O'Driscoll v DPP

JurisdictionIreland
JudgeMs. Justice Dunne
Judgment Date25 January 2006
Neutral Citation[2006] IEHC 153
Judgment citation (vLex)[2006] 1 JIC 2505
CourtHigh Court
Date25 January 2006

[2006] IEHC 153

THE HIGH COURT

No. 568 J.R./2004
O'DRISCOLL v DPP
JUDICIAL REVIEW

BETWEEN

JASON O'DRISCOLL
APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT

CRIMINAL JUSTICE (THEFT & FRAUD) OFFENCES ACT 2001 S12(1)(b)

CRIMINAL JUSTICE (THEFT & FRAUD) OFFENCES ACT 2001 S3

BOWES & MCGRATH v DPP 2003 2 IR 25

MURPHY v DPP 1989 ILRM 71

MCKEOWN v JUDGES OF DUBLIN CIRCUIT COURT & DPP UNREP SUPREME 9.4.2003 2003/41/9855

SCULLY v DPP 2005 1 IR 242 2005 2 ILRM 203

DUNNE v DPP 2002 2 IR 305 2002 2 ILRM 241

BRADDISH v DPP & HAUGH 2001 3 IR 127 2002 1 ILRM 151

Z v DPP 1994 2 IR 476 1994 2 ILRM 481

D v DPP 1994 2 IR 465 1994 1 ILRM 435

CRIMINAL LAW

Evidence

Failure to preserve evidence - Forensic evidence - Delay - Risk of unfair trial - Z v DPP [1994] 2 IR 476 and Scully v DPP [2005] 1 IR 242 followed - Prohibition refused - (2004/568JR - Dunne J -25/1/2006) [2006] IEHC 153 O'Driscoll v DPP

The applicant applied by way of judicial review for inter alia a declaration that the failure on the part of the respondent to obtain and preserve relevant evidence, in particular the motor vehicle allegedly used in the offences alleged, was a breach of the applicant’s right to a fair trial in accordance with law.

Held by Dunne J. in refusing the application for judicial review that the applicant had not demonstrated that there was a real risk that by reason of the circumstances he could not obtain a fair trial.

Reporter: R.W.

1

JUDGMENT delivered by Ms. Justice Dunne on the 25th day of January, 2006

2

This is an application for judicial review seeking the following relief:

3

1. An order in the nature of an injunction restraining the respondent herein, his servants or agents from taking any further steps in the criminal prosecution entitled Circuit Criminal Court County and City of Dublin Bill No. 192/00 the People at the suit of the Director of Public Prosecutions and Jason O'Driscoll.

4

2. A declaration that the failure on the part of the respondent herein to obtain and/or preserve relevant evidence, in particular the motor vehicle allegedly used in the offences alleged, is a breach of the applicant's right to a fair trial in accordance with law.

5

3. A declaration that the applicant was entitled to be informed of the respondent's decision and/or intention not to preserve the said motor vehicle.

6

Other relief was sought including certain interlocutory relief which it is not necessary to consider.

7

There are two counts in the Bill No. the subject matter of these proceedings. The applicant is charged

8

a a. That on the 16th/03/2003 at Extra Vision, Greenhills Road, Tallaght, Dublin 24, having entered a building known as Extra Vision, Greenhills Road, Tallaght, Dublin 24 as a trespasser did commit an arrestable offence to wit, burglary therein contrary to s. 12 (1)(b) and (3) of the Criminal Justice (Theft and Fraud Offences) Act, 2001.

9

b b. That on the 16th/03/2003 at Extra Vision, Greenhills Road, Tallaght, Dublin 24 did without lawful excuse damage property to wit, an Opel Vectra, registration No. 99 D 54057, belonging to Mr. Fintan Lawlor intending to damage such property or being reckless as to whether such property would be damaged contrary to s. 2 of the Criminal Damage Act, 1991.

10

The applicant has instructed his legal advisors that he will be pleading not guilty to the charges.

Background
11

The case against the applicant alleges that he was involved in a ram-raid on an Extra Vision shop on 16th March, 2003. It is alleged that a dark green Opel Vectra was reversed into the shutters of the Extra Vision shop. The applicant was charged with the offences, as were two co-accused, namely Jason Murtagh and Garreth Connolly. The Gardaí came on the scene almost immediately. One person was apprehended sitting in the back seat of the car, namely Jason Murtagh, who has since pleaded guilty.

12

As stated by the solicitor for the applicant, Yvonne Bambury in her affidavit sworn herein on the 5th day of July, 2004, the evidence against the applicant is primarily identification evidence. Garda Vivienne Saunders stated in her statement which appears in the Book of Evidence that she entered the Extra Vision store and observed two male youths behind the counter in the store. She described the youths and indicated that they fled through a hatch in a connecting door behind the counter of the shop. She was unable to gain access to that part of the shop and went outside to search for the two individuals who fled and she says that she subsequently found two youths hiding under some bushes in the Hibernian Industrial Estate. She said she recognised the two youths as the same as those she had seen moments earlier behind the counter of the Extra Vision store. She described the youths as being red faced, sweating and breathing heavily. She said that the applicant herein was arrested by her colleague, Garda Woulfe, and when arrested was informed as to why he was arrested and that the applicant replied "I know, I know". Subsequently during his detention the applicant did not make any admissions.

13

It is now clear that forensic examination was carried out in respect of the vehicles involved and although it was not clear at the time of the swearing of the affidavit by Ms. Bambury for reasons which will become clear later, it is now the case that the State will be relying on forensic evidence to link the applicant to the driver's seat of the Opel Vectra used in the raid. It is the case that the vehicle concerned having been examined forensically was returned to the owner of the vehicle on or about the 18th March, 2003.

14

Part of the applicant's case as set out in the statement of grounds referred to above was that there had been a failure on the part of the respondent to subject the motor vehicle to forensic testing or other proper examination. In the course of the judicial review proceedings in respect of which leave was granted to apply for judicial review on 5th July, 2004, it became clear that in fact forensic testing had indeed been carried out and a report outlining the nature of the forensic evidence was furnished to the applicant's solicitor in January of 2005. Accordingly, the case before me proceeded on the basis that as the car was returned to its owner within two to three days of the alleged offences, the applicant herein has been deprived of an opportunity to conduct forensic testing in relation to the vehicle in circumstances where the prosecution has had that opportunity and thus, the applicant is not in a position to have a fair trial. It is not the basis upon which leave to apply for judicial review was granted but no issue was taken on this point.

15

Mr. Paul A. McDermott appeared on behalf of the applicant in this case and in the course of his written submissions he prepared a very helpful chronology of events in this case. It would be helpful to set out that chronology.

16

(i) 16th March, 2003 — Date of alleged offence. The applicant is arrested and detained.

17

(ii) 18th March, 2003 — the car is returned to its owner.

18

(iii) 11th December, 2003 — the applicant is charged with burglary and criminal damage.

19

(iv) 3rd March, 2004 — the charges are struck out.

20

(v) 31st March, 2004 — the applicant is recharged and a Book of Evidence is served. It is clear from the Book of Evidence that some forensic examination and testing has been carried out in respect of the car. The results are referred to in the book of evidence.

21

(vi) 2004 — the applicant's solicitor writes to the Chief Prosecution solicitor requesting a forensic examination of the car "that was allegedly damaged" by the applicant.

22

(vii) 26th April, 2004 — disclosure is provided by the prosecution but no response is made in respect of forensic evidence.

23

(viii) 30th April, 2004 — the applicant's solicitor writes again seeking a forensic examination of the car.

24

(ix) 11th May, 2004 — the applicant's solicitor writes again seeking a forensic examination of the car stating "our client instructs us to carry out a forensic examination of the Opel Vectra car …, that is the subject of the second charge against our client in the book of evidence."

25

(x) 27th May, 2004 — counsel for the prosecution indicates to counsel for the defence that the car was returned to its owner two or three days after the alleged incident.

26

(xi) 15th June, 2004 — the applicant's solicitor writes seeking an explanation as to what has happened to the car.

27

(xii) 17th June, 2004 — a response is received from the State but no indication is given as to the whereabouts of the car.

28

(xiii) 5th July, 2004 — leave for judicial review is sought and obtained.

29

(xiv) 22nd December, 2004 — in the affidavit sworn by Garda Woulfe it is indicated for the first time that there is finger print analysis available from the inside of the Extra Vision premises.

30

(xv) 4th January, 2005 — the applicant learns about the forensic report in respect of the car for the first time.

31

(xvi) 20th January, 2005 — in the affidavit of Ms. Mee it is indicated that a report is awaited from the forensic laboratory.

32

(xvii) 20th January, 2005 — Ms. Mee swears a supplemental affidavit exhibiting the report from the forensic laboratory.

33

In considering the chronology set out above it is clear that the applicant has been somewhat hampered in formulating this application for judicial review. The judicial review proceedings were formulated on the basis of a complaint that the Gardaí had failed to subject the car in question to an appropriate forensic examination and had handed the car back to its owner with undue haste. Therefore, the case proceeded on the basis that this was a missing evidence case. As a result of the matters which have come to light...

To continue reading

Request your trial
1 cases
  • Irwin v DPP & Judge Ryan
    • Ireland
    • High Court
    • 23 April 2010
    ...2006 IEHC 1 KEARNEY v DPP UNREP HEDIGAN 15.7.2009 2009/30/7386 2009 IEHC 347 O'DRISCOLL v DPP UNREP DUNNE 25.1.2006 2006/45/9664 2006 IEHC 153 BYRNE & MCKENNA v JUDGES OF THE CIRCUIT COURT & DPP UNREP HEDIGAN 31.10.2007 2007/7/1360 2007 IEHC 366 ENGLISH v DPP UNREP O'NEILL 23.1.2009 2009/20......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT