Supreme Court dismisses appeal regarding failure to test fingerprints, upholding criminal trial rights despite missing evidence.

THE SUPREME COURT

[Appeal Nos: 416/2008 & 433/2008]

Denham C.J.

Hardiman J.

O’Donnell J.

Clarke J.

MacMenamin J.

BETWEEN:

Jason Wall

Appellant/Applicant

-and-

The Director of Public Prosecutions

Respondent

Judgment of O’Donnell J. delivered on the 11th day of December 2013.

1. It is now more than eight years since a car driven by one young woman, and in which four other young people were passengers,

was involved in a fatal car crash at Church Road, Ballybrack, County Dublin, which resulted in the death of one of the passengers,

Emma Wall, the cousin of the applicant herein. It appears, at least for present purposes, that any innocent mechanical explanation for

the collision can be excluded and that the immediate cause of the collision was the fact that the car in which the young people were

travelling was suddenly steered onto the incorrect side of the road and collided with an oncoming car. If the car was caused to

swerve onto its incorrect side of the road then, at least prima facie, criminal liability could attach to the actor responsible for that.

The fundamental question in this case would appear to be who was responsible for that manoeuvre. Here, as set out in the judgments

of my colleagues, there is evidence in the shape of statements from two of the occupants of the car that the immediate and

proximate cause of the car swerving onto the incorrect side of the road was that the applicant Jason Wall, then a rear seat

passenger, reached between the front seats and grabbed the steering wheel of the car causing the driver to lose control.

2. When there is evidence from which criminal wrongdoing can be deduced the Irish legal system, established under the Irish

Constitution, provides an elaborate, well understood, and I believe well trusted, system for the trial of the issue of the guilt or

innocence of an accused person. That not only involves the preparation and presentation of a charge, but also a trial of the issues of

fact and law “in due course of law” under Article 38 of the Constitution which requires, inter alia, a trial which accords with fair

procedures conducted before an independent tribunal (which in this case as in the case of all but minor offences and those triable by

special courts will be a judge with a jury drawn from a representative sample of the population) and where in any serious matter, legal

aid will be provided if the accused person is not able to make provision for legal assistance from his or her own resources. In such a

trial the determination of facts will normally occur only by reference to admissible evidence and the onus of proof is on the

prosecution to prove guilt which will only be found where it is established to the satisfaction of the factfinder, beyond any reasonable

doubt. Any conviction arrived at can be appealed to a court which will either rehear the matter (where it relates to a summary trial)

or to a court which will review the proceedings in the trial court. All of this and more is, I consider, comprehended by trial in due

course of law pursuant to Article 38 of the Irish Constitution and the administration of justice generally under Article 34.

3. But no Article 38 trial of the serious issues arising in this case has yet occurred. If the appellant succeeds in this case no such trial

will take place. If his appeal is rejected however, the trial may commence but at a long remove in time from the events of August

2005 with all the undesirable consequences for the availability of witnesses, the state of the memory of such witnesses who are

available and the general degrading of evidence which is now well recognised. Neither outcome can be said to be intrinsically

desirable. It may however be the case that such an unattractive Hobson’s choice is the price that must be paid for a system which

maintains the values of demonstrable fairness. There are many circumstances in which the administration of justice requires a price to

be paid in terms of efficiency and in terms of the pursuit of wrongdoing, in the interests of fairness. But it is, at least in my view, a

legitimate question whether the heavy price exacted is an unavoidable requirement of the constitutional guarantee of a trial in due

course of law.

4. The claim in these proceedings which was required to be determined before any trial could take place (if at all) was that the failure

of investigating gardaí to obtain evidence in the nature of a fingerprint test from the steering wheel of the car, or perhaps put

another way, the release by the gardaí of the crashed motor car from their custody without any fingerprint test having been carried

out on the steering wheel, meant that there was a real risk of an unfair trial, and accordingly, that no trial at all could take place.

This type of contention will be immediately familiar to anyone with even passing familiarity with the decisions of these courts in recent

years. Cases involving lost evidence, or missing evidence, or variants thereof, have become a very familiar feature of litigation in the

Superior Courts, notably since the landmark case of Braddish v. Director of Public Prosecutions [2001] 3 I.R. 127.

5. It has been said that in this fact-intensive and fact-dependent area, each case depends on its own particular facts. In this case

MacMenamin and Hardiman JJ. have engaged in great, indeed meticulous, detail with the facts as disclosed or as may be deduced

from the affidavit evidence, and have conducted considerable research, albeit coming to very different conclusions. While I admire the

considerable rhetorical force of the judgment delivered by Hardiman J and respect the sentiments which underlie it, I have come to

the conclusion that I agree with the judgment of MacMenamin J. in this admittedly difficult case. Normally, it would be sufficient to

simply record my respectful agreement with the majority judgment. But my experience of this line of authority culminating in this case

has led me, with greater clarity and conviction if anything, to the conclusion that the line of authority which has generated so many

decisions in the Superior Courts in recent years deserves a comprehensive re-examination. I readily acknowledge that these matters

were not argued in this case, and my observations are therefore tentative and may be subject to reconsideration if and when the

matter is fully argued. However, I consider that these matters require to be raised and deserve full and focussed scrutiny in an

appropriate case.

6. It is not normally a function of a final court of appeal to conduct a meticulous examination on a case by case basis of the

discernible facts of individual cases which have not yet come to trial. A line of jurisprudence which has as its central principle the

proposition that each case must be determined on its own individual facts, is a line of jurisprudence which guarantees that many, if

not all, such individual cases will inevitably reach the High Court and this Court on appeal, with all that involves in terms of the delay

of criminal trials on the one hand, and the use of scarce resources on the other. This meticulous examination of the facts alleged to

be in issue in individual cases occurs in a context where the jurisdiction in this and similar cases is one which is supervisory and, it is

said, exceptional. This examination by reference to affidavit evidence takes place even though there exists a well developed, carefully

and finely calibrated, mechanism for the trial of offences involving the testing of evidence, the determination of facts on oral evidence

by well established standards, and a comprehensive review on appeal, which it might be thought more naturally adapted to the

ascertainment and evaluation of facts and the particular task of ensuring the fairness of criminal trials. In my view, a consideration of

this line of authority gives rise to a number of questions.

Why is the issue of missing evidence (and/or delay) dealt with by way of judicial review?

7. Scrutiny by way of judicial review in anticipation of a trial has obvious practical and unhelpful consequences both in terms of the

delay of any trial, and the consequential increase in burden upon the Superior Courts. It thus requires to be justified. However, even

assuming a perfectly resourced system both in trial and appellate courts –and that is an ideal unlikely ever to be achieved in practice

– there are other significant problems with the system of judicial review when used to determine issues relating to missing or lost

evidence. Judicial review is a system designed, or at least intended, to provide a speedy determination of issues relating to the

jurisdiction of inferior courts. It is well adapted to determine precise issues of law. It is poorly adapted for the resolution of factual

matters, particularly when those issues are to be determined in advance of a trial and through the imperfect lens of affidavits

necessarily drafted by professional advisers and which, perhaps understandably, seek to maximise that party’s case while exercising

caution about revealing testimony capable of being deployed against the party in the event that a trial might ensue. Looked at from

the vantage point of function and efficiency, it might be thought that the examination of facts and the impact of the presence or

absence of such facts upon the fairness of a trial should take place in the trial court with the possibility of review on appeal.

However, currently, such claims are addressed by judicial review. If the Constitution or more general principles of fairness demands

that this be so, then it must indeed be so. But it is a process which, at a minimum, requires justification.

8. The doctrinal source of what appears to be a jurisdiction unique to Ireland, whereby questions of missing and lost evidence are

adjudicated in advance through the mechanism of judicial review, is a single short passage in the judgment of this court in The State

(O’Connell) v. Fawsitt [1986] I.R. 362. That case involved a challenge to a case then awaiting trial in Cork Circuit Court not on

grounds of missing evidence but because of the undue delay in securing a trial date, and a consequent alleged prejudice caused by

the absence and unavailability of witnesses. The context of the case, it appears, was a lack of resources and growing delays in

particular at Circuit Court level rather than any more general principle.

9. In the High Court Murphy J., having carefully reviewed the case and case law both domestic and international, refused prohibition.

He considered it important that the delay in question was largely located in the delay in having a case listed for hearing and

therefore, only occurred after adjournment applications made to, and considered by, the trial court. It followed therefore that the

delay was at least being monitored by the court. He expressed the view that the trial court should, at least in the first instance, deal

with the question of the impact on the case of such delay. He continued:

“… not only would the judge have been conscious of these factors but he would have been well aware of the powers

which a trial judge would have had to give appropriate warnings or direction to the jury to prevent any injustice arising

as a result of any such defect. Indeed in granting any application for an adjournment or in permitting the trial to

continue at any time in the future a judge of the Circuit Court has the same duty as this court to recognise and

vindicate the constitutional rights of the accused. Accordingly, if the learned Circuit Court judge is satisfied that, in all of

the circumstances of the case as established before him, that the delay was excessive or unduly prejudicial to the

prosecutor, it would be the right and duty of the Circuit judge to dismiss the pending charges and I have no reason to

doubt that he will adopt that course if it is appropriate so to do. In recognising the rights, powers and duties of the trial

court I do not intend in any way to abdicate the functions or duties of this court. Rather I am concerned that the case

made on behalf of the prosecutor involves a combination of arguments and propositions some of which involve

differences of emphasis if not indeed disputes of facts; others are based upon problems which are anticipated but either

may or may not materialise or may be resolved at or prior to the trial. It is only the delay which is an undisputed

objective fact and even in relation to that I believe that it would be preferable for the court which granted the

adjournments from time to time to deal with the matter in the first instance at any rate.” (p. 374)

10. The Supreme Court reversed the High Court decision and allowed the appeal. In a short judgment, Finlay C.J. (with whom Walsh,

Henchy, Griffin and McCarthy JJ. agreed) quoted a portion of the judgment of Murphy J., including the passage set out above up to

the words “I have no reason to doubt that he will adopt that course if it is appropriate so to do”. The essence of the decision of the

Supreme Court is to be found in a subsequent paragraph of the judgment which it is desirable to set out in full:

“I have come to the conclusion that, in this portion of the judgment, the learned trial judge was in error. I am satisfied

that if a person’s trial has been excessively delayed so as to prejudice his chance of obtaining a fair trial, then the

appropriate remedy by which the constitutional rights of such an individual can be defended and protected is by an order

of prohibition. It may well be that an equal remedy or alternative remedy in summary cases is an application to the

justice concerned to dismiss because of the delay. In the case of a trial on an indictable charge, however, I am not

satisfied that it is correct to leave to the trial judge a discretion as to whether, as it were, to prohibit himself from

letting the indictment go forward or whether to let the indictment go forward. A person charged with an indictable

offence and whose chances of a fair trial have been prejudiced by excessive delay should not be put to the risk of being

arraigned and pleading before the jury.” (emphasis added) (p. 379)

11. It is not apparent why the uncontroversial conclusion that judicial review, is capable of being an appropriate remedy in cases of

missing evidence or delay, should necessarily lead to the conclusion that it is the exclusive remedy. Furthermore, the rejection by the

Supreme Court of the High Court’s reasoning in The State (O’Connell) v. Fawsitt relying on the capacity and indeed duty of the trial

judge to guarantee the fairness of the trial, is not easy to reconcile with subsequent repeated statements in this court emphasising

the role of the trial judge in ensuring such fairness: See for example Dunne v. Director of Public Prosecutions [2002] 2 I.R. 305, p.

336, per Fennelly J.; and D.C. v. Director of Public Prosecutions [2005] 4 I R. 281, p. 283, per Denham J.; and indeed the judgment of

Finlay C.J., in Daly v. Director of Public Prosecutions (11th April 1994) in which he appeared to endorsed similar observations made by

the High Court judge in that case as to the duty of a trial court to ensure fairness. Nor is it readily apparent what logical justification

there is for the distinction drawn between trials in the District Court and trials on indictment, both of which are required to adhere to

the constitutional standard of trial in due course of law.

12. The logic of the decision in The State (O’Connell) v Fawsitt, in identifying judicial review as the exclusive remedy, also leads to an

unusual situation where it is sought to challenge trials occurring in the Central Criminal Court on the grounds of missing or lost

evidence or indeed delay. Since the basis of judicial review is the power of the High Court to exercise control over inferior courts and

tribunals acting in excess of jurisdiction, such review is not available in respect of decisions of the High Court itself. Accordingly it has

become the practice that an applicant in such a case seeks instead to prohibit the Director of Public Prosecutions from continuing

with such a trial. But at least from a conceptual level, this seems to blur the distinction between the prosecutor and the trial court.

There is much to be said for the observation that prosecutors prosecute cases, trial courts try cases, appeal courts hear appeals,

and the Superior Courts have a residual power of review whether by way of prohibition in advance, or certiorari afterwards, and it is

unhelpful to confuse those roles. It is the court not the prosecutor which has the obligation and the jurisdiction to conduct the trial.

13. Indeed, while it is not necessarily a touchstone for the correctness of any result, I consider that if the trial courts had a

jurisdiction to dismiss an indictment or stay a prosecution on grounds of missing or lost evidence, that could also be in the interests of

all parties including potential defendants. There is much to be said for a situation where the decision as to whether or not a trial can

be conducted fairly is made by the very person under a duty to ensure that if such trial proceeds it will be fair in fact, and not just in

theory, and who furthermore can keep that decision under review as a case develops. Also, the division of function which the current

law permits between Superior Courts exercising what is now recognised as exceptional jurisdiction in advance of trial, and a residual

jurisdiction in a trial court, can be unhelpful. A trial court, when or if, it comes to address questions of unfairness by reason of the

absence of evidence, may feel constrained by the prior determination on the judicial review. There is much therefore, to be said at

both a practical and theoretical level, for the trial court having the initial jurisdiction to determine the impact on the trial of the

absence of evidence.

14. Since I agree that the experience of other common law jurisdictions can shed valuable light on issues which are required to be

determined by this court, it is, I think, significant that in other jurisdictions, such as, Northern Ireland (R v. Mc Nally and Mc Manus

(2009) N.I.C.A. 3; R v Glen [ 2003] NIJB 99), England and Wales (R (Ebrahim) v. Feltham Magistrates Court [2001] E.W.H.C. Admin

130), Australia (Jago v. District Court of NSW (1989) 168 C.L.R. 23 and The Queen v. Edwards [2009] H.C.A. 20), New Zealand

(Hazlewood v. The Queen [2013] N.Z.C.A. 406) and of course the United States of America (Brady v. Maryland 373 U.S. 83 (1963),

California v. Trombetta 467 US 479 (1984) and Arizona v. Youngblood 488 U.S. 51 (1988)), it appears that the issue is addressed by

motion or application at or in the trial, and then is subject to appeal in the ordinary way. Irish law however, requires the matter to be

addressed primarily and almost exclusively, through what might be thought to be the imperfect and ill adapted lens of judicial review

on the basis of affidavit evidence alone. That position, in my view, requires detailed analysis careful scrutiny and justification.

What test should be applied?

15. Wherever the issue of the impact of missing evidence on the fairness of a trial is to be determined it is also necessary to

determine the onus, and perhaps more importantly, the standard, of proof. It appears that the onus lies upon the applicant, and

currently that obligation is to establish “a real risk” that the applicant could not obtain a fair trial (see Finlay C.J. Director of Public

Prosecutions v. Z [1994] 2 I.R. 476 cited in C.D. v. Director of Public Prosecutions [2009] IESC 70 by Fennelly J.). As was observed in

C.D. the test is subject to the important qualification addressed in Director of Public Prosecutions v. Z namely that:

“…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.” (Finlay C.J. in Director of Public Prosecutions v. Z at p. 507

and cited by Fennelly J. in C.D. v. Director of Public Prosecutions at para. 18)

16. I recognise that superficial differences of language may have little impact in substance, particularly when applied in a context

which places such emphasis on the response of the judge to the individual facts of the particular case. Debates about the precise

formulation of a legal test, much loved by lawyers, can easily become sterile. Nevertheless, it is worth observing that there is a

potential confusion in the test which is applied, with at least the possibility of a significant difference in the standard applied in

different cases. Thus, for example, in the case of Daly v. Director of Public Prosecutions, referred to above, the Supreme Court,

dealing as it happened with a question of a failure to obtain fingerprint evidence from a steering wheel, referred to the test from D. v.

Director of Public Prosecutions [1994] 2 I.R. 465 and Director of Public Prosecutions v. Z. in terms that “the court can and should

intervene if but only if there is an unavoidable or inevitable unfair trial to be seen as occurring, one which cannot be avoided by

directions and proper charges given to a jury by a trial judge”. This is capable of being a somewhat different, and more exacting, test

than the “real risk” formulation. The tension is encapsulated in a portion of the judgment of Hamilton P. in Director of Public

Prosecutions v. Z. as follows:

“When is a court justified in intervening with the usual criminal law process by granting a permanent stay of criminal

proceedings and what is the standard of proof which the court should require from the applicant for such an order based

on his allegation of the likelihood of an unfair trial? These questions were considered by the Supreme Court in the D. v.

Director of Public Prosecutions hereinbefore referred to. In the course of his judgment in that case, the Chief Justice

stated at p. 467 of the report:

“…the standard of proof which the court should require from the applicant in this case concerning his allegation of the

likelihood of an unfair trial is that he should be required to establish that there was a serious risk of that occurring.

This standard of proof was accepted by the other members of the Supreme Court.

In the course of his judgment in Jago v. The District Court of New South Wales, Chief Justice Mason stated:

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

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

consequences.”

Hamilton P., in Director of Public Prosecutions v. Z, continued:

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

494)

While this last observation is perhaps correct, it rather inverts the natural conclusion which might be drawn from the two passages.

The absence of a phrase such as “real or serious risk” in the formulation of Jago might more reasonably be thought to demonstrate

that the two tests are different, and indicate therefore that some analysis is required to determine if such distinction was intended

and if so, justified.

17. It may be arguable that the test of a “real risk” of an unfair trial, particularly in the context of anticipatory judicial review, sets

the test too low. If there is a real risk of an unfair trial, there is nevertheless a real probability of a fair trial. Why should that fair trial

be prohibited? Put in simple mathematical terms, I would consider a 30% risk of an event occurring to be a “real risk”. Nevertheless

that means that 70% of the time that risk will not supervene. If the decision is to be taken on a once and for all basis, where there is

no control over the outcome, then it might be readily accepted that the concepts of fair procedures, fair trial and the administration

of justice, might all lead to the conclusion that such a risk is unacceptable. But that analysis does not address the position of the trial

judge whose role it is to uphold the constitutional guarantee of a fair trial and that of the court of appeal whose function it is to

correct errors at the trial stage. The test of “real risk” is not one which is applied in other circumstances in which it is sought to

prohibit a trial. It is, for example, not unknown for parties to seek to prohibit trials on the grounds that the offence does not exist, or

that the statute creating it is unconstitutional. In any such case, I do not apprehend that the court could apply a test of “real risk”

of unconstitutionality. Instead, a court would require it to be demonstrated as a matter of law that the offence or procedure was

unconstitutional.

18. As the judgments referred to above indicate, the test of “real risk” can itself be traced to D v. The Director of Public

Prosecutions. As that case in turn make clear, the test was imported from that used the context of extradition cases, and the

controversial decision in Finucane v. McMahon [1990] 1 I.R. 165. The difference in context is however significant, and might benefit

from scrutiny and analysis.

19. The factual underpinning of Finucane was that there was an allegation that the extradition of the appellant should be refused

because it was alleged that his constitutional rights would be violated in the jurisdiction to which it was sought to extradite him. Such

a claim was necessarily anticipatory. More importantly, the theory on which the case was decided, involved the twin propositions

(which it is not necessary to analyse in this case) that the Constitution protected rights of the citizen outside the jurisdiction, but

that there was nothing an Irish court could do, once the person was extradited, if his constitutional rights were indeed violated in any

way. It therefore made sense in that context to apply a test of “real risk” of a breach of constitutional rights. But that situation is

not immediately comparable to an application to restrain a trial being conducted in the jurisdiction where it is presided over by a judge

whose duty it is to uphold the Constitution and the laws and where the decision of that trial court is subject to appeal. In that

context, the test of “real risk” of a fair trial arguably sets too low a test. The prohibition of a fair trial is not itself consistent with the

administration of justice. As O’Higgins C.J. observed in In the Matter of The Criminal Law (Jurisdiction) Bill 1975 [1977] I.R. 129 the

phrase “due course of law” in Article 38 “requires a fair and just balance between the exercise of individual freedoms and the

requirements of an ordered society” (p. 152). There are a number of possible formulations of the test, and in my view it would be

desirable for the matter to be carefully considered and authoritative guidance given.

Is there a duty to seek out evidence, which if breached may lead to the prohibition of a trial?

20. It is possible to either analyse this case as one which can be characterised by evidence (the steering wheel and/ or the car)

which is in the possession of the gardaí and is lost (as Hardiman J. does), or one in which evidence (in this case fingerprints) is not

obtained although, on an objective analysis, it ought to have been (as per MacMenamin J.). On balance I prefer the approach of

MacMenamin J. The steering wheel is not evidence itself or at least cannot be said to be either inculpatory or exculpatory evidence,

per se. It is however, an item from which evidence may be obtained. Whether or not this particular case is to be analysed as a failure

to seek out case is not however my present concern. It is apparent that there are two categories, although the dividing line may be

blurred and contestable in particular cases, and therefore a question arises as to the justification for prohibition of trials where it is

alleged that there has been a failure to seek out evidence.

21. In Braddish v. The Director of Public Prosecutions it was held, obiter (Hardiman J.; Denham and Geoghegan JJ. concurring), that

the gardaí were under a duty, arising from their unique investigative role, to seek out and preserve all evidence having a bearing or

potential bearing on the issues of guilt or innocence. That was so whether the prosecution proposed to rely on the evidence or not,

and regardless of whether it assisted the prosecution’s case or not. The material itself had to be preserved and disclosed and any

notes or records of it could not be destroyed or rendered unavailable. This duty was derived in part from the decision of Chief Barron

Palles in Dillon v. O’Brien & Davis (1887) 20 L.R.Ir. 300. The test of what material must be sought out, obtained and retained was to

be interpreted in a practical fashion, but guidance was to be obtained from the leading Irish case on discovery in civil proceedings,

Sterling-Winthrop Group Ltd v. Farben-Fabriken Bayer Aktiengesellschaft [1967] I.R. 97, where it was held that every document

related to a matter in question, which not only would be evidence, but also which contained “information which may – not which

must – either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of

his adversary” (p. 102) Although obiter in this respect, Braddish was approved and applied by a majority in this court in Dunne v. The

Director of Public Prosecutions (Hardiman and McGuinness JJ.; Fennelly J. dissenting) where McGuinness J. may have qualified the test

somewhat in acknowledging that Fennelly J.’s anxieties in dissent were reasonable and dangers did exist. It was essential therefore

that the duty on the part of gardaí to seek out relevant evidence should not be too widely interpreted. Citing the judgment of

Hardiman J. in Braddish, she approved the statement that “the duty must be interpreted realistically on the facts of each case” (p.

309). This qualification, understandable in itself, may risk introducing a further level of uncertainty into an already notoriously difficult

test and thus increasing the chances of protracted applications for judicial review, and appeals to this court, with consequent delays.

If this can be demonstrated to be an unavoidable consequence of a trial in due course of law then it must be accepted

unhesitatingly, but, at a minimum, the conclusion deserves some thoughtful scrutiny.

22. It is sometimes said that the jurisprudence in relation to failure to seek out evidence is not of recent origin but dates back to the

1880s and follows inexorably from the judgment of Palles C.B. in Dillon v. O’Brien & Davis. I am not sure that this is so and would wish

to have the question more closely analysed before accepting it. Dillon v. O’Brien & Davis is a case, itself reflective of the turbulent

history of its time, in which police officers seized and retained evidence in the nature of books and money at the time of executing a

warrant for the arrest of the plaintiff on a charge of conspiring at common law to solicit tenants in breach of their contracts to refuse

to pay to the owners of farms the rent lawfully due. Such an offence was a misdemeanour at common law. The plaintiff sought to

recover the material seized by commencing civil proceedings by way of an action in detinue. The issue determined in the case was

the entitlement of the police to retain the items seized in the course of an arrest for a misdemeanour, it being accepted that such

power existed in the case of arrest for felony. The court (Palles C.B., Dowse B. and Andrews J.) rejected the plaintiff’s claim. The

Chief Baron stated:

“…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 the trial. His custody is of

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

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

can be enforced otherwise than by capture.” (p. 317)

23. Dillon v. O’Brien & Davis is an important common law case establishing a right to detain items of evidential value found during the

course of a lawful arrest. The entitlement of the police to do so can be described as a right, as indeed it was in Dillon, or a power,

duty or function, and any such description would suffice for the purposes of the case which established that the police seizing

material on arrest had a defence to a claim for detinue. It is not clear that Dillon establishes any duty owed to the public to seek out

evidence, although I would willingly accept that such is, in general terms, the public duty, function, power and task of police

investigating a crime. But the more important issue, not considered at all in Dillon, is what consequences follow from a failure to

perform that duty or function, or to exercise that power. It would be a large step to deduce from a duty owed to the public, any

common law duty to any individual in private law actionable in the case of breach. Recent authorities suggest that a private law duty

is not necessarily to be derived from a public duty or obligation , and indeed the existence of a duty owed to the public may negative

a private law duty to individuals (see for example cases such as Kennedy v. Law Society (no,4) [2005]3 I.R .228, and Beatty v Rent

Tribunal [2006] 2 I.R.191 ). However, it would be an even larger step to derive from a power to detain evidential items (and a power

to resist a civil claim for detinue), a duty to seek out evidence or material or information pursuant to the Sterling-Winthrop test,

breach of which will give rise to an entitlement of an accused to have his or her trial prohibited. In my view it seems arguable that if

such a legal duty arises and is enforceable as such, it is to be derived from the modern jurisprudence from Braddish thereon and

cannot be deduced, inexorably or otherwise, from Dillon v. O’Brien & Davis. In that respect, it is noteworthy that although Dillon v.

O’Brien & Davis is a respected authority and has been cited in important cases on search and seizure in the courts of the United

Kingdom (Elias v. Pasmore (1934) 50 T.L.R. 196, Chic Fashions (West Wales) Ltd v. Jones [1968] 2 Q.B. 299, Ghani v. Jones [1970] 1

Q.B. 693 and R (Rottman) v. Commissioner for the Metropolis [2002] 2 A.C. 692) and the United States (see for example Weeks v.

US 232 U.S. 383 (1914) and U.S. v. Robinson 414 U.S. 218 (1973)), neither jurisdiction has sought to derive from it the duty to seek

out all relevant information or material, breach of which may give rise to the likely prohibition the trial.

24. The test set out and adopted in Sterling-Winthrop v. Bayer is of course that set out in the judgment in the Peruvian Guano case:

Compagnie Financière du Pacifique v. Peruvian Guano Company (1882) 11 Q.B.D. 55. Indeed the portion quoted in Braddish is from the

well known judgment of Lord Justice Brett in that case. It is a case (and a test) which is however, viewed increasingly critically in a

modern era where discovery threatens to swamp litigation both in its volume and in its cost. But it is not readily applicable in the field

of criminal law, still less in defining an obligation to seek out evidence. In the first place, it is a test applied in inter partes litigation

where the obligation is bilateral. Second, the question of relevance is determined by an analysis of the pleadings, and increasingly the

evidence, exchanged between the parties and as refined sometimes by the delivery of interrogatories. None of this is easily or readily

applicable to the process of the investigation of crime by a police force. Furthermore, there is no obligation on a party in civil

proceedings to seek out evidence not already in its possession or power. Indeed, it is, in part, for reasons such as the foregoing that

it has been held that there is no power to seek discovery in criminal proceedings: see e.g. Conlon v. Kelly [2002] 1 I.R. 10 approved in

The People (Director of Public Prosecutions) v. Sweeney [2001] 4 I.R.102. I am not convinced that the majority decision in Dunne,

even as qualified by McGuinness J., should be taken merely by a process of repetition without analysis to represent an established

principle of Irish law. If there is to be such a principle, then it is one which, in my view, should be deduced by a rigorous analysis of

case law and a close consideration of principle. Such a process might consider if any distinction is to be drawn between cases where

evidence has not been obtained, obtained but lost, obtained but not disclosed, or positively suppressed, and the role culpability on

the part of the police and the materiality of any evidence lost, not found, not disclosed or even suppressed, might have in such an

analysis. By referring to culpability I do not intend to suggest that a trial will only become unfair if there is deliberate wrongdoing by

the police. Rather it seems to me arguable that the blameworthiness of the failure to find or retain evidence, whether deliberate,

reckless negligent or careless is a factor to be taken into account together with the materiality of the evidence. Any test must

carefully address the very difficult issues which arise in cases such as this, where there are a number of competing and sometimes

irreconcilable considerations. That is a process which is undoubtedly aided by a consideration of the case law of other common law

jurisdictions.

25. I fully agree therefore that the Irish jurisprudence in this area and others can benefit from a careful analysis of the law of other

jurisdictions and not least the lucid and penetrating analysis often to be found in the jurisprudence of the Supreme Court of the

United States. Such scrutiny must however be carried out at a level beyond the superficial and must be conscious of the sometimes

very different procedural background against which some of the cases are decided. Less worthy of emulation however, in my view at

least, is the tendency to dismiss decisions of that court as merely reflective of some ideology or indeed the fact that a polarised

modern appointment process and some judicial utterances, indeed decisions, have encouraged that tendency. In my view there

remains much wisdom in the observations of Chief Justice Evans Hughes when asked at an earlier fraught period in American legal

history whether he was a conservative or a liberal. He replied that he set little store by such terms, saying that “such characteristics

are not infrequently used to foster prejudice. They serve as a very poor substitute for intelligent criticism. The judge who does his

work in an objective spirit as a judge should, will address himself conscientiously to each case and will not trouble himself about

labels”.

26. Approached in this way it is, I think, apparent for example that Arizona v. Youngblood, whatever its rhetorical force, is not a

particularly useful authority in the resolution of this case. Neither that case nor the line of authority it develops gives any support to

the proposition that anticipatory judicial review is the exclusive remedy in cases of missing evidence, or that the test should be a real

risk of an unfair trial, or that there is an obligation on the police to seek out and detain all evidence that satisfies the Peruvian Guano

test. Indeed, both the majority and the minority in Arizona v. Youngblood were agreed on the court’s “unwillingness to read the

‘fundamental fairness’ requirement of the Due Process Clause … as imposing on the police an undifferentiated and absolute duty to

retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution” (Rehnquist C.J., p.

58). Again it is noteworthy that the obligation there rejected was only to “retain and preserve” and not to seek out. Indeed, it seems

that even the minority judgment in that case would not support the appellant in this case were the standard asserted there applied

here, not least because in that case the appellant’s car had been seized, examined, turned over to a wrecking company and

dismantled without the victim having viewed it and without the police having checked the car to confirm or refute elements of the

victim’s testimony. There is no suggestion however, that this alone would have justified a dismissal of the indictment. Perhaps most

notably of all, it has never been suggested that the Irish courts should apply a mala fides test to the question of missing evidence,

and it is thus hard to see that the issue which so bitterly divided the majority from the minority in that case is of any assistance in

the resolution of this case.

27. Of greater assistance therefore may be the immediately preceding decision in this line of authority California v. Trombetta on

which the same court was unanimous. In that case the court in a judgment of Marshall J. overturned the decision of the California

Court of Appeal dismissing an indictment in a drunk driving case because the state had not retained breath samples for independent

analysis. At p. 486-487 Marshall J. observed:

“We have, however, never squarely addressed the government’s duty to take affirmative steps to preserve evidence on

behalf of criminal defendants. The absence of doctrinal development in this area reflects, in part, the difficulty of

developing rules to deal with evidence destroyed through prosecutorial neglect or oversight. Whenever potentially

exculpatory evidence is permanently lost, courts face the treacherous task of divining the import of materials whose

contents are unknown and, very often, disputed. …. Moreover, fashioning remedies for the illegal destruction of evidence

can pose troubling choices. In nondisclosure cases, a court can grant the defendant a new trial at which the previously

suppressed evidence may be introduced. But when evidence has been destroyed in violation of the Constitution, the court

must choose between barring further prosecution or suppressing -- as the California Court of Appeal did in this case --

the State’s most probative evidence.”

The court applied Killian v. U.S. 368 U.S. 231 (1961) where the Supreme Court refused to find a violation of the due process clause

where on a prosecution for perjury, an FBI agent who had prepared the investigatory report had destroyed the preliminary notes made

while interviewing the witnesses. The petitioner had argued that the notes would have been helpful to his defence and that there was

therefore a violation of the due process caused by the destruction of potentially exculpatory evidence. The Supreme Court refused to

hold that there was a violation of the due process clause. These cases, it should be observed, deal with the loss or destruction of

evidence actually in the possession of the police, and do not go so far as to suggest a positive obligation to seek out evidence still

less information which, if in the possession of a civil litigant, would satisfy the Peruvian Guano test of relevance.

28. In my discussion of the foregoing matters I thought it necessary to explain and illustrate my view that the jurisprudence in this

important area deserves review by making reference to authorities in this and other jurisdictions. I hope it was clear from the terms

and context of that discussion, and in any event I am happy to make clear now, that these authorities, and the issues to which they

relate, did not all emerge from the submissions and arguments of counsel in this case. Accordingly, I readily acknowledge that this

portion my judgment is obiter and should not be understood as deciding, or seeking to decide any point, or to indicate anything other

than my reasons for considering that this area deserves re-examination by way of focussed argument and careful analysis. This

element of my judgment is therefore correctly characterised as an excursus, and it follows that the materials referred to by me were

not addressed in argument. In fairness however the same can be said for the impressive array of characters and materials, ranging

from Sir William Herschell, the Feltham magistrates, Larry Youngblood, the Innocence project and the works of Dr Heffernan, Messrs

Dinger, Bay and McGrath and others, to the experiences of Captain Dreyfus and the Guildford Four and former Judge Anderson, and on

to the conservative tendency of a majority of the U.S. Supreme Court, and the case law of the U.S. which have so been so vividly

and tellingly deployed in this and earlier versions of the powerful judgment of Hardiman J in this case and which has prompted my

reflections on this area.

29. If this difficult area is the subject of detailed forensic scrutiny in a concrete case, then I believe the analysis and any outcome

will benefit not alone from consideration of the law of other jurisdictions but more immediately from the convictions expressed so

powerfully in recent Irish case law. For my part I fully agree with the observations of Fennelly J in Dunne:

“All this place in the context of a possible trial and it is of the greatest importance that the Courts ensure that the police

force behaves with impeccable fairness in its handling of evidence.”

That applies wherever the issue of lost evidence arises and whatever the court and circumstances in which the issue is raised. It is in

the interests of all parties, and even more importantly in the interests of justice, that all possible available material should be

gathered and all relevant evidence should be adduced. However I am unconvinced that this proper approach should mean that cases

of missing evidence should be approached on the basis of an assumption of police suppression of evidence. For example I cannot find

any evidence which suggests that the Gardaí in this case deliberately ignored the possibility of finger print evidence or decided to

confine their investigations to forms of evidence that would support a prosecution theory of the case. To so frame the issue certainly

suggests an answer, but for me the issue is more complex and nuanced, and for that reason, I would welcome further debate and

analysis.

30. Arizona v. Youngblood is helpful in one respect in the analysis of this case. Leaving aside for this purpose the judgment of the

majority since it is not suggested that bad faith should be the criterion to be applied, it is instructive that Stevens J who concurred in

the result, and the minority who dissented, agreed on the application of a test of materiality but differed as to the result. The key

feature in Arizona v. Youngblood which bears comparison with the facts of this case was the nature of the test available which could

be carried out on the victims’ clothing on the basis that the semen sample left on the clothing was that of the assailant. Even with

the state of scientific knowledge at the time, and long, therefore, before the forensic advances which are now commonplace, it was

possible to carry out tests which, if certain results were received, could have entirely exonerated the accused. As is lucidly explained

in the judgment of Justice Blackman, samples of bodily fluid such as semen can show whether the person leaving the sample was a

“secreter” or not (p. 68), i.e. somebody who does or does not secrete a blood type marker in such fluids . Thus if the sample showed

positively that the assailant was not a secreter, and the accused was a secreter, then that result would exculpate the accused. If

the sample showed that the assailant was a secreter, then it might be possible to detect the blood type and if that blood type

differed from that of the accused, that evidence would be positively exculpatory. Of course, each of these scenarios involved a

difference in the result. If the accused was not a secreter and so was the sample, then the evidence would be of no assistance to

the accused, but also of little forensic value to the State given the number of persons who are secreters and non secreters. The

same point might be made about blood type. They key feature for the dissenters in Arizona v. Youngblood therefore, was that if

tested, the sample could have revealed an “immutable characteristic of the criminal and hence to exculpate a defendant charged with

the crime” (p.69). It was because the evidence was relevant, revealed an immutable characteristic of the actual assailant, and was

of a type “likely to be independently exculpatory” (p.70), that the dissenters would have quashed the conviction. Distinguishing the

case from California v. Trombetta, Justice Blackmun concluded that there was a “distinct possibility in this case, one not present in

California v. Trombetta, that a proper test would have exonerated the respondent, unrebutted by any other conclusive test results”

(p. 68).

31. This may illustrate an important distinction in this case. Here the position is almost the reverse. In order to understand why this

may be so, it is, regrettably, necessary to revisit once more the facts of this case. That task however, serves to confirm my

scepticism about an exercise in which trained lawyers pore over the papers presented for judicial review in search of arguments,

admissions or omissions which can be deployed to advance their argument, and my preliminary view that it would be preferable if

these matters were addressed in a trial court with, if necessary, the capacity to pursue issues through oral evidence and to revisit

those issues as the case proceeded. Insomuch as scrutiny inevitably is brought to bear on the investigatory work of the gardaí, I

believe it should be understood, first, that the process of trial in due course of law is focussed on the trial of the issues of fact and

law between the prosecutor and the accused and only addresses questions of investigatory process insomuch as it is relevant to that

task and second, that any review of actions taken at the time must be conscious that those matters are to be judged by the

circumstances of the time rather than through the high powered lens afforded by the reflection over time by trained lawyers, with

endless, and it seems, perfect hindsight on the single issue to which attention is directed in the particular case.

32. Having reread the papers and exhibits, I should record my impression that the investigation here was thorough. The Book of

Evidence runs to 70 pages and contains statements from 18 witnesses. The disclosure of additional material and original statements

runs to more than a hundred pages pursuing a number of issues not the subject of attention or comment in these proceedings. The

carrying out of these inquiries and the taking of the statements all involve a considerable amount of time, quite apart from all other

work in which the relevant gardaí may have been engaged. The relevant sequence appears to be that the accident occurred in the

early hours of the 14th of August 2005. The scene was examined by Sergeant Colm Finn, a trained forensic collision inspector, who

was called to the scene of the fatal and life changing accident in order to carry out a forensic reconstruction of the incident. He did

not carry out any fingerprinting tests and since he did not give oral evidence, and was not asked to do so, we do not even know if

that was among his functions or skills or was normally done at the scene of fatal accidents where the driver is in the driving seat and

there are many witnesses to the driving. In any event, no complaint is made about this. He did find that the interior of the car had

suffered such extensive damage that it was not possible to examine it.

33. We do, however, know quite a lot about the scene at which he attended. In the words of one of the witnesses, it was “a scene

of carnage”. One of the occupants of the car, Ciara Brack, was trapped hanging out through a window. She was bleeding and had

been physically sick. She had sustained tissue damage to her brain, stitches to her head, a clot on her spleen and a nerve fracture to

her left arm. Emma Wall who had been a front seat passenger was lying on the back seat in shock, with visible wounds to her legs,

right thigh and calf area and obvious intra-abdominal bleeding. At 4.10 that morning she died from her injuries. Two male occupants of

the car were seen by the driver of the other car to be engaged in a row, first in the car and then outside. Stephen Wall, a brother of

Emma Wall and a cousin of the accused, has said that he went to Jason Wall and told him that if anything happened to his sister he

would “punch the head off him”. Jason Wall does not accept this and suggested he had a row with another friend. The gardaí pursued

this question and the additional disclosure contains a statement form that young man which does not support Jason Wall’s account. It

appears clear that Jason Wall was involved in getting the driver, Lindsay Hudson, out of the driver’s seat and out of the car. The

motor vehicles were removed to Gannon’s yard where they were inspected on the 17th of August by Garda McCallion, a PSV

inspector, and were inspected again by Sergeant Finn on the 23rd of August. In between these inspections, on the 18th of August,

Lindsay Hudson made a statement to Sergeant Daniel Garrity in which she alleged that Jason Wall had grabbed the steering wheel.

34. It is said on behalf of Jason Wall that the fact that the making of this statement ought to have led to the taking of fingerprints

either by Sergeant Finn on the 23rd or at least before the removal and scrapping of the car which occurred by the 29th of that month

at the latest. Alternatively, it is said that the vehicle should have been maintained to allow such fingerprint testing to be carried out

on behalf of Jason Wall. There is no doubt that if a finger print test had been carried out, or the vehicle retained, these arguments

could not have been made, but the question whether a trial should be prohibited depends on an analysis of the culpability of that

omission, and the materiality of the evidence which was not obtained in the context of the case as a whole. While in retrospect it is

certainly unfortunate that members of the gardaí did not immediately act upon Lindsay Hudson’s statement or anticipate that further

evidence from Stephen Wall or someone else might change the focus of their inquiries and make fingerprint evidence possibly useful,

and not just to the defence, I do not think that the investigation can be fairly characterised as grossly deficient or seriously

negligent.

35. The observations made in the last sentence of the foregoing paragraph have been subjected to forceful scrutiny in the judgment

my colleague Mr Justice Hardiman delivers. Recognising the force of the analysis as I do, I cannot however agree. If it was an

inference that the focus of the Garda inquiries changed it was one that seemed, and seems, inescapable (since at a most basic level

the initial Garda forensic examination placed the blame for the accident squarely on the driver, and a passenger is now charged) and

uncontroversial. It is not the only inference drawn from the evidence in this case. The reference to retrospect was intended to do no

more than observe that it was clearer now that fingerprints should have been sought than it may have been at the time when

different people were taking the statements, examining the car, directing the investigation and deciding to dispose of the car. It does

appear to me relevant that the issue is considered in terms of what the Gardaí should or ought to have done. If it were not, it would

not be necessary to debate what the Gardaí did or did not do and the strength of the epithet to be applied to their conduct. Indeed

the stress laid on the fact that one member of the Gardaí had taken Ms Hudson’s statement inculpating Jason Wall before the car was

removed for destruction is consistent with an approach which considers it relevant that the gardaí were at fault in releasing the car.

Would anyone contend that this trial should be prohibited if the car was no longer available for fingerprinting because of factors

outside the control of the Gardaí or prosecution generally, such as a fire at the scene of the accident or indeed thereafter? It seems

to me that what the prosecution does can be relevant to the fairness of the trial. I would wish to repeat however that these

references should not be understood as contending for a test that trials should only be prohibited when the police are shown to have

acted in bad faith.

36. I would accept that materiality is perhaps the factor to which most weight should be given. It is possible to conceive of some

cases where the evidence is so central that no fair trial could take place without it. But in more contestable cases where a trial could

take place in the absence of the evidence, it is not irrelevant to the court’s assessment if the evidence was lost through

carelessness, gross negligence or worse. Here I was merely recording my impression of the garda inquiry generally. I do not

understand that the concept of materiality should be controversial. It is no more than the idea that there must be a real engagement

in a specific way with the evidence actually available in the case. Mc Farlane v DPP [2007] 1 I.R. 134. If in a case such as this there

was no question of another actor and a prosecution was brought against the owner driver of a car, would it be suggested that the

release of the car for scrappage would mean that no trial could take place? Obviously most contested cases are more complex and

nuanced, which is a further reason perhaps to consider that they should be addressed either before, or at, a trial which “will be able

to assess, on the evidence as it actually develops, whether there is any unfairness to the applicant, incapable of remedy by the trial

court, for which the prosecution is responsible “(McFarlane, 147) rather than by a process of drawing inferences from affidavits.

37. What then is the potential significance in this case of fingerprint evidence, or more precisely, evidence that no fingerprints could

be detected? In my view, it is very far removed from the type of demonstrably exculpatory test involved in Arizona v. Youngblood.

This was not a car in pristine condition awaiting investigation. It was a car involved in a serious accident in which the front seat

passenger received fatal injuries and a rear seat passenger was trapped in the car, seriously injured, and had to be removed from it.

In addition, the driver was removed from the car by Jason Wall himself. The interior of the car was so damaged it could not be

inspected at the scene. It was not the case that this was the first time Jason Wall was in the vehicle, in which case the presence or

absence of fingerprints, if capable of being found, might have particular significance. On the contrary, Mr Wall’s affidavit goes to some

lengths to explain why it is to be expected that his fingerprints would have been found in the car and on the steering wheel. It is said

in the replying affidavit of Sergeant Denis Whelan, and apparently accepted, that Jason Wall was the then boyfriend of Lindsay

Hudson and had been in the car on an almost daily basis and sat in the driver’s seat on several occasions. Mr Wall addresses this

specifically in his own affidavit as follows:

“I appreciate that the presence of my fingerprints in any part of the car, including the steering wheel, would probably

have been of little evidentiary value, as Lindsay was my girlfriend at the time and I would have been in the car

anyway……”

But he goes on to say that he is advised, and believes, that the converse is not true in that the absence of fingerprints from the

steering wheel could be considered to be highly relevant.

38. As the extract from the affidavit makes clear, this is a legal argument introduced through a witness’s affidavit, which is perhaps

unobjectionable in ordinary judicial review, but which illustrates the difficulty in this fact specific context of assessing the evidence

not in its raw state but as selected and presented through words directed towards a legal argument. In any event, I consider the

argument is overstated as a matter of logic. The thrust of Mr Wall’s evidence as to his repeated presence in the car is that his

fingerprints are to be expected to be found in the car and on the steering wheel. But if this is so, then if such prints were not found,

it would be clearly wrong to conclude or infer that Mr Wall had not been in the car, or had not touched the steering wheel, because

we know, on his own admission, that he had been there. The absence of fingerprints would prove only that; that fingerprints were not

found. In the absence of some positive evidence that if the incident occurred as described by Ms Hudson and Stephen Wall it must

have left a fingerprint on a wheel which would still have been detectable after the rescue efforts and movements involved in the

recovery of the injured and the removal of the cars (and such evidence is neither likely nor suggested in this case), then evidence

that fingerprints were not found is a world removed from the type of positive exculpatory evidence discussed in Arizona v.

Youngblood, for example. At most if tests had been carried out and fingerprints not found it would have allowed an argument to be

made to the jury that the absence of fingerprints was consistent with Jason Wall not having touched the wheel. But such arguments

are the essence of criminal trials, and the failure to carry out a fingerprint test, and indeed the fact that the car is no longer

available, allows a different argument to be made, one which this line of authority shows is persuasive to some, while depriving the

prosecution of whatever argument might be made as to the conclusions which might be drawn from a positive result. This must be

placed in the context that there are already a number of arguments canvassed in this case on behalf of the defence including the

failure to test Ms Hudson for consumption of alcohol, the likely absence of the driver of the other car, and the fact that the initial

statements of Ms Hudson and Stephen Wall did not inculpate Jason Wall. In all the circumstances, I do not see how the matters

complained of reach the point of requiring that a trial be prohibited.

39. The fundamental facts in this case are that a young woman was killed and others injured as a result of a manoeuvre carried out

which caused the car to cross to the incorrect side of the road, and collide with another vehicle. It seems common case now that

whatever caused the fatal swerve occurred inside the vehicle in the fateful moments before the collision. There were five people in

the car at the time. One of them is dead and two of them have now given accounts of what transpired which, if the trial proceeds,

they will give orally, on oath, be cross-examined upon, and which will be considered by the jury under the guidance of a judge, in the

context of all the evidence and arguments in the case. Put at its lowest, I do not consider that the administration of justice requires

that such a trial should be prevented.