Supreme Court dismisses DPP appeal, holding lost evidence plus witness animosity creates unavoidable unfair trial risk.

[2008] IESC 67

THE SUPREME COURT

Appeal No: 324/05

Denham J.

Fennelly J.

Finnegan J.

Between/

Garrett O'Brien

Applicant/Respondent

And

The Director of Public Prosecutions

Respondent/Appellant

Judgment delivered the 16th day of December, 2008 by Denham J.

1. This is an appeal by the Director of Public Prosecutions, the respondent/appellant, "the D.P.P.", from the judgment and order of the

High Court (Peart J.), restraining the D.P.P. from prosecuting Garrett O'Brien, the applicant/respondent, "the applicant", on a charge

of dangerous driving causing serious bodily harm to another person on the 24th August, 2003, at Bray, Co Wicklow, and four other

offences arising out of the same incident.

2. The issue in the case is "lost evidence", and whether its absence creates a real risk of an unfair trial. The relevant law is to be

found in Murphy v. Director of Public Prosecutions [1989] I.L.R.M. 71; Bowes & McGrath v. Director of Public Prosecutions [2003] 2

I.R. 25; Savage v. Director of Public Prosecutions [2008] IESC 39; Ludlow v. Director of Public Prosecutions [2008] I.E.S.C. 54; Perry

v. Director of Public Prosecutions [2008] I.E.S.C. 58.

3. Brendan Maloney, solicitor for the applicant, swore the grounding affidavit for the application for judicial review, on behalf of the

applicant.

4. The Book of Evidence was served on the applicant on the 19th March, 2004, and he was returned for trial on that date.

5. In the Book of Evidence there is a copy of a statement of the evidence to be given by Paddy Moorehouse. It states:

"it was about 1.35 p.m. I parked the car on the verge of the pavement outside the Green Tree facing Cloverhill. I sat in

the car and my wife went into the shop. As I was sitting in the car, Stephen Downey came over to me on my side,

driver's side of the car, he said to his wife "I'll get a left home (sic) with Paddy, you go ahead” I said "get in Stevie". He

walked around the back of the car, I seen a car coming facing me, it was doing 45-50 miles an hour. I thought it was

heading for my car. It was a red maroon coloured car. I shouted "Stevie watch out". The car came towards me from the

Cloverhill side, Stevie was heading for the passenger front door, the car swerved in, I thought it was heading for me but it

was heading for Steve. I shouted at Steve "watch out Steve the O'Brien's" I recognised the driver of the red car as

Gareth (sic) O'Brien and the front passenger was Keith O'Brien, there was people in the back but I didn't recognise them.

The car hit Steve, my car started shaking. I heard Steve being dragged along. I was watching him, the red car pushed

Steve against my car. I got out and saw Steve lying on the ground, there was women screaming. Steve was folded up on

the ground, there was blood coming out of his head. I saw the car head down toward Ardmore Studios, down toward

Bray. I bent down to Steve and I started shouting 'Steve, Steve'. There was a good crowd gathered around him and they

were trying to talk to him someone came with two pillows and put them underneath his head. I don't know who they

were. Another woman got out of a car with a first aid kit, she started wiping the blood off Steve's head, arms and legs. I

dialled 999 straightaway (sic) and I rang Bray Guards straightaway (sic). A woman came over to me with a piece of paper

and a number written on it 00 D 81303, then the ambulance came and two patrol cars came."

6. Brendan Maloney deposed that he was informed by the investigating Garda, Garda Lisa O'Connor, on the first day of the sittings of

Wicklow Circuit Criminal court held on the 7th December, 2004, that the piece of paper with the number written on it had been lost by

the prosecution.

7. Brendan Maloney deposed:-

"I say that the loss of the piece of paper has deprived the Applicant of the opportunity of submitting this evidence for

testing by an independent handwriting expert so as to establish whether or not Paddy Moorehouse, the alleged recipient

of this evidence, was in fact the author of this piece of paper."

8. The woman alleged to have been the author of the note was not at the scene when the Gardaí arrived, nor has she been traced

since.

9. On behalf of the applicant there was a request for disclosure, the note being one of the documents sought. Brendan Maloney

deposed:

"I say that the Applicant denies the charges contained in the Book of Evidence and intends to plead not guilty at his trial.

I say that the history of the relationship between the Applicant's family and Paddy Moorehouse's family is relevant to the

case. I say that there is a long history of animosity and ill will between the Applicant and the Moorehouse family which in

the past has resulted in violence being resorted to. I say that the Applicant believes that Paddy Moorehouse is ill disposed

towards him. I say that the Applicant believes that the extent of the ill will towards him is such that Paddy Moorehouse

would have no qualms in nominating him as the culprit for serious criminal offences, and that this is what has occurred in

this case."

10. Brendan Maloney deposed that as solicitor to the applicant and members of his family he knew of events, which he related,

illustrating the animosity between the applicant and Paddy Moorehouse. He deposed that this gave rise to the applicant's claim that

Paddy Moorehouse has wrongly accused him of the offences before the Court, and is prepared to give evidence against him which is

untruthful.

11. Garda Lisa O'Connor deposed inter alia as follows:-

"2. I am a member of the Gardaí attached to Henry Street Garda Station in the City of Limerick. On August 24, 2003,

when I was attached to Bray Garda Station in the County of Wicklow, I attended at the scene of a traffic accident on

Herbert Road, Bray in the County of Wicklow, a public place. Garda Paul Spillane of Bray Garda Station was with me. We

had received a call while on patrol from Bray Garda Station at approximately 2.05 p.m. informing us about the accident

and we proceeded there immediately. When we arrived at the scene, we were informed by a woman whom I now know to

be Mrs Donna Downey of 16 Ard na Greine, Bray, that her husband Stephen Downey had been knocked down and had

been taken by ambulance to St. Columcille's Hospital.

3. I say that also present at the scene was a person whom I now know to be Paddy Moorehouse of 7A Oldcourt Park in

Bray who claimed to have witnessed the accident. He claimed that a motor car registration number 00 D 81303 was the

vehicle responsible for the damage and injury caused. He handed me a piece of paper on which was written the

registration number 00 D 81303. I placed that piece of paper in my notebook and proceeded to take further details of the

accident.

4. Two other persons whom I now know to be Ms Claire Behan of 44 Richmond Park in Bray and Ms Mary Hyland of 39

Ardmore Wood in Bray were also present at the scene when Garda Spillane and myself arrived.

5. I subsequently discovered that the vehicle with the registration number 00 D 81303 was registered to Rachel O'Brien,

who is a sister of the applicant herein. I therefore went to the O'Brien residence at 89 Cloverhill in Bray and spoke to

Rachel O'Brien. I informed her that I was investigating the accident that had taken place on Herbert Road and that it was

alleged that her brother, the applicant herein, was driving the said vehicle at the time. I asked her to let me view the car.

She replied that it was in the garage and that we could view it there. While I was viewing it I removed from my notebook

the piece of paper given to my by Paddy Moorehouse. The number on that piece of paper was the same as the

registration number of the car I was viewing, that is to say, 00 D 81303. I wrote that number in my notebook and

replaced the said piece of paper in my notebook. Paddy Moorehouse informed me that the number was written on that

piece of paper by a woman who claimed to have witnessed the accident. She was not at the scene when I arrived and Mr

Moorehouse was unable to give me any details about her.

6. I then explained to Rachel O'Brien that I intended to have the car technically examined. She stated that the applicant

herein was down the country and that she would not let me take the car away for examination unless I could produce a

warrant authorising me to do so.

7. Subsequently, having sworn an information before Jane Murphy, a Peace Commissioner, I obtained a warrant under

section 106 of the Road Traffic Act 1961 as amended. I returned to the aforementioned address at Cloverhill and seized

the vehicle with the said registration number for technical examination. While we were there, the applicant appeared

around a corner and said: "Rachel, Rachel, what's going on? I told youse they wouldn't wait a week, that they'd be up

later."

8. I say that on Monday August 24, 2003, the car with registration number 00 D 81303 and the car being driven at the

time of the accident by Paddy Moorehouse, a Toyota Avensis registration number 03 W 2715 were technically examined

by Detective Garda Pat Scully, a scene of crime examiner. Photographs taken during that examination have been disclosed

to the defence.

9. I say that on August 30, 2003, I went to the address at 89 Cloverhill in Bray, the home of the applicant. I informed him

that I was investigating an accident in which it was alleged that he was driving a motor car with the registration number

00 D 81303 and had deliberately knocked down Stephen Downey, causing him injury at Herbert Road in Bray on Sunday

August 24, 2003. I arrested him for an offence contrary to section 3 of the Non-Fatal Offences Against the Person Act

1997.

10. The applicant was conveyed to Bray Garda Station where he was detained pursuant to the provisions of the Criminal

Justice Act 1984, section 4. The applicant was interviewed by Garda O'Connor and Garda McGrath. The interview was

videotaped. A question and answer session was conducted and the answers were written down. The record was read

back to the applicant. He signed the record and his signature was witnessed by Garda McGrath and myself. At 11.25 a.m.

on that date, the applicant was photographed, fingerprinted and palmprinted by Garda McGrath. I was present when the

member in charge, Sergeant Jim Mannion charged the applicant on Charge Sheet 203998 with an offence contrary to

section 3 of the Non-Fatal Offences Against the Person Act 1997.

11. I say that a short time after the traffic accident described above, I was transferred to another Garda Station. Upon

my relocation, I mislaid the piece of paper which had been handed to me at the scene of the accident and upon which

the aforementioned registration number was written. However, I did enter the said number in my notebook on August 24,

2003, the date of the incident itself. I have carried out extensive searches for the piece of paper in question to but to no

avail."

12. The learned trial judge held that the potential unfairness caused by the absence of this piece of evidence is not something which

can be eliminated by anything which the trial judge may be able to say to the jury. He doubted whether the potential prejudice to the

applicant could be eliminated by the prosecution deciding not to call Paddy Moorehouse to give evidence. If he did not give evidence

of visual identification his credibility as a prosecution witness would not become an issue. The applicant wishes Paddy Moorehouse to

be called to give evidence, so that he can be questioned about the disappearing lady, and it can be established for the jury that

because of the animosity between his family and that of the applicant, he had fabricated the piece of paper to bolster the case

against the applicant. The applicant also believes that the other two witnesses are associates of Paddy Moorehouse.

13. The learned High Court judge considered whether the applicant is disadvantaged to the point of unfairness by the absence of the

piece of paper, and concluded that he must be:-

"since without the opportunity of establishing that the writing is indeed that of Mr Moorehouse, the applicant has no way,

other than denial in the witness box, uncorroborated by any objective testimony, that he was driving on the occasion. If

the conspiracy theory was substantiated I believe that its effect would not be confined to Mr Moorehouse's evidence but

has the capacity also to affect the credibility of the other two eye witnesses.

While I accept of course that a reasonable balance must be struck between the obligation of the prosecution to

prosecute and the right of the accused to defend him self or herself by all legal means, one must bear also in mind the

presumption of innocence which the applicant enjoys, and the onus of proof which is at all times upon the prosecution to

prove its case beyond a reasonable doubt. I am conscious of what was stated by Hardiman J. in Dunne v. DPP [2002] 2 IR

305 at page 323 when he stated:

"The emphasis, which is quite explicit both in Braddish v, Director of Public Prosecutions [2001] 3 IR 127 and in this

judgment, on the need for the obligation to seek out, and indeed preserve, evidence to be reasonably interpreted

requires, I hope, that no remote, theoretical or fanciful possibility will lead to the prohibition of a trial. But we are

not dealing with anything of that sort here."

The same is I believe true in the present case, the more so because of the ongoing feuding, not disputed in any

meaningful way by the Gardaí, between these two families. I believe that if the applicant had the opportunity to have the

piece of paper examined he would have the possibility, and that is all that should be required, to create in the mind of the

jury a reasonable doubt, in the event that his fear of fabrication in relation to this piece of paper is substantiated on

examination. He is therefore, on the balance of probabilities, handicapped in his Defence to the point of potential

unfairness."

The learned trial judge then granted the relief sought.

14. The D.P.P. has appealed against the judgment of the High Court, filing three grounds of appeal:-

a. That the learned trial judge erred in law by concluding that the applicant had demonstrated to the required standard of

proof that he ran a real and serious risk of being unable to get a fair trial by virtue of the loss of a piece of paper on

which there was allegedly written the registration number of the vehicle alleged to have been involved in the incident

leading to the prosecution herein.

b. That the learned trial judge erred in law by holding that the aforementioned piece of paper, as potentially admissible

evidence, was of such significance that its absence deprived the applicant of an adequate or fair opportunity to test the

credibility of a possible prosecution witness and thereby prejudiced his right to a fair trial.

c. That the learned trial judge erred in law in holding that the applicant had demonstrated actual prejudice in the conduct

of his defence to such an extent that it could not be cured or corrected at trial.

15. Oral and written submissions were delivered by counsel on behalf of the applicant and the D.P.P.

16. In Savage v. D.P.P. I found several principles relevant to cases of this type, as follows:-

"(i) Each case should be determined on its own circumstances.

(ii) It is the court's duty to protect due process.

(iii) It is the duty of An Garda Síochána to preserve and disclose material evidence.

(iv) This duty to preserve and disclose material evidence is to do so as far as is necessary and practicable.

(v) The duty to disclose and preserve, as qualified by Lynch J. in Murphy v. D.P.P., cannot be precisely defined as it is

dependent on all the circumstances of the case.

(vi) The duty does not require the gardaí to engage in disproportionate commitment of manpower and resources.

(vii) In the alternative to keeping large physical objects as evidence, such as motor vehicles, it may be reasonable in

certain circumstances for the gardaí to have a forensic report on the object.

(viii) The duty should be interpreted in a practical manner on the facts of the case.

(ix) If evidence is destroyed the reason for the destruction, whether bona fide or mala fide, is part of the matrix of the

facts, but it is not a relevant factor in the test to be applied by the court.

(x) All of the above are subject to the fundamental test to be applied by the court, that of "real risk" as described by

Finlay C.J. in Z v. Director of Public Prosecutions [1994] 2 I.R. 476 at p.506:-

'This Court in the recent case of D v. Director of Public Prosecutions [1994] 2 I.R. 465 unanimously laid down the

general principle that the onus of 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 (which in that case also was pre-trial publicity) he could not obtain

a fair trial.'

He continued 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 unavoidable unfairness of trial.'

(xi) The focus of the inquiry is on the issue of the fairness of the intended trial, and not on shortcomings in the garda

investigation. It is not a garda disciplinary process."

18. Decision

Applying the above principles to the circumstances of this case, I would affirm the decision of the High Court and dismiss the appeal.

This is an unusual case and its circumstances are exceptional. The factors to be considered in this case are coloured by the

relationship between the applicant and the witnesses.

It is clear that there is animosity between the family of the applicant and that of the witnesses. This animosity is a critical factor.

Thus it is not just a case where there is lost evidence. It is the lost evidence in combination with the pre existing hostility between

the applicant and the witnesses.

The lost evidence is a piece of paper with the number of Rachel O'Brien's car written upon it. Mr. Moorehouse claimed that it was

given to him by a woman who he said claimed to have seen the accident. However, she was not at the scene when the gardaí

arrived. Nor was Mr. Moorehouse able to give any details about her. Nor has she been traced since. The applicant clearly believes

there was no such woman and that is why he wishes the piece of paper to be forensically tested so that it could be used in cross-

examining Mr. Moorehouse.

An important factor is that the witnesses are connected to the applicant. This is not a case of an independent witness at an

accident. Nor is it a case of simply a lost item relating to a witness who is not connected to, or where there is no animosity between,

relevant persons.

The test to be applied is well settled. It applies to everyone, no matter what the circumstances. Applying that test in the

circumstances of the existing animosity, I agree with the learned High Court judge and am satisfied that there is a real risk of an

unfair trial which cannot be avoided by directions of the trial judge.

This is not a case which arises in circumstances where there is an independent witness at a scene of an accident. Nor is it a case

relating solely to oral evidence from members of groups who have animosity for each other. Nor is it simply an issue of lost evidence.

It is a case which is unique because of the feature of lost evidence and the oral evidence anticipated which would be from persons

who are hostile to the applicant.

Consequently, I would affirm the judgment and order of the High Court and dismiss the appeal.