Supreme Court dismisses appeal where applicant acted promptly despite Gardaí loss of evidence.

[2008] IESC 54

THE SUPREME COURT

311/05

Murray C.J

Denham J.

Hardiman J.

DENIS LUDLOW

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS and His HONOUR JUDGE MICHAEL O’SHEA

AppellantS

JUDGMENT of Mr. Justice Hardiman delivered on the 31st day of July, 2008.

1. Over the last number of years, the Superior Courts have had to consider a number of cases where persons charged with criminal

offences seek relief by way of judicial review because the gardaí have lost or destroyed evidence, or given items of evidence to third

parties who have themselves irretrievably lost or destroyed them. A representative sample of such cases are Braddish v. DPP [2001] 3

IR 127; Dunne v. DPP [2002] 3 IR 305; Bowes v. DPP; McGrath v. DPP [2003] 2 IR 25; Scully v. DPP [2005] 1 IR 242 and McFarlane v.

DPP [2008] IESC 7.

2. An earlier case on the same topic led to the seminal judgment of Lynch J. in Murphy v. DPP [1989] ILRM 171.

3. This series of cases featured missing evidence of various different kinds. The items in question were as small as video tapes and as

large as motor vehicles. From the pattern of losses it appears that An Garda Síochána have considerable difficulty in retaining items of

evidence in secure custody for any period of time. It is not clear, and it is not relevant, whether this difficulty arises from procedures

(or the lack of them) within An Garda Síochána itself or from deficiencies in the premises and facilities provided for the gardaí. The

pattern of cases led the Court to observe at p.41 of the report in McGrath, which was also a case of dangerous driving causing

death:

“Dangerous driving causing death is an offence whose seriousness has been underlined by the fairly recent increase of the

maximum penalty to ten years imprisonment. Experience shows that it is almost unique, amongst offences not requiring a

specific intent, in carrying possibility of a significant custodial sentence for a convicted person of good character. One

would hope that its very seriousness would, in future cases, ensure that items of manifest evidential potential are

properly preserved. These two cases tend to indicate that there may be a need for a more cohesive practise amongst the

gardaí in the preservation or disposal pre-trial of evidence which is potentially relevant to the defence in the criminal

proceedings. The adoption and observation of suitable guidelines might assist in avoiding pre-trial litigation of this nature”.

4. In the case of Bowes v. DPP, which was heard jointly with McGrath’s case in this court, the gardaí had lost a motor car which, the

prosecution said, had been used for the transportation of a significant quantity of drugs, and had been seized by the gardaí. In the

circumstances of the case the Court refused to prohibit the prosecution: when the matter proceeded in the trial court it transpired

that the gardaí had also (but separately) lost a considerable quantity of drugs, large in bulk and high in value, alleged to have been in

the car the defendant was driving, which had itself been lost earlier.

5. From the fact that “lost evidence” cases continue to come before the Courts it appears that there is a serious problem at least in

some units of An Garda Síochána in relation to the preservation of items of evidential significance.

6. There may have been a time when Road Traffic offences, even those involving fatalities, were regarded as not being criminal cases

in the true sense of the term and therefore perhaps were processed or investigated in a somewhat careless or superficial manner.

This is no longer the case. The considerable increase in the maximum penalty has already been noted. Only a newspaper reader’s

knowledge of the law is necessary to underline the fact that these are effectively the only sort of case where a respectable person

without previous convictions may go to jail for a significant period of years in respect of an offence with no requirement for specific

criminal intent. No doubt this is as it should be: certainly the public authorities pay for advertising which stresses this specific fact in

the interest of road safety, in ads where the besuited driver is led off to a dark cell, and a heavy metal door is ominously slammed

behind him.

7. These are not the only changes in the enforcement of Road Traffic laws. The days when the garda evidence was given from a

scrawled drawing in a note book, with all distances and times approximate only, have also passed away. Nowadays serious road traffic

accidents are investigated by highly trained and specialised accident investigators who are members of An Garda Síochána. The map

prepared in this case, for instance, is of a professional architectural standard, in total contrast to the crumpled scrawls one

remembers from bygone years. In many cases, of which this is one, there is no direct evidence presented of dangerous or deficient

driving: the evidence is entirely technical, indirect and leaves the offence to be inferred, so that any positive defence must be

technical as well. The defendant will often require to deploy expert testimony in making his defence. Even with this dramatically

increased sophistication, however, physical evidence continues to be lost or mislaid or given to a third party who subsequently

disposes of it, sometimes frustrating the work of this new, highly skilled cadre of investigators. This Court has given warnings and

advice on the subject, from my own words in McGrath (2003) to those of Denham J. in Savage just a few weeks ago: they have been

ignored.

Factual background.

8. In the present case the defendant, Mr. Ludlow, is charged with dangerous driving causing death and a number of summary

offences, some of which will be discussed below. It appears that on the 8th October, 2002, he was driving a lorry belonging to his

employer, a Mr. Snowden, at a place called Roscat, Tullow, Co. Carlow. A Renault Scenic was coming in the opposite direction, from

the direction of a place called Fighting Cocks. The accident occurred at about 2pm on that day: it was raining quite heavily and the

road surface was greasy. It had in fact been raining for most of the day.

9. According to the proposed evidence of the eye witnesses, neither vehicle was travelling particularly or excessively fast, and the

accident occurred when the lorry “slid on to its incorrect side of the road and collided with the deceased’s vehicle”. There is no

question of drink, drugs or fatigue, on the evidence.

10. In this collision the driver of the Scenic, Mr. O’Neill, sustained injuries as a result of which he unfortunately died three days later.

11. The whole of the case made against the applicant is that certain tyres on his vehicle were excessively worn: it is said that the

front right hand tyre was in this condition as was the right inner tyre at the rear. It is further said that “The overall effect of the

excessively worn tyres would contribute to the loss of direction control of the vehicle in wet road surface conditions”. This is

admissible as the PSV Inspector’s expert opinion. It can only be answered by expert testimony. If the defendant’s expert is to give

evidence on a footing of equality with the prosecution’s expert, he must have the opportunity to examine the items which the

prosecution’s expert examined. Otherwise the effect of his evidence will be undermined by the simple but devastating question “You

never saw the tyres, did you?”. His evidence would be merely speculation and could not hope to stand against that of an expert who

saw the relevant items.

12. The gardaí, including a qualified public service vehicle (PSV) Inspector examined the lorry on the road at or near the point of

impact in the presence of various people including the defendant and later, his employer. The garda evidence (Garda Morrissey) is

that “Before leaving the scene I issued Denis Ludlow with the oral warning in relation to his driving”. This is, presumably, the notice of

intention to prosecute mentioned in s.104 of the Road Traffic Act, 1961, as amended. It is not however alleged that there was any

mention of the condition of the tyres given to the defendant at that stage, though it was clear that they, like the rest of the vehicle,

had been carefully examined by expert gardaí.

13. The need to give this oral warning (that the question of a prosecution will be considered) has subsequently been removed by

statute. However, while it existed it could be complied with either by serving a summons within fourteen days of the action alleged to

constitute the offence, or by giving an oral warning within 24 hours or by serving a notice in writing stating “brief particulars of the

act or acts alleged to constitute the offence”. It is, therefore, significant that no mention of the state of the tyres is alleged to have

been made at the time, or for upwards of a year afterwards.

14. It is however clear to anyone reading the Book of Evidence that the whole of the case against the defendant is based on the

proposition that the tyres were excessively worn and that this would contribute to loss of direction control on the vehicle in the

conditions which pertained. It is also clear that the question of the state of the tyres as well as other topics was the subject of

questions to the defendant some days later, when he called to the garda station and he said in answer to questions that he had

walked around the vehicle by way of checking it when he collected it on the morning of the accident in Edenderry. Indeed, when

asked he said that “I walk around it every day doing a visual check for lights and tyres”. Asked about the PSV Inspector’s contention

that some tyres were excessively worn he said “I knew the tyre was low i.e. that the thread was low and that it would need changing

soon. But I didn’t think it was illegal all the tyres looked okay to me.

15. The defendant’s employer, Mr. Ray Snowden, asked whether Mr. Ludlow had ever mentioned to him about the tyres being bald

said:

“He might have mentioned the front tyre was wearing but I’m not certain”.

16. He also told the gardaí that he himself had been a haulier for 24 years and had previously been a mechanic. His opinion of the

state of the vehicle was that “The front right tyre was wearing more so than the left and this was also one of the complaints I had

for the garage. I did not think it was below the legal limit.” He said he usually checked the trucks every Saturday and he checked any

complaint made by the drivers.

17. Against the above background it is now necessary to consider the course taken by the legal proceedings brought against the

applicant.

The Prosecution.

18. At some date prior to the 24th July, 2003, and probably some months prior to that date, the applicant was served with a

summons alleging dangerous driving causing death on the 8th October, 2002, at Roscat, Tullow, against him.

19. On the 24th July, 2003, the applicant was returned for trial on this count alone to the Carlow Circuit Criminal Court on the 14th

October, 2003.

20. On the 29th October, 2003, the Carlow State Solicitor on behalf of the Director, wrote to the applicant’s solicitor saying that the

Director had directed two additional summonses relating to excessively worn tyres be added to the indictment pursuant to s.6 of the

Criminal Justice Act, 1951.

21. On the evidence, this was the first specific mention of what now transpires to be the entire factual thrust of the case against the

applicant - the state of the tyres. It occurred some twelve months and three weeks after the accident. In my view, though it would

have been clear to the applicant that the whole of his vehicle, not excluding the tyres, had been examined on the day of the crash

he had no reason until the 29th October, 2003, to consider that the entire thrust of the case against him would be based on the

state of the tyres. Nothing of the sort was said to him by the gardaí or the State lawyers.

22. What happened next is not entirely clear: no doubt the applicant and his solicitor took the advice of Counsel and perhaps others.

The solicitor had been told by the prosecuting solicitor that the case would not be proceeding in October 2003 due to other cases

having priority and would go to the next term, the Hillary term of 2004. On the 15th January 2004 the applicant’s solicitor, Mr.

Coonan, wrote to Dr. Denis P. Wood, a Consulting Engineer, asking him to investigate the circumstances of the case on the

applicant’s behalf. On the following day Dr. Wood responded requesting that the thread depth details of the tyres on the applicant’s

vehicle be made available to him and enquiring whether the truck tyres were available for inspection. The solicitor then wrote

promptly to the prosecutor’s solicitor seeking this information.

23. After two reminders the State Solicitor eventually replied on the 10th June, 2004, saying that he was still endeavouring to obtain

the information regarding thread depths from the gardaí. He also served additional evidence including a book of photographs and

additional statements. On the 18th August, 2004, the defence solicitor received further additional evidence being statements of a

Garda Morrissey and a Sergeant Prendergast, PSV Inspector, and additional photographs of two allegedly worn tyres. However, he

also stated that the tyres were not available for inspection as they had “remained on the truck and after inspection the truck was

returned to its owner”. The owner, Mr. Snowden, later confirmed this and said he had brought the truck with the tyres on it back on

the day of the accident or the following day and that he had shortly afterwards disposed of the tyres. He said he had not been

requested by the gardaí or anyone else to preserve the tyres. This was not contradicted.

24. It therefore appears that the tyres had been disposed of by the gardaí by returning them to Mr. Snowden on or about the 8th or

9th October, 2002. The central role attributed to the condition of the tyres in the accident was not, on the evidence, communicated

to the defendant until the 29th October of the following year, 2004, by which time the tyres had been already disposed of. Ten

months later the unavailability of the tyres was communicated by the prosecution to the defence, when they made a specific enquiry

and after some reminders.

25. The chronology of the judicial review proceedings will be dealt with below.

A duty to preserve evidence.

26. The learned trial judge aptly summarised the applicant’s principal case, at pages 7 and 8 of her judgment, as follows:

“It is pointed out that the main thrust of the case against the applicant is the allegation as to excessively worn tyres.

The sequence of events following the collision on the 8th October, 2002, was outlined. It was submitted on behalf of the

applicant that while he was present when the vehicle was returned through him to its owner he would not have been

aware of the significance of the tyres until he was charged in June 2003 at the earliest and perhaps not until served with

the Book of Evidence on the 24th July, 2003. By then the tyres were no longer available. It is argued that as a result of

the failure of the Director of Public Prosecutions to preserve the tyres the applicant has been left with no opportunity to

test or rebut the evidence of Sergeant Prendergast in relation to the thread depth on the tyre which is central to the

three charges in the indictment”.

27. It has been recognised for well over a century that the gardaí, as a police force, have both a right and a duty to take possession

of and retain any evidence which may affect the guilt or innocence of the accused person. This was established as long ago as Dillon

v. O’Brien and Davis (1887) 20 LR IR 300. This case has been cited with approval and respect on a number of occasions both in this

country and in the United Kingdom. It was an action for detinue of certain articles which policemen had seized at the time of an

arrest. The defendants said that the items were required as evidence to support certain charges. Palles C.B. upheld this plea saying

at p.317:

“But the interest of the State in the person charged being brought to trial in due course necessarily extends as well to

the preservation of material evidence of his guilt or innocence as to his custody for the purpose of trial. His custody is of

no value if the law is powerless to prevent the extraction or destruction of this evidence, without which a trial would be

no more than a empty form. But if there be a right to production or preservation of the evidence, I cannot see how it can

be enforced otherwise than by capture”.

28. Commenting on this passage in Dunne v. DPP [2002] 2 IR 305 at 324, I said that the right to retain items of evidential significance

gave rise to a duty to do so in an appropriate case, for the reasons set out in the report. In particular:

“The right (to take possession of and retain evidence) does not exist in a vacuum, but for a purpose. That purpose

relates to the due administration of justice. It follows from this that it must be exercised in an impartial manner and not

for the sole advancement of one side, or recklessly. I believe that these conclusions follow inexorably from the judgment

of Palles C.B”.

29. This judgment was referred to by Lynch J. in the leading case of Murphy v. DPP [1989] ILRM 71 in the following terms:

“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”.

30. In that case the applicant had been charged with stealing a car and with driving offences. The car was in possession of the

gardaí and the applicant’s solicitor had indicated a desire to examine and test the car, specifically for fingerprint evidence. But the

gardaí parted with the car without either examining forensically themselves or notifying the applicant’s solicitor that they intended to

part with it. This was held in the circumstances to amount to a breach of fair procedures. Lynch J. said at p.76:

“It may well be that nothing would have been discovered by the requested forensic inspection, but the applicant has

been deprived of the reasonable possibility of rebutting the evidence proffered against him. It is also clear that there is no

way in which this loss to the applicant of possibly corroborative evidence can now be remedied by any further inspection

of the car”.

31. I wish to express my specific agreement with the following passage of the learned trial judge’s judgment, at p.18:

“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 it was not possible to do so”.

32. This is a case where the defendant is charged with a criminal offence carrying a maximum sentence of ten years imprisonment.

The case against him is based wholly on a forensic examination of the tyres. Without, in my view, any fault on his part, the

prosecution’s forensic evidence will be given by a qualified and skilled expert whose evidence will be virtually impossible to rebut

because the defendant does not have available to him the tyres on an examination on which it is based. I do not see that the

defendant can be compelled to admit, or to assume, the accuracy of the prosecution’s expert evidence, measurements or

photographs and neither has it been suggested in evidence that the photographs permit one to gauge the precise depth of the thread

of the tyres. This is a case where a fraction of a millimetre may be the difference between guilt and innocence. If any experienced

lawyer asks himself or herself whether, if retained on behalf of the defendant, he or she would direct an expert examination of the

tyres, there can only be one answer. It would professional negligence not to do so in a case like this where the defendant’s livelihood

(he is a professional driver) and liberty may easily be at stake.

33. The foregoing conclusions are, in my opinion, strongly supported by a consideration of the Road Traffic Act (Construction

Equipment and Use of Vehicles) Regulations 1963. These provide at regulation 16(7):-

“No tyre used on a vehicle or trailer shall be excessively worn and, as respects pneumatic tyres on passenger vehicles

and goods vehicles –

(a) the requirement of this sub-article shall be deemed to be complied with in every case where the thread of the tyre

displays throughout its breath and around its entire circumference a pattern the relief of which is clearly visible and is at

least one millimetre in depth,

(b) the requirement of this sub-article shall be deemed not to be complied with in every case where no portion of the

thread pattern is clearly visible on the contact wearing area of the tyre under normal operating conditions or where any

portion of the fabric or carcass of the tyre is visible at any point on the contact wearing area under normal operating

conditions.”

34. These provisions have been amended, most relevantly by S.I. 358 of 1991. The effect of the amendment is to increase the thread

depth required to 1.6 millimetre. But the basic point is the same: a fraction of a millimetre may be the difference between guilt (of an

offence carrying a maximum sentence of ten years imprisonment) and innocence. The scheme of the legislation from 1961 onwards

was that stark: the requirement of the Article (as to the depth of the thread on tyres) “shall be deemed to be complied with” if the

depth of the thread is 100th of millimetre greater than a particular, specified depth. Otherwise, in a case like this, the defendant is on

risk of a long prison sentence.

35. The thrust of the prosecution’s case against the present application is a technical one. It is said that the applicant (the

defendant in the criminal proceedings) did not seek an examination of the tyres early enough; that he did not seek relief by the way

of judicial review soon enough after it transpired that the tyres had been disposed of; and that it should have been plain to him, by

virtue of his occupation, or to his employer, that the tyres were central to the case at a much earlier stage.

36. In my view all of these complaints by the prosecutor ring hollow. This is so especially if the time taken by the defendant to act is

contrasted with the time required by the prosecutor or the gardaí, professionals in the field, to attend to their part of the case. The

applicant is a lorry driver: it is said that it should have been obvious to him that the tyres were an important part of the case even

though the prosecutor and his professional advisers did not express the importance of the tyres until a date just before the 29th

October, 2003, more than a year after the accident. But, as the learned trial judge points out, it would appear from the statement of

the PSV Inspector, Sergeant Prendergast, that the significance of the tyres was clear to him on the day of the accident. If this is so,

it is quite indefensible that he or the garda authorities would part with the possession of the tyres without making any arrangement

for their preservation, if it is not so then I cannot see how the significance of the tyres ought to have been obvious to a lorry driver if

it was not obvious to a garda Public Service Vehicle Inspector.;

37. The question of the time from which a defendant in criminal proceedings should or can seek to be given sight of evidential material

has been debated in a number of cases, notably McGrath, cited above. There, a lady had been charged with dangerous driving

causing the death of a motor cyclist: shortly after she was charged she sought facilities for a consulting engineer retained on her

behalf to examine the motor cycle. It transpired that the guards had disposed of it before she was charged at all. In those

circumstances, the Court held:

“It is very difficult to regard time as running against her before the proceedings were commenced. Her only entitlement to

have the motor cycle examined arises from her right to a fair trial, which hardly arises until a decision to prosecute is

taken and communicated. At the time the gardaí parted with possession of the motor cycle, they did not think it

necessary to give notice of their intention to do so to the applicant presumably because they did not know that she

would be prosecuted and therefore did not consider that she was entitled to notice”.

38. I believe that this case was correctly applied by the learned trial judge in her decision under appeal.

39. In the present case, as in McGrath, the gardaí did not themselves dispose of the relevant item of evidence: they parted with it to

the owner or his agent and the latter disposed of it. But the distinction is not a significant one because the actual effect of their

parting with possession of the item was to make it unavailable to the defence when they sought it after the case had been

commenced. Nor do I consider it relevant that the owner of the vehicle, who disposed of it, was the applicant’s employer. He had

employed him only for a couple of weeks and that relationship, without more, does not constitute the employer as the agent of his

servant.

40. The prosecutor also points out that the risk of an unfair trial which the applicant must establish must be an unavoidable risk. He

points out that the trial judge, if the case proceeds, will be obliged to take any possible steps to mitigate any unfairness to the

applicant arising from the absence of the tyres. He does not, however, suggest any practicable step to that end which would be open

to the trial judge. All criminal cases must be tried on the evidence that is actually available, and not on the evidence that might have

been available had the gardai fulfilled their duty to preserve the evidence. The trial judge certainly could and presumably would point

out that the absence of the tyres was not the defendant’s fault. But he could not do more than this, in my opinion. All suggestions

that the judge can mitigate the unfairness caused by missing evidence encounter a number of apparently inescapable legal and logical

difficulties. Is it legitimate to ask the jury to acquit on the grounds that the evidence might have been different had the tyres been

preserved? In my view it is not. Is it legitimate to ask the jury to consider acquitting on the grounds that they may think the

defendant’s case would, or might, have been stronger had the tyres been preserved? Again in my view it is not. The answer to both

of these questions is dictated by the inescapable fact that any case must be tried on the evidence actually available. Here the

applicant’s case is precisely grounded on the difference between the evidence now available and that which might have been

available had the prosecution’s duty to preserve been complied with. If this difference is to be the ground of relief, it must be in these

judicial review proceedings and not at the trial, for the reasons given above.

Delay in Judicial Review Proceedings.

41. It appeared during the hearing that the prosecutor was placing his main reliance on this point. He says the applicant delayed too

long in taking judicial review proceedings and is therefore disentitled to relief. He does not allege that any practical consequence

much less any prejudice to the prosecution side occurred by reason of this delay but nevertheless seeks a dismissal of the case on

the grounds of it.

42. Order 84 Rule 21 of the Rules of the Superior Courts provides as follows:

“(1) An application for leave to apply for judicial review shall be made promptly at any event within three months from the

date when grounds for the application first arose, or six months where the relief sought is certiorari, unless the Court

considers that there is good reason for extending the period within which such application shall be made”.

43. In the present case, of course, it was quite impossible to make the application within any particular period of the destruction of

the tyres because of the fact that such destruction was not known to the applicant. When his solicitor wrote seeking an examination

of the tyres it took the prosecutor’s solicitor a period of about eight months to establish that they had been disposed of and were

unavailable. The reason for this, according to the prosecutor’s solicitor, was that he was awaiting information from the gardaí. The

defence solicitor sought access to the tyres on the advice of the Consulting Engineer retained by him.

44. The information which the solicitor eventually got from the gardaí was simply to the effect that the tyres had been returned to

the owner. It was then necessary to contact the latter and to establish what had happened to them.

45. The dilemma which this represented to the accused was an acute one. He was facing a charge carrying a maximum sentence of

ten years imprisonment and would be well advised to omit no reasonable steps in the preparation of the defence. It was no doubt

with this in mind that he instructed his solicitor to retain a consulting engineer. As the result of the non-availability of the tyres, it

was not now possible to get the latter to review the garda evidence by examination of the tyres. This was a vital step in any prudent

conduct of the defence.

46. The defendant could hope for legal redress against this disadvantage only by seeking judicial review. This is not a light step,

involving as it does the initiation of High Court proceedings at considerable expense with the certainty that the prosecutor would seek

costs against him if unsuccessful. Even if successful in the High Court, as he was, there was the risk of an appeal by the prosecutor,

as has in fact occurred, and the risk of further considerable expense. One knows nothing, from the evidence before the Court, of the

applicant’s financial standing save that he is a lorry driver by occupation but it must be clear that the initiation of High Court

proceedings is a matter which would require grave consideration and, almost certainly, involve taking the opinion of counsel.

47. In this case, the first inquiry about inspection of the tyres was made in January 2004. The defendant was not told that the tyres

had been returned to the owner until August 2004, after a number of reminders. He then required to follow up the position with the

owner, consider his position in light of the engineer’s requirements and, probably, the advice of counsel. He did this and obtained

leave to seek judicial review by order of Smyth J. dated the 10th December, 2004. Allowing for the time needed to establish what Mr.

Snowden had done with the tyres, the applicant seems to me to have taken about three months to get to Court.

48. In my view the applicant has acted reasonably promptly in all the circumstances of the case. His promptitude contrasts

favourably with that of the prosecutor, his servants or agents. I would consider it gravely unjust to deny him relief on this ground,

especially in circumstances where no prejudice is alleged by the prosecution and the latter took upwards of a year expressly to rely

on the deficiencies in the tyres which are now the whole thrust of the case, and some ten months to inform the defendant as to

what had happened about the tyres.

49. I would dismiss the appeal and affirm the order of the learned trial judge.