O'Brien v DPP

• Jurisdiction: Ireland
• Judge: Denham J.
• Judgment Date: 16 December 2008
• Neutral Citation: [2008] IESC 67
• Court: Supreme Court
• Date: 16 December 2008

[2008] IESC 67

THE SUPREME COURT

Denham J.

Fennelly J.

Finnegan J.

[Appeal No: 324/05]

O'Brien v DPP

Between/

Garrett O'Brien

Applicant/Respondent

and

The Director of Public Prosecutions

Respondent/Appellant

MURPHY v DPP 1989 ILRM 71

BOWES & MCGRATH v DPP 2003 2 IR 25

SAVAGE v DPP UNREP SUPREME 3.7.2008 2008 IESC 39

LUDLOW v DPP UNREP SUPREME 31.7.2008 2008 IESC 54

PERRY v DPP UNREP SUPREME 28.10.2008 2008 IESC 58

CRIMINAL LAW

Evidence

Failure to preserve - Dangerous driving - Failure to preserve paper with registration number allegedly provided by independent witness - Loss of opportunity to have writing tested by handwriting expert - Whether trial judge erred in holding serious risk of unfair trial - Whether trial judge erred regarding significance of loss of piece of paper - Applicable principles - Due process - Duty of gardaí to preserve and disclose material evidence as far as necessary and practicable - Animosity between family of applicant and family of witnesses - Lost evidence coupled with pre-existing hostility - Absence of independent witness - Whether real risk of unfair trial that could not be avoided by directions - Murphy v DPP [1989] ILRM 71, Bowes v DPP [2003] 2 IR 25, Savage v DPP [2008] IESC 39 (Unrep, SC, 3/7/2008), Ludlow v DPP [2008] IESC 54 (Unrep, SC, 31/7/2008), Perry v DPP [1994] 2 IR 476, Z v DPP [1994] 2 IR 476 and D v DPP [1994] 2 IR 465 considered - Order of prohibition affirmed (324/2005 - SC - 16/12/2008) [2008] IESC 67

O'Brien v DPP

Facts: The Director of Public Prosecutions sought to appeal the decision of the High Court restraining the prosecutions of the applicant on a charge of dangerous driving causing serious bodily harm. The issue in the case related to lost evidence and whether its absence created a real risk of an unfair trial. The applicant had been injured by a car. An unidentified woman had provided a piece of paper with the car registration of the car in question which had been given to the alleged recipient, another witness, and the piece of paper had now been lost. The issue arose as to whether the loss of the paper had deprived the applicant of the right to test the handwriting of alleged recipient of the paper and witness to the accident. There was a long history of animosity between the applicant and the alleged recipient of the paper.

Held by the Supreme Court per Denham J. (Fennelly, Finnegan JJ. concurring), that the facts of the case were particularly unusual. There was clear animosity between the family of the applicant and the witness. This was not a case about lost evidence solely but rather the pre-existing hostility added a new dimension to the cases. The lost evidence was a piece of paper with a number on it and the person who provided the paper was unavailable and unknown. The witnesses were connected to the applicant. There was a real risk of an unfair trial which could not be avoided by direction of the trial judge. The judgment of the High Court would be affirmed.

Reporter: E.F.

16 th day of December, 2008 by Denham J.

Denham J.

Judgment delivered by Denham, J. [nem diss]

1 This is an appeal by the Director of Public Prosecutions, the respondent/appellant, "the D.P.P.", from the judgment and order of the High Court (Peart J.), restraining the D.P.P. from prosecuting Garrett O'Brien, the applicant/respondent, "the applicant", on a charge of dangerous driving causing serious bodily harm to another person on the 24 ^th August, 2003, at Bray, Co Wicklow, and four other offences arising out of the same incident.

2 The issue in the case is "lost evidence", and whether its absence creates a real risk of an unfair trial. The relevant law is to be found in Murphy v. Director of Public Prosecutions [1989] I.L.R.M. 71; Bowes & McGrath v. Director of Public Prosecutions [2003] 2 I.R. 25; Savage v. Director of Public Prosecutions [2008] IESC 39; Ludlow v. Director of Public Prosecutions [2008] I.E.S.C. 54; Perry v. Director of Public Prosecutions [2008] I.E.S.C. 58.

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

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

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

"… it was about 1.35 p.m. I parked the car on the verge of the pavement outside the Green Tree facing Cloverhill. I sat in the car and my wife went into the shop. As I was sitting in the car, Stephen Downey came over to me on my side, driver's side of the car, he said to his wife "I'll get a left home ( sic) with Paddy, you go ahead" I said "get in Stevie". He walked around the back of the car, I seen a car coming facing me, it was doing 45-50 miles an hour. I thought it was heading for my car. It was a red maroon coloured car. I shouted "Stevie watch out". The car came towards me from the Cloverhill side, Stevie was heading for the passenger front door, the car swerved in, I thought it was heading for me but it was heading for Steve. I shouted at Steve "watch out Steve the O'Brien's" I recognised the driver of the red car as Gareth ( sic) O'Brien and the front passenger was Keith O'Brien, there was people in the back but I didn't recognise them. The car hit Steve, my car started shaking. I heard Steve being dragged along. I was watching him, the red car pushed Steve against my car. I got out and saw Steve lying on the ground, there was women screaming. Steve was folded up on the ground, there was blood coming out of his head. I saw the car head down toward Ardmore Studios, down toward Bray. I bent down to Steve and I started shouting 'Steve, Steve'. There was a good crowd gathered around him and they were trying to talk to him someone came with two pillows and put them underneath his head. I don't know who they were. Another woman got out of a car with a first aid kit, she started wiping the blood off Steve's head, arms and legs. I dialled 999 straightaway (sic) and I rang Bray Guards straightaway ( sic). A woman came over to me with a piece of paper and a number written on it 00 D 81303, then the ambulance came and two patrol cars came."

6 Brendan Maloney deposed that he was informed by the investigating Garda, Garda Lisa O'Connor, on the first day of the sittings of Wicklow Circuit Criminal court held on the 7 ^th December, 2004, that the piece of paper with the number written on it had been lost by the prosecution.

7 Brendan Maloney deposed:-

"I say that the loss of the piece of paper has deprived the Applicant of the opportunity of submitting this evidence for testing by an independent handwriting expert so as to establish whether or not Paddy Moorehouse, the alleged recipient of this evidence, was in fact the author of this piece of paper."

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

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

"I say that the Applicant denies the charges contained in the Book of Evidence and intends to plead not guilty at his trial. I say that the history of the relationship between the Applicant's family and Paddy Moorehouse's family is relevant to the case. I say that there is a long history of animosity and ill will between the Applicant and the Moorehouse family which in the past has resulted in violence being resorted to. I say that the Applicant believes that Paddy Moorehouse is ill disposed towards him. I say that the Applicant believes that the extent of the ill will towards him is such that Paddy Moorehouse would have no qualms in nominating him as the culprit for serious criminal offences, and that this is what has occurred in this case."

10 Brendan Maloney deposed that as solicitor to the applicant and members of his family he knew of events, which he related, illustrating the animosity between the applicant and Paddy Moorehouse. He deposed that this gave rise to the applicant's claim that Paddy Moorehouse has wrongly accused him of the offences before the Court, and is prepared to give evidence against him which is untruthful.

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

2 "2. I am a member of the Gardaí attached to Henry Street Garda Station in the City of Limerick. On August 24, 2003, when I was attached to Bray Garda Station in the County of Wicklow, I attended at the scene of a traffic accident on Herbert Road, Bray in the County of Wicklow, a public place. Garda Paul Spillane of Bray Garda Station was with me. We had received a call while on patrol from Bray Garda Station at approximately 2.05 p.m. informing us about the accident and we proceeded there immediately. When we arrived at the scene, we were informed by a woman whom I now know to be Mrs Donna Downey of 16 Ard na Greine, Bray, that her husband Stephen Downey had been knocked down and had been taken by ambulance to St. Columcille's Hospital.

3 I say that also present at the scene was a person whom I now know to be Paddy Moorehouse of 7A Oldcourt Park in Bray who claimed to have witnessed the accident. He claimed that a motor car registration number 00 D 81303 was the vehicle responsible for the damage and injury caused. He handed me a piece of paper on which was written the...