Supreme Court dismisses appeal where accused claims gardaí failed to obtain evidence causing unfair trial risk.

THE SUPREME COURT

Judicial Review

[2013] IESC 56

Appeal No: 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 Mr. Justice MacMenamin delivered the 11th day of December, 2013.

Introduction

1. It is by now well established that the onus rests on an accused who seeks judicial review to prohibit a trial to prove that

circumstances exist which give rise to a real risk that the accused would not receive a fair trial, which cannot be avoided by

appropriate rulings and directions on the part of the trial judge (see Z. v Director of Public Prosecutions [1994] 2 I.R. 476 and D. v

Director of Public Prosecutions [1994] 2 I.R. 405). The risk must be a real one, and the unfairness of the trial must be unavoidable. It

is well settled, too, that there is a duty on the gardaí to obtain, and to keep track of items of real evidence relevant to the case

(McFarlane v Director of Public Prosecutions [2007] 1 I.R. 134). This judgment concerns the former situation; it hinges on what is

claimed to be “unobtained evidence”. It is said here the gardaí should have obtained this evidence at, or before, a defined point in the

course of that investigation. It is contended that the failure then to obtain such evidence now gives rise to a real risk of an unfair

trial. The issues in the case are whether the appellant, Mr. Jason Wall, can establish that there is, in fact, a real risk of an unfair trial,

and whether that risk derives from a failure in duty by the investigating gardaí.

2. On the 13th November, 2008, the High Court, (O' Keeffe J.), dismissed the appellant's application for judicial review seeking

prohibition of criminal proceedings against him. The appellant sought to restrain any further prosecution of the two counts on an

indictment, wherein he is charged with endangerment, contrary to s. 13 of the Non-Fatal Offences Against the Person Act 1997; and

the unlawful seizure of a vehicle, contrary to s. 10 of the Criminal Law (Jurisdiction) Act 1976. Both counts arise from the same

incident, a fatal traffic accident which occurred on the night of the 14th August, 2005. It is said the appellant, while a back seat

passenger in a car, leaned forward and seized the steering wheel of that car, thereby causing the accident in which another young

passenger was killed. Prohibition is sought on the basis of the unavailability of evidence, namely the absence of any garda forensic

tests for fingerprints on the steering wheel of the car in which the group were travelling. It is said evidence of a forensic test showing

the absence of fingerprints on the steering wheel would have served to rebut the prosecution case, which is now based on the oral

evidence of two of the other passengers in the car, both of whom will allegedly say that the appellant acted in the manner described,

thereby causing the fatal collision.

The general background

3. The case involves a group of young people on a night out, which ended tragically. At an earlier point in the evening, the group was

apparently comprised only of the appellant, together with Lyndsey Hudson, Ciara Brack and the late Emma Wall. They started

socialising in Emma Wall’s house, and then went to a local public house. At some point, the appellant’s cousin, Stephen Wall, joined

them. They all decided to move on to Shankill to see friends. They were travelling in a Honda Civic car, owned and driven by Lyndsey

Hudson, then Jason Wall’s girlfriend. They had intended to buy chips in Sallynoggin, but the chip shop was shut. They went on

towards Killiney. There is no dispute that the appellant was a backseat passenger in the car. There were two other rear seat

passengers, Stephen Wall and Ciara Brack. Emma Wall, the appellant’s cousin, was in the front passenger seat. When the car came to

Church Road in Ballybrack, it is said that, as a result of the appellant’s actions, the car veered suddenly over to the incorrect side of

the road, and collided with an oncoming car driven by a Mr. Patrick Foley. Emma Wall sustained very serious injuries in the accident,

which caused her death. The sequence of events in the investigation is highly relevant to this case and must be set out. There first

follows a general outline of that investigation. Certain aspects of it are then covered in more detail.

How the investigation progressed

4. At the outset, the primary focus of the garda inquiry was as to why the car allegedly veered over to the wrong side of the road.

Two natural questions addressed were, first, whether it was the fault of the driver herself; or, second, whether some mechanical

defect in the car caused it to behave as it did. But within days, Ms. Hudson, the driver, sought to explain the accident by putting the

blame on the appellant. On the 18th August, 2005, four days after the accident, she made a cautioned statement saying Jason Wall

interfered with the steering wheel. However, forensic mechanical tests on the two cars, carried out within 10 days of the accident,

put the blame on Lyndsey Hudson herself, and ruled out any mechanical failure. Investigations continued for some months before the

appellant was first interviewed by An Garda Síochána on the 19th December, 2005. He was interviewed again on the 25th January,

2006, when, with his consent, his fingerprints were taken. On the 13th July, 2006, the appellant was charged. On the 8th September,

2006, the District Court returned him for trial in the Circuit Criminal Court.

5. On the 14th September, 2006, the appellant’s solicitor wrote to the Chief Prosecuting Solicitor. The letter, in a form now usual in

indictable offences, requested all relevant witness statements; particulars of convictions on the part of witnesses to the collision;

and details of any evidential sources such as physical evidence, and copies of any CCTV footage. A general request for fingerprint

analysis of the car was made separately, three months later, on the 21st December, 2006. At that point, the defence asked whether

the cars involved were available for inspection. Subsequent correspondence established that no fingerprint tests had been carried out

on the steering wheel.

6. On the 6th March, 2007, nine months after the appellant was charged, his solicitor wrote to the prosecution authorities stating

that he had the clearest instructions from his client that “he did not grab, pull or in any way interfere with the steering wheel of the

car on the night in question and was not responsible for the accident”. This letter mooted the possibility of judicial review proceedings

owing to the indications from the prosecution regarding unavailable forensic evidence from the cars. Junior counsel acting for the

appellant was specifically advised orally on the 26th March, 2007, that the cars, in particular Lyndsey Hudson’s car, were no longer

available for inspection or testing.

7. No criticism can be laid at the appellant's door simply on the basis of the elapse of time between the critical events, and the

subsequent requests for tests. In the appeal, counsel for the Director accepted that culpable delay on the appellant’s part is not an

issue in this case, in light of the fact that, by the time the question of the appellant’s involvement was first directly put to him, on

the 19th December, 2005, both cars had previously been destroyed. The indications are that both cars were destroyed approximately

11 weeks earlier, by the end of September 2005. This “end date” is borne out by correspondence, from the firm which disposed of and

destroyed the cars, which is dated the 29th December, 2005. This dates the time of disposal or destruction of the car as being in late

August or September 2005. This disposal occurred after Lyndsey Hudson’s cautioned statement of the 18th August, 2005; but also

after witness statements from the passengers saying they remembered little, and the garda forensic investigators’ reports to the

effect that Ms. Hudson must have been responsible for the fatal accident. It is not entirely insignificant, however, that the first

specific request for a forensic test, specifically referring to the car’s steering wheel only came on the 21st December, 2006, by then a

full year after the appellant’s first interview.

8. There is no evidence as to when, exactly, the appellant himself actually became aware that Lyndsey Hudson was blaming him for

what happened, nor as to when he first contacted a solicitor. At his second interview in January 2006, he denied that he had any

recollection of the accident. The appellant, Lyndsey Hudson, Stephen Wall and Ciara Brack all apparently attended Emma Wall’s

funeral. The appellant denied any contact with the other passengers at the ceremony.

Aspects of the investigation

a) The passengers’ statements to witnesses at the scene, and later to An Garda Síochána

9. On the night of the accident, Lyndsey Hudson is said to have told a civilian witness at the scene that she did not know what had

caused the car to veer to the wrong side of the road. However, her later cautioned statement to members of An Garda Síochána

obviously diverges from this.

10. In that later cautioned statement of the 18th August, 2005, she is recorded as alleging that, as she drove on to Church Road,

Jason Wall (in her words) “leaned through the two front seats. He turned up the radio.” She continued, “I think I said ‘what are you

doing?’ He didn’t answer. He suddenly grabbed the steering wheel and pushed it to the right to the other side of the road.” She is

recorded as saying that she “tried to turn the car back on the proper side of the road, and then I seen the other car coming for me

and it smacked into us”.

11. In her second cautioned interview, on the 8th January, 2006, Ms. Hudson stated that, at one stage, she and Jason Wall had been

shouting at each other in the car. The appellant’s own account was that, by the time they were in the car, there was no argument,

and, as will be seen later, he denies that any actions of his caused the accident.

12. When brought to St. Vincent's Hospital after the accident, Ms. Hudson was found to be alert and orientated, but claimed she had

“a hazy recollection of the details of the accident”. She said later she had had just two drinks on that evening. She held only a

provisional driving licence at the time.

13. Of the other surviving passengers in the car, one, Ciara Brack, told the gardaí she remembered nothing between the beginning of

the journey, and waking up in hospital later. On the 30th August, 2005, the other passenger, Stephen Wall, made two cautioned

statements. One of these has him saying “I don't remember anything from the night”. In the other, he gave some other details of

what he said happened on the night, but, regarding the accident itself, he simply said, “I can remember lights coming towards us and

snapping back out of it outside the car”. Clearly, at that point, he did not seek to attribute any blame to the appellant. But some

months later, on the 7th February, 2006, Stephen Wall was again interviewed. By then, he was detained in Mountjoy Prison for

matters unconnected with these events. The precise circumstances of this interview have not been described. Then he is said to

have told the gardaí that the appellant had “reached for the steering wheel and he moved the wheel. I reckon he moved it with his

right hand”. Only this statement was contained in the book of evidence; his earlier statements were not included, and were only made

available in disclosure.

b) The forensic examination of the accident scene and the cars

14. On the 14th August, 2005, the night of the accident, Sergeant Finn, a trained forensic collision investigator, examined the scene.

The cars were then taken to a disposal yard. On the 17th August, 2005, a Public Service Inspector, Garda McCallion, examined both

cars at the yard. He reported the 1995 Honda Civic had been extensively damaged. On the 23rd August, 2005, Sergeant Finn again

examined the cars. He drew a number of inferences in his report. He found no mechanical defects in either vehicle that could have

contributed to the collision. In his view, the primary cause of the accident lay with Lyndsey Hudson, the Honda driver, as she had

failed to keep her vehicle on its correct side of the road. He stated there was no evidence that either driver was travelling at

excessive speed. There is no indication in these reports that either of those forensic examiners was aware that Lyndsey Hudson had

already told other members of An Garda Síochána that the appellant was to blame, or how she claimed the accident happened.

c) Possible unavailability of other evidence

15. There are indications that the other driver, Patrick Foley, may not be available for the prosecution. He cannot be traced. His car

does not appear to have been insured. He appears to have given a false address to the gardaí. As a consequence of this, it is said

that Sergeant Finn’s evidence, eliminating speed as a factor may go uncontroverted. But, in fact, the appellant does not make a case

that the car in which he was travelling was being driven too fast, nor does he say that, to his own knowledge, the car might have

been mechanically unsafe. These matters cannot be seen as true prejudice. The question of what precisely happened, and why,

remains open, and would have to be proved by the prosecution beyond a reasonable doubt at trial.

16. It is said, too, that Lyndsey Hudson was not significantly injured after the accident; therefore, there was no reason why she

should not have been breathalysed. As a result of this, it is said there is additional prejudice. Little emphasis was laid on this point

either. There is no indication in this appeal that Ms. Hudson was drunk or incapable, or that any such incapacity on her part caused

the accident.

d) Where were the back seat passengers situated?

17. Where precisely the appellant is said to have been sitting in rear seat is not entirely clear. Most of the witness statements would

appear to place him behind the front passenger seat. Lyndsey Hudson recounts that the appellant leaned through “the gap” between

the front seats. This ambiguous statement might be taken as suggesting that the appellant was the centre of the three back seat

passengers. Stephen Wall, who was also in the back, said that the appellant “leaned over the passenger chair”. But in fact, when

Stephen Wall was questioned immediately after the accident, he said he himself was sitting in the middle of the Honda’s rear seat. On

the 30th August, 2005, he repeated this part of his account, placing Ciara Brack behind the driver, and the appellant behind the

passenger seat. Ciara Brack told the gardaí that “as far as she could remember the appellant was sitting behind the passenger seat”.

e) Examination of a similar steering wheel

18. The prosecution apparently sought to address the issue of fingerprint testing when it was first raised. When the matter came

before the Circuit Court for mention, the question of fingerprint tests was canvassed. The prosecution indicated then that, in order to

check whether there could have been fingerprints, tests would be carried out on a steering wheel similar to that in the crashed Honda

Civic. The Director has not furnished any further information to the defence on this question, although it should be noted the

suggestion for such a test actually emanated from the prosecution itself. No issue was raised in this appeal on the absence of

fingerprint tests upon any other point of the front passenger compartment of the car, such as the radio dial. As was accepted in

argument, this case centres on the absence of forensic tests on the steering wheel. No explanation has been offered for the absence

of any result from these tests, which were apparently to be carried out.

f) The circumstances at the time the cars were disposed of

19. There are, however, other factual matters which are critical. They derive from the fact that, although the appellant was first

interviewed on the 19th December, 2005, he was not charged until the 13th July, 2006. Obviously, therefore, this is not a case where

the gardaí were directly put on notice of any requirement for a forensic fingerprint examination within days of the event giving rise to

the prosecution. The appellant's legal advisers do not say they were misled or misinformed as to the ongoing availability of the car for

independent tests. This is not a situation where a member of An Garda Síochána allowed a disposal or destruction of the car whilst

knowing that a request for forensic examination of the car had been made by the appellant's solicitor. These are matters of

considerable significance as, for reasons outlined later in this judgment, they distinguish the facts of this case in a very significant

way from Director of Public Prosecutions v Murphy [1989] I.L.R.M. 71.

Submissions of the appellant

20. In this appeal, counsel for the appellant makes the point that Sergeant Finn’s conclusion about speed appears to be inconsistent

with the witness statement of Patrick Foley, the driver of the oncoming car, who is recorded as having viewed the Honda car going

into “some sort of speed wobble”, and then suddenly veering on to the wrong side of the road. The appellant contends that the

prosecution intends to adduce expert evidence which rules out any question of mechanical defect, or of speed, but asserts that, as a

result of the disposal of the Honda, only the gardaí had the opportunity to record any aspect of the damage to that car.

21. The essence of this case is, however, that the prosecution say the appellant grabbed the steering wheel, and, as a result,

caused the accident. In response, Jason Wall says he would have been able to rebut this case by forensic tests showing his

fingerprints were not to be found on the steering wheel. He says he is denied the opportunity of making this case, and that, absent

this rebutting evidence, he suffers irreparable prejudice creating a real risk of an unfair trial.

The respondent’s submissions

22. Counsel for the prosecution seeks to rebut these points by contending that the appellant was Lyndsey Hudson’s boyfriend at the

time of the accident. It is not disputed that he had been a regular passenger in the car before the accident. Lyndsey Hudson

maintains that, not only was Jason Wall in the car nearly every day, but that he had frequently been seated in the driver’s seat. Ms.

Hudson’s rather bald and puzzling statement to this effect is not further explained. The circumstances and timing of this alleged

“sitting in the driver’s seat” are not elaborated upon. Counsel for the Director submits that, from these “background facts”, it follows

that one would necessarily expect to find the appellant’s ‘forensics’ all over the car; and, as such, any finding of his fingerprints on

the steering wheel would be of no evidential value. But this is surely not the point.

23. Conversely, the prosecution suggests that a “negative test” showing the absence of the appellant’s fingerprints could indicate

that the surface of the steering wheel was resistant to taking prints, and would neither significantly strengthen, nor weaken, the

prosecution or defence cases. The prosecution say that nothing reliable would have been gained from a forensic examination of the

car for fingerprints. More directly to the point, the prosecution submits that the appellant’s case is pure supposition and hypothesis;

that what is being done here is to invoke a mere possibility of unobtained exculpatory evidence rather than something more. It is said

such an invocation falls short of the type of proof necessary in an application of this type.

24. The prosecution also say that now, two passengers can give direct, relevant, first-hand evidence. These are Lyndsey Hudson and

now Stephen Wall. Both of them are now saying the accident was caused by the appellant’s actions. Counsel for the Director submits

that there is no evidence to contradict these two witnesses, as, at interview, the appellant has maintained he has no recollection of

what happened on the night. One might comment that this last point might more tellingly be made by the appellant, on the basis that

his claimed absence of memory might actually reinforce a contention that the unavailability of forensic evidence irretrievably damages

his case.

25. Counsel for the Director casts doubt on any suggestion of lost memory, saying that there is no evidence that the appellant’s

memory had been affected by an injury in the accident, and that, in fact, he has never denied that he grabbed the steering wheel,

claiming rather that he cannot remember what happened. The appellant has not shown he sustained a significant head injury; but his

case is, nonetheless, that he remembers nothing until he “woke up” on the road surface after the accident.

26. To these points, I would respond by saying it is not the function of a review court to express any view on the credibility of

evidence on either side of the case. Moreover, for the purposes of this appeal, I think the appellant’s position should be taken to be

as it was later expressed in a letter from his solicitor; that is, as a total denial of engaging in any conduct which caused the accident.

The effect of unavailable evidence

27. Underlying this application, as in certain other applications of this type, there lies an important, sometimes only implicit, question:

what would the position be (in this case or others) if evidence sought by the appellant was simply unavailable through no possible

fault of the gardaí; for example, here, if the fire brigade or disposal men had removed and lost the steering wheel, or if it was

destroyed in the accident? Would that simple absence of potentially relevant evidence, seen in isolation, necessarily mean that it

would be unfair to proceed with a prosecution? In itself, the answer must surely be no; this fact would simply be a circumstance of

the accident. It might be raised by the defence as an issue at the trial, but could hardly be a basis for prohibition. How far then does

a court then go when seeking to weigh the prejudicial effect of actions or inactions of the gardaí in failing to obtain evidence? The

authorities offer guidance on this.

The duty of the gardaí in an investigation

28. The duty of the gardaí is to seek out and preserve relevant evidence, and also to obtain, and keep track of items of real evidence

relevant to the case (see the observations of Hardiman J. in McFarlane v Director of Public Prosecutions). Clearly, an accused has the

right to a proper, full and fair investigation; but, as the authorities now considered show, this must be within the realms of reality.

The decided authorities on this type of application

29. I turn then to consider the application of these authorities in some more detail. It might be said the principles in cases of this kind

are by now so well developed and defined that they do not require much repetition (see Fennelly J.’s helpful, recent summary in

Savage v Director of Public Prosecutions [2009] 1 I.R. 185; and see also Braddish v Director of Public Prosecutions [2001] 3 I.R. 127;

Dunne v Director of Public Prosecutions [2002] 2 I.R. 306; Bowes v Director of Public Prosecutions [2003] 2 I.R. 25; McFarlane v

Director of Public Prosecutions; Scully v Director of Public Prosecutions [2005] 1 I.R. 242). It is necessary, of course, to bear in mind

that this is not a case where it is said evidence was lost, but, rather, was not obtained at all.

The role of the court in judicial review as opposed to trial

30. At risk of dealing with matters that are obvious, I would wish to re-emphasise the distinction between the function of a court in

judicial review, on the one hand, and that in criminal trial, on the other. This relates both to the onus and standard of proof. In

judicial review proceedings, the focus will be on an objective assessment as to whether, as a matter of reality, the prejudice alleged

is so truly exceptional as to warrant intervention by reason of the real likelihood of an unfair trial. This test is not subjective, based

on the appellant’s concerns, nor can it be based on mere bald assertion regarding the degree of prejudice allegedly suffered. I do not

suggest that is the position here. But no criminal trial proceeds on the basis that the investigation beforehand has been such that

every conceivable hypothesis can be explored at trial in the light of an infinite range of evidence gathered to meet every possible

contingency or potential line of defence. Judicial review applications exist only to deal with exceptional cases; where the evidence of

prejudice, that is the failure to obtain identifiably relevant evidence, is so plain as to warrant prohibition. The duty of this Court is to

adjudicate on the basis of the now well established jurisprudence under which it is claimed the appellant’s constitutional right to a fair

trial is placed at real risk. No form of relief, other than prohibition, is sought.

Standard of Proof

31. One issue which emerges for consideration is the standard of proof in prohibition cases of this type. This threshold is considered in

a number of the authorities. Most recently, in Byrne v Director of Public Prosecutions [2011] 2 I.R. 461, O'Donnell J., speaking for the

other members of this Court (Fennelly and Finnegan JJ.), made a number of observations with which I find myself in agreement. He re-

emphasised that the seminal decision of Braddish was, in fact, an “exceptionally straightforward case”, where the missing CCTV

footage, which had been viewed by the gardaí, not only showed the incident alleged to have constituted the offence, but was the

very basis upon which the accused had been identified. Subsequent judgments have carefully addressed any over-extension of this

rule. The judgment of this Court, in Byrne, again emphasises that the principle in Braddish is to be interpreted realistically on the

facts of each case (see, too, the judgment of Hardiman J. in Braddish; the judgment in Scully v Director of Public Prosecutions [2005]

1 I.R. 242; and the judgments of both the majority and minority in Dunne v Director of Public Prosecutions [2002] 2 I.R. 305).

The centrality of the unobtained evidence

32. O’Donnell J.’s judgment in Byrne also lays emphasis on the necessity of clearly demonstrating the centrality of the missing

evidence to the trial (see also the judgments of this Court in Bowes and McGrath v Director of Public Prosecutions [2003] 2 I.R. 25).

There is a passage in Byrne, quoting with approval observations of Kearns J. in the High Court in Scully v Director of Public

Prosecutions [2003] IEHC 92, which so well explains the parameters of reference that I quote it here, even at risk of over-repetition.

Kearns J. pointed out:

“some sort of common sense parameters of reasonable practicality must govern any determination of the scope of the

duty on the gardaí when seeking out or preserving evidence. This must of necessity imply that some margin of

appreciation be extended to gardaí when investigating crime to determine what they may reasonably consider to have

some possible relevance in establishing guilt or innocence. What is the alternative? Is it for the accused person or his

legal advisers to dictate the parameters? Alternatively, must the gardaí go on seeking out and preserving any and every

possible piece of evidence which might, by the remotest chance, admit of being relevant in some fashion in a subsequent

trial? I think not. To set the bar too high for gardaí in seeking out and/or preserving evidence is more likely in my opinion

to frustrate the administration of justice and due process than to uphold it.”

33. This Court upheld that judgment on appeal, and emphasised, albeit in the context of an allegation of delay in particular, that it will

not be sufficient merely to “invoke” the possibility that exculpatory evidence “at one time existed”. The duty of an applicant for

judicial review goes significantly beyond basing the case on some “remote, theoretical, or fanciful” contingency. Rather, it must be

“established” that there was a real failure to obtain relevant evidence believed to be potentially exculpatory (see the judgment of

Hardiman J. in Scully).

34. Obviously, these observations are all fundamental indicia in establishing whether there is a real risk of an unfair trial. I fully agree

that, as Hardiman J. pointed out in Scully, where there is relevant evidence available, not only is it both prudent and fair to preserve

such evidence, but there is a duty to do so. But the case here relates, rather, to “unobtained evidence”. It is now said that the

gardaí should have tested the steering wheel. The question is whether the investigative duty went that far, or whether this is now a

mere invocation of a remote possibility, raised in the context of a mere remote or fanciful contention that no fingerprints would have

been found, and based on a mere surmise as to the probative effect of such a test?

35. Appropriate questions to raise, therefore, are, first, whether it can be established that the gardaí fell below the scope of their

duty in the investigation, specifically at the time the evidence was disposed of? If so, does such omission or failure have the

consequence that there is now a real risk of an unfair trial? Do the facts fall into the exceptional category where the point is so “very

clear” as would warrant interference by judicial review? Clearly the issue is now important from the appellant’s viewpoint. But that is

not the true test. To proceed on that basis would be to apply to an unwarranted and retrospective view.

Daly v Director of Public Prosecutions

36. Daly v Director of Public Prosecutions (Unreported, Supreme Court, 11th April, 1994) is referred to in Fennelly J.’s judgment in

Dunne. This case was not referred to in argument. In Daly, this Court held that, absent the defence putting the gardaí on notice, in a

timely fashion, of a reasonable line of enquiry, or that line of enquiry being, in itself, reasonably identifiable, such a duty is not readily

to be imputed in applications where the issue relates to unobtained evidence. Just as here, the appellant had not been arrested,

charged, cautioned or interviewed at the time the evidence was disposed of. This Court observed that prohibition of a trial should

issue “if, but only if,” the issues could not be dealt with by the trial judge in rulings or in the charge to the jury.

37. I do not consider Daly determinative, but just as this case, it raises the question of whether the gardaí owe a duty to a person

who has not been arrested, charged or cautioned, and where the evidence as to an alleged perpetrator is equivocal. It might also be

thought that the court’s consideration and application of the circumstances in Daly differs, at least in nuance, from that in The State

(O’Connell) v Fawsitt [1986] 1 I.R. 362. In this very fact-intensive jurisprudence, obviously each case depends on its own

circumstances. I would reserve to an appropriate case a further consideration of the issues of principle raised in Daly, and also in

Nolan v Director of Public Prosecutions [1994] 3 I.R. 626, as to the circumstances when a review court should consider the

“alternative remedy” issue, in light of the fact that the jurisprudence is well established by now.

A distinction between the facts in this case and the decided authorities – centrality of evidence

38. A number of factual aspects arise then for consideration and distinction. The missing evidence is not direct evidence, such as in

Braddish and Dunne where missing CCTV footage showed the crime taking place. As Hardiman J. pointed out in Braddish, “It would be

difficult to think of evidence more directly relevant than a purported video tape showing the commission of the crime”. It follows this

case is, therefore, not similar either to Ludlow v Director of Public Prosecutions [2009] 1 I.R. 640, where the missing car tyres were

directly relevant to the central question in the case, namely the alleged unsafe thread-depth of those very tyres. That was, truly, an

exceptional and clear case. Of course, here, the “evidence” is not missing at all, in the sense that it was not obtained. Thus, it falls

into a rather different category.

39. It is clear, too, that it is necessary to show, at least to a reasonable degree of likelihood, that the unobtained evidence might

have once existed. The mere “invocation” or possibility of such evidence will not be sufficient.

Murphy v D.P.P. – identifying the scope of the investigative duty

40. In other judgments herein, there is reference to Director of Public Prosecutions v Murphy. I am not persuaded that Murphy is on

all fours with the instant case although there are clear similarities. The facts require analysis.

41. In Murphy, the car destroyed prior to examination was a stolen vehicle. It was alleged that the accused drove it. The only

prosecution evidence was visual identification. The applicant accepted he had been in that car. Given that the vehicle was stolen,

the presence of the accused's fingerprints on the steering wheel obviously had a high degree of direct materiality. But, in itself, this

was not sufficient to fix the gardaí with a duty.

42. A duty to obtain evidence cannot simply be imputed to the gardaí without basis. What might be clear in retrospect is frequently

not at all clear at the moment a decision in the investigation is made. There may, of course, be circumstances where an omission to

obtain evidence is so glaringly obvious that it is self-evidently remiss not to obtain it, even absent a defence request. As I will now

seek to explain, this is not the case here, on the evidence adduced in the case.

43. The critical feature in Murphy is that, the accused’s solicitor had actually written to the gardaí, well prior to the car’s disposal,

requesting sight of any forensic examination, and informing the authorities that the appellant wished to have the vehicle examined by

a professional expert in the field of fingerprints. The gardaí responded that the vehicle would remain available for inspection. Yet, six

days after that communication, when the relevance of that material, reasonably sought, had been specifically requested, the

car was removed and destroyed. The gardaí had not carried out any forensic examination of the car.

44. On these facts in Murphy, Lynch J. held that the gardaí had acted in contravention of natural justice on the basis of the duty

that they had, or as it could reasonably have been identified by them. As the investigating authority, they had actually been put on

notice of the applicant's entirely reasonable request for a forensic examination of the car in which the accused had been travelling.

The car was available at the time of the request. In that circumstance, a forensic test was part of the reasonable parameters of

investigation. The prosecuting Garda Sergeant had been appraised, in a timely manner, of the need for these forensic tests. The

gardaí had been informed why these were sought. The prosecution case was to be based only on visual identification evidence. It

cannot be said the accused dictated the investigation; but, rather, simply identified a relevant course of enquiry in a timely manner.

In allowing the car to be destroyed, the gardaí acted unreasonably and unfairly; they prevented a forensic test, to the irretrievable

detriment of the accused in his defence.

Application of the principles

45. It might be suggested, hypothetically, that if the appellant had been told of Lyndsey Hudson’s statement at the time it was made,

or soon afterwards, and if he had consulted a lawyer, then, that lawyer might immediately have requested a fingerprint test on the

steering wheel. A number of points arise. This case cannot be decided on the basis of what should have occurred. In fact, the

chronology does not support this hypothesis. The general request for evidential sources did not arrive until the 14th September 2006;

the specific request for fingerprint analysis occurred three months later, on the 21st December, 2006. It will be remembered that

Jason Wall was first interviewed on the 19th December, 2005, and again on the 25th January, 2006. The evidence does not disclose

when he first went to a solicitor. It is very difficult then, on these facts, to suggest that in this case, there would have been a timely

or early request for a fingerprint forensic test prior to the destruction of the car. The case then takes on quite a different complexion

from Murphy, where the accused’s solicitor had written to the gardaí, and his barrister had spoken to the gardaí, while the car was

still in their possession, There is no evidence that the elapse of time between Lyndsey Hudson’s interview and Jason Wall’s first

interview occurred as a result of garda mala fides, or misconduct, or even inertia. The garda witnesses were not cross-examined as

to why the elapse of time occurred, or as to why the forensic investigators did not test the steering wheel. It might be more fruitful

to enquire why the delay occurred on the defence side in asking for such tests. This is surely necessary on the facts of this case. To

what extent are the courts to be placed in the position of prescribing the nature, structure and range of a garda investigation? To

what extent are the courts to be put in the position of deciding what avenues of investigation the gardaí should pursue? In my view,

the court should be cautious in so prescribing. This Court can only act on the evidence before it. There is simply no evidence as to

why that delay occurred. Furthermore, the fingerprint hypothesis hinges on an invitation to this Court to speculate on what the

outcome of such a hypothetical forensic test might have been. This is not borne out in the evidence in this case. There is no

evidence as to what the outcome of such a test would have been, or even might have been. The interesting material as to fingerprint

testing contained in the dissenting judgment was not part of the appellant’s case.

46. To re-iterate them, the first specific request for fingerprint evidence of the car was made on the 21st December, 2006, five

months after the appellant was charged. It is difficult to posit a hypothesis favourable to the appellant in light of those facts. Can it

then be argued that a fingerprint test would have been requested in the previous August or September? I am not persuaded of this,

on the evidence, or that a negative, or inconclusive, fingerprint test would have the central quality which the appellant now seeks to

ascribe to it unsupported by any expert evidence.

47. Obviously, the term used by Lynch J. in Murphy, that is, “could reasonably be identified”, is relevant here. What was the position

in the investigation at the end of September 2005? Obviously, the gardaí had not received any request for fingerprint tests on the

steering wheel. There were two inconsistent statements from the driver of the car; the first claiming she did not know what

happened; the second, blaming the appellant. The forensic test reports laid the blame for the accident squarely on the driver. There

is no evidence that the gardaí, at that point, placed substantial credence in Lyndsey Hudson’s uncorroborated allegation, which, on

its face, might appear an unusual explanation for what happened. The evidence from the other passengers was, at that point,

inconclusive; but none of the passengers then blamed the appellant. The appellant’s case stands and falls on the basis that the

gardaí should have switched the focus of the investigation on to Lyndsey Hudson’s allegation about Jason Wall’s actions. This requires

an inference not supported by evidence which might have been available. Obviously, the investigation subsequently developed. The

gardaí obviously arrived at the view that the appellant should, in fact, be interviewed. There is no evidence how or why they did so.

There is no evidence either as to when they came to this view. Then later again, Stephen Wall’s statement emerged. But, by then,

the car had long since been disposed of. To my mind, to impose a duty to obtain this fingerprint evidence to support a retrospective

hypothesis that the appellant’s fingerprints might not have been on the steering wheel is unrealistic. It is not a “reasonable”

identification of the scope of investigative duty at the relevant time, that is, at or before the end of September 2005. The

possibility of there being such relevant evidence is raised in this appeal, but no more.

48. There are three other matters of significance. First, I do not believe that any of the authorities cited are to the effect that an

applicant’s good or bad character is relevant. Second, were it relevant, it would be material to mention that, in the aftermath of the

accident, it is said the accused was arrested by a member of An Garda Síochána for drunken, aggressive behaviour at the scene. He

was not prosecuted. Third, I do not believe that any of authorities are to the effect that the nature of the penalties for offences is a

relevant consideration. Whether there is a penalty at all depends on whether there is a trial in accordance with law.

49. I should say that I entirely agree with concerns expressed in judgments of this Court today that the gardaí conduct their

investigations fully and fairly. However, I am unable to agree that, in some sense, the primary burden of proof in this judicial review

lay on the respondent. The issues of burden of proof and standard of proof were considered earlier in this judgment. It is difficult to

avoid the conclusion that many of the differences between the majority and minority judgments arise because of the manner in which

the term “clear case” is interpreted, and in the approach to the burden and standard of proof in these cases. In the dissenting

judgment herein, it is said quite accurately that certain matters were in the exclusive knowledge of the gardaí. This is true, but this

does not alter the fact that the civil standard of proof applies, and that the onus is on the appellant to persuade a court in

accordance with this standard.

50. To what extent is it legitimate to draw inferences? To my mind, the answer lies in the nature of the case. This is a judicial review

case brought by the appellant as applicant. The civil standard of proof applies. Lyndsey Hudson was interviewed under caution. This

would suggest she was a suspect at that time. This is supported by the forensic reports at the time. Jason Wall was interviewed in

December 2005 and January 2006. He was by then under suspicion. The burden of proof lies on the appellant. He was advised by

highly experienced counsel and solicitors. It may therefore be seen as a given that the choices made in the case were deliberate

choices. It was open to the appellant to serve a notice to cross-examine on the garda deponent. That garda witness could have

been questioned as to what, precisely, was the investigators’ state of mind in August/September 2005. He could have been asked

when, precisely, the gardaí formed views as to Jason Wall’s involvement in the events. The evidence did not demonstrate that they

had formed any such view on this point in August/September 2005. If it had, the position could be different. The choice here is in no

sense a “Catch-22” – it was fundamental to the appellant’s case to establish when a duty arose. This is for the appellant to establish

on the basis of probability.

The public interest

51. I move to a different point. The issue in this appeal is the fairness and propriety of the garda investigation into a tragic accident.

There is a strong public interest in ascertaining what occurred, and whether the late Emma Wall’s death resulted from a criminal act.

This in no way derogates from the fact that, at trial, the obligation on the prosecution is to prove the case against the appellant

beyond reasonable doubt. Article 38 of the Constitution identifies the mechanism adopted by the people for ascertaining guilt or

innocence – that is a trial in due course of law, where the trial judge will be the arbiter of constitutional fairness.

52. This case is in no way comparable with that of Captain Dreyfus, or the Guilford Four. The issue here is, rather, what happened to

cause this, as yet, unexplained road traffic collision. There is no evidence here of a State cover-up;, or a frame-up; of false, invented

testimony which cannot be verified; or biased expert evidence on handwriting; or a State vendetta against an accused, or

suppression of evidence, or gross scientific misconduct, or negligence in the obtaining or maintaining of DNA samples. There is no

evidence, either, of any affirmative acts by the police taken with the intention or effect of denying a fair trial to an accused. There is

simply, an elapse of time until Jason Wall’s first interview on the 19th December, 2005.

53. I am not persuaded therefore this case is comparable with Youngblood v. Arizona 488 U.S. 51 (1988), where the absence of

forensic evidence, through clear police neglect in storing clothing, meant that the identification evidence given by that young victim

of a vicious sexual assault could not be successfully challenged, as a result of which the jury convicted. DNA evidence carried out to

an appropriate level would have exculpated the accused who was the victim of a serious miscarriage of justice. These cases are

highly relevant as reminders of the duty of investigators, but they are, to my mind, immaterial to the issue here, which is whether or

not the gardaí should have carried out a fingerprint test on the steering wheel of this car. There are no issues of identification in this

case per contra Murphy or Youngblood. What is at issue is what, precisely, caused this collision and whether, seen objectively, the

gardaí should have carried out a fingerprint test in August or September 2005.

54. Insofar as it might have been suggested that there was an additional duty on the gardaí to carry out a fingerprint test on the

radio dial, I am unable to agree there was such a duty. A perusal of the appellant’s written submissions confines the case to the

absence of a fingerprint test on the steering wheel. I did not understand the case to be in any way broadened in oral submissions to

this Court. I do not think it admissible to take into account matters which were extraneous to the case as it was put before this

Court in oral and written submissions.

55. The decided case law focuses very clearly on the duty of the gardaí towards a person who is under active investigation,

frequently, a person who has already been arrested or charged. That was the position in Murphy. There is no evidence that Jason

Wall was at the relevant time period, such a person, or as to the extent to which he was a suspect. That relevant time period is

when the Honda car was available. The issue here is not whether there is anything retrospective about the fingerprint hypothesis; but

precisely because it is a hypothesis, or a possibility. Such characterisations are entirely appropriate; where the difference lies is

whether such hypothesis or possibility could give rise to a duty in circumstances where there is no evidence other than Lindsay

Hudson’s statement as to the state of knowledge, or even as to the opinions of the investigating gardaí at the time the evidence

became unavailable. In Murphy, there was a far closer relationship of proximity in that the accused had been arrested, charged and

was legally represented, had already been before the courts, and, vitally, the request for fingerprint tests had been made.

56. I am unable either to agree with a suggestion that this is a “lost evidence” case. To so characterise it, in my view, does no

justice to the English language. It is a matter of first impression. What is the main point in the case? The immediate answer is the

right answer. It is the appellant’s contention that the gardaí should have carried out a fingerprint test in August/September 2005. I

find it extremely difficult to understand how this can be described therefore as a “lost” evidence case. It is more comfortably

classified as a case where the gardaí, allegedly, failed to seek out or obtain evidence. To characterise it otherwise is to my mind to

mischaracterise it.

57. To assert a particular form of duty, it is necessary to establish clearly the parameters of that duty in the first place. What are the

focal points and the range of the duty? They are not limitless. With these rhetorical questions in mind, I find that what was being

proposed by the appellant was, in fact, a “retrospective” duty, that is, one where the case advanced is based on what occurred

some months afterwards, from when Jason Wall was first interviewed on the 19th December, 2005, and thereafter. Had the

evidence established that Jason Wall was in a position where the gardaí owed a duty to him in August/September 2005, or that

timely requests for forensic tests would have been made, this would have been quite a different case. The very fact that these

divergences of interpretation have emerged I think reinforces the case for a review of this jurisprudence.

Duties of An Garda Síochána

58. I would not wish any of these last observations to detract from the vital importance of maintaining the integrity of criminal

investigation procedures. The experience in our State, and others, demonstrates the need for public trust. That trust, where

necessary, must be reinforced by judicial verification. If garda standards are not maintained, public and jury confidence in garda

testimony is undermined not just in one case, but in all cases. It is not sufficient to merely say that this consideration is a matter of

merely public interest; the point is of such importance so as to say that the public have a right to ensure that investigative

standards of fullness and fairness are maintained.

Decision

59. For the reasons given, I would dismiss the appeal. In so doing, I wish to express my agreement with the judgments delivered by

Denham C.J., O’Donnell J., and Clarke J. on the issue.

Costs

60. The respondent has brought a notice to vary in relation to the High Court judge's order not to award costs to either side. That

issue remains to be addressed, and the parties will be given an opportunity to address the court on it.