative possible hypothetical explanations for the accident.

None is related to any evidence from the appellant. That is the appellant’s right. None relates to the body of independent

evidence, which is nowhere mentioned by Dr Jordan. In response to the specific question upon which he was asked to

report as to whether it was “reasonably possible that the impacts occurred in a manner other than suggested in the Book of

Evidence,” his report says: “It is possible.” His explanations for this conclusion do not, at any point, refer to the eye-witness

evidence.

25. It has not been shown to my satisfaction that the appellant will be unable to put forward these explanations at the trial.

The concern of Dr Jordan is to raise possibilities, which is a perfectly legitimate role for an expert to play at the trial. The

appellant has not, in my view, made out a sufficient case that he will not have a fair trial. I would dismiss the appeal.