Bowes v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman
• Judgment Date: 06 February 2003
• Neutral Citation: [2003] IESC 9
• Court: Supreme Court
• Docket Number: [S.C. No. 92 of 2002]
• Date: 06 February 2003

BOWES & MCGRATH v. DPP

Between:

JAMES BOWES

Applicant/Appellant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

and

Between:

DEIRDRE McGRATH

Applicant/Appellant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

[2003] IESC 9

Keane C.J.

Murray J.

McGuinness J.

Hardiman J.

Geoghegan J.

02/92 & 02/88

THE SUPREME COURT

Synopsis:

EVIDENCE

Judicial review

Duty to preserve evidence - Criminal law - Fair procedures - Delay - Whether applicant could receive fair trial - Whether unfair to applicant to permit trial to proceed - Whether applicant's defence prejudiced (88 & 92/2002 - Supreme Court - 06/02/2003)

Bowes v DPP - [2003] 2 IR 25

Both cases involved matters relating to the preservation of evidence. In the case of Bowes the applicant had been stopped whilst driving a car and a quantity of drugs had been found. The car was seized and when the applicant sought to have the car technically assessed he was informed that the car had already been scrapped. The Garda Síochána had carried out forensic tests on the car which had elicited evidence. The applicant initiated judicial review proceedings and contended that the Gardaí in the interests of justice and fair procedures were obliged to inform an accused person of any intention to destroy evidence. In the High Court Ó Caoimh J refused the relief sought on the basis that it was clear that the car the applicant was driving was the one which was forensically examined by the gardaí. While the car should not have been disposed without reference to the gardaí handling the file it was fortuitous that a forensic analysis had been carried out. There was no obligation on the gardaí to retain the vehicle indefinitely. In the case of McGrath the applicant had been charged with dangerous driving as a result of an accident in which a motorcyclist died. When the applicant sought to examine the motorbike she was informed that it had been broken up for parts.

Held by the Supreme Court (Hardiman J delivering judgment; Keane CJ, Murray J, McGuinness J, and Geoghegan J agreeing) in delivering the following judgment. A major point of contrast in the two cases was the time of the request for access to the vehicles which in the case of Bowes was a few days prior to the trial and in the case of McGrath was within days of the service of the book of evidence. In the Bowes case there was no dispute that the applicant was in the car. There was a quantity of heroin found in the car. It could not be said that there existed a real loss of opportunity to rebut the prosecution's case and the relief sought would be refused. However in the McGrath case there was no question of tardiness, her solicitor had indicated that an examination of the vehicle might be required but no step was taken by the Gardaí to preserve it. The applicant had suffered the loss of a reasonable prospect of obtaining evidence to rebut the case against her and the further prosecution of the applicant would be restrained. Both cases illustrated the need for a more cohesive practice among the Gardaí regarding the preservation of pre-trial evidence.

1 Mr. Justice Hardiman delivered the 6th day of February, 2003. [NEM DISS

2 These two cases were heard one after the other and the principle submissions were common to each. Each is concerned with a situation in which the Gardai were at one stage in possession of an item of alleged evidential value, but parted with the possession of it before, it is claimed, the applicant had an opportunity of examining it.

3 While this broad factual matrix is common to each, the cases diverge widely in their details. These may be summarised as follows.

(a) Mr. Bowes case.

4 The case against James Bowes relates to the events of the 3 ^rdApril, 2000. It is alleged that on that date in Jame's Street, Dublin, he was in possession of heroin for sale or supply; that he unlawfully possessed heroin, and that he was in possession of the heroin for sale or supply where the market value of the heroin exceeded £10,000. No issue has been taken with the summary of the facts given by the learned trial judge ( Ó Caoimh J.) either in the Notice of Appeal or in argument. The prosecution say that the applicant was stopped at Jame's Street on the 3 ^rd April, 2000, while driving a Honda Accord car. The car was searched and a substantial quantity of heroin was found in the boot. The Gardaí took possession of the car and brought the applicant before the Court almost immediately. The case against the applicant was adjourned from time to time in the District Court between April 2000 and the 20 ^th September, 2000. On that date the charges were struck out in the District Court because the Book of Evidence had not been served. The applicant was recharged with the same offences on the 26 ^th April, 2001 and a Book of Evidence was served on the 17 ^th May, 2001. This disclosed that the Garda Technical Bureau had carried out a forensic examination of the vehicle on the 3 ^rd April, 2000 and found that what they believed to be the applicant's fingerprints were on a number of items found in the boot of the car. They also found a single fingerprint of the applicant's in the car.

5 After service of the Book of Evidence the applicant was sent forward for trail to the Dublin Circuit Criminal Court on the 31 ^st May, 2001. The case was mentioned in that Court on the 29 ^th June, 2001 and the applicant was arraigned there on the 17 ^th July of the same year. A trial date was fixed for the 13 ^thNovember, 2001. On that date, however, the case was adjourned for one week to the 20 ^th November, 2001. On the 15 ^thNovember, 2001 counsel for the applicant indicated to the Dublin Circuit Criminal Court that the matter was ready for trail the following week. However on the afternoon of the 16 ^th November, 2001 the applicant's solicitor sent a fax to the Chief State Solicitor's office requiring:-

6 2 "(1) Full details of all technical examinations carried out on the car 92D 7570 to include reports, photographs and any test results,

7 (2) All photographs of the car taken while in garda custody,

8 (3) Details of all movements of the car whilst in garda custody.

9 (4) Details of the date on which the car was destroyed".

10 It will be noted that this fax was sent on a Friday afternoon, the trial being fixed for the following Tuesday.

11 The State Solicitor replied the same day saying "Please state your reasons as to why at this late stage you are looking for the information contained in your correspondence". Later still on the same afternoon the applicant's solicitor replied saying "Please be advised that these are matters pertaining to our defence and are required".

12 At 10. 11 pm on the same Friday night the applicant's solicitor stated that he was intending to apply for an adjournment of the trial on the following Monday morning on the basis of "the current confusion in relation to the car which our client was travelling in at the time of his arrest", and also due to a recent bereavement. However, no application for an adjournment was actually made. Instead, on the morning of the trial date the applicant's counsel indicated that he was seeking judicial review in the High Court. It appears that the application for leave was made on that morning.

13 It transpired that, after the forensic examination on the day of the applicant's arrest, the car in question was stored in Blanchardstown Garda Station. There is a record that on or about the 8 ^thApril, 2001 a computer search was conducted in relation to the car to see if it had been reported stolen: it had not. It appears, though there is no direct evidence of this, that the vehicle was shortly thereafter removed from Blanchardstown Garda Station and scrapped. It also appears from the grounding Affidavit of the applicant that shortly before the 16 ^th November, 2001 the applicant's solicitors were informed by the Gardaí that the vehicle was not available for inspection as it had been destroyed at the Hammond Lane Foundry.

(b) Ms. McGrath's case.

14 Ms. Deirdre McGrath is charged with dangerous driving causing death. She was involved in a traffic accident at Inverin, Co. Galway on the 21 ^st March, 1999 in which a motorcyclist received injuries from which he later died. A summons alleging the offence was served on her on the 24 ^th September, 1999. Prior to that, on the 5 ^th August, 1999 the motorbike in question had, at the request of the deceased's family, been released to a motor cycle dealer. According to a fax from the investigating garda of the 9 ^th February, 2000 "the bike has been broken up for parts....". It seems that the engine was removed from it in November 1999 and the tyres in January 2000.

15 The applicant consulted a solicitor within days of service of the summons. On the undisputed evidence she had not previously consulted a solicitor but had been attending intensive counselling for her extreme distress in the aftermath of the accident. The solicitor consulted counsel who on the 11 ^th October, 1999 advised him to seek details of any forensic reports and to have both vehicles professionally examined. On the 20 ^th October, 1999 the applicant's solicitor sought various documents from the Gardaí including a "Motor Forensic Report" on the motorbike. On the 1 ^st November, 1999 the relevant Garda Superintendent replied that a Book of Evidence was being prepared and "all the information requested by you will be contained in this book". The solicitor's attendance note of the same date, which was the return date of the summons, records that he indicated to the Court that the defence wished to have the case adjourned until after Christmas to enable them to have time to consider the Book of Evidence, which had not yet been served, "and indeed perhaps engage a forensic engineer ourselves to examine the motorcycle which was involved in the accident". The case was adjourned to the 17 ^th January. On the...