Irwin v DPP & Judge Ryan

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 23 April 2010
• Neutral Citation: [2010] IEHC 232
• Judgment citation (vLex): [2010] 4 JIC 2307
• Court: High Court
• Date: 23 April 2010

[2010] IEHC 232

THE HIGH COURT

No. 25 JR/2009

Irwin v DPP & Judge Ryan

JUDICIAL REVIEW

BETWEEN

PATRICK IRWIN

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS AND HER HONOUR JUDGE PATRICIA RYAN

RESPONDENTS

MURPHY v DPP 1989 ILRM 71

BRADDISH v DPP & JUDGE HAUGH 2001 3 IR 127 2002 1 ILRM 151 2001/2/351

DUNNE v DPP 2002 2 IR 305 2002 2 ILRM 241 2002/7/1645

BOWES & MCGRATH v DPP 2003 2 IR 25 2003/6/1129

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

FAGAN v JUDGES OF THE CIRCUIT CRIMINAL COURT & DPP UNREP DUNNE 28.4.2006 2006/23/4765 2006 IEHC 151

MCFARLANE v DPP & SPECIAL CRIMINAL COURT 2007 1 IR 134 2006/35/7440 2006 IESC 11

LUDLOW v DPP 2009 1 IR 640 2008/36/7748 2008 IESC 54

SAVAGE v DPP 2009 1 IR 185 2008/58/12074 2008 IESC 39

SCULLY v DPP 2005 1 IR 242 2005 2 ILRM 203 2005/54/11281 2005 IESC 11

MCHUGH v DPP UNREP SUPREME 12.2.2009 2009/35/8699 2009 IESC 15

PERRY v JUDGES OF THE CIRCUIT CRIMINAL COURT & DPP UNREP SUPREME 28.10.2008 2008 IESC 58

COLE v JUDGE OF THE NORTHERN CIRCUIT & DPP UNREP MACKEN 17.6.2005 2005/11/2311 2005 IEHC 193

LEAHY v DPP & JUDGE O'SHEA UNREP CHARLETON 5.2.2010 2010 IEHC 22

KEOGH v DPP UNREP BIRMINGHAM 17.11.2009 2009/31/7649 2009 IEHC 502

BALTUTIS v JUDGE O'SHEA & ORS UNREP HEDIGAN 19.8.2009 2009/5/1026 2009 IEHC 402

MOLLOY v DPP UNREP DUNNE 13.1.2006 2006/40/8597 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 2009/20/4821 2009 IEHC 27

D (C) v DPP UNREP SUPREME 23.10.2009 2009/11/2494 2009 IESC 70

MISUSE OF DRUGS ACT 1977 S25

CRIMINAL LAW

Evidence

Failure to preserve evidence - Drugs offences - Surveillance operation - Applicant arrested in vehicle - Opportunity given to solicitors of accused to examine vehicle - Failure to preserve vehicle - Whether delay in bringing judicial review - Whether reason given as to what material might be gleaned from forensic examination - D (C) v DPP [2009] IESC 70 (Unrep, Supreme Court, 23/10/2009) approved; Murphy v DPP [1989] ILRM 71, Braddish v DPP [2001] 3 IR 127, Dunne v DPP [2002] 2 IR 305, Bowes & McGrath v DPP [2003] 2 IR 25, McKeown v Judges of Dublin Circuit Court (Unrep, Supreme Court, 09/04/2003), Fagan v Judges of the Circuit Criminal Court [2006] IEHC 151 (Unrep, Dunne J, 28/4/2006), McFarlane v DPP [2006] IESC 11 [2007] 1 IR 134, Ludlow v DPP [2008] IESC 54 [2009] 1 IR 640, Savage v DPP [2008] IESC 39 [2009] 1 IR 185, Scully v DPP [2005] IESC 11 [2005] 1 IR 242, Mc Hugh v DPP [2009] IESC 15 (Unrep, Supreme Court, 12/02/2009), Perry v Judges of the Circuit Criminal Court [2008] IESC 58 (Unrep, Supreme Court, 28/10/2008), Cole v Judge of the Northern Circuit [2005] IEHC 193 (Unrep, Macken J, 17/06/2005), Leahy v DPP [2010] IEHC 22 (Unrep, Charleton J, 05/02/2010), Keogh v DPP [2009] IEHC 502 (Unrep, Birmingham J, 17/11/2009), Baltutis v Judge O'Shea [2009] IEHC 402 (Unrep, Hedigan J, 19/08/2009), Molloy v v DPP [2006] IEHC 1 (Unrep, Dunne J, 13/01/2006), Kearney v DPP [2009] IEHC 347 (Unrep, Hedigan J, 15/07/2009), O'Driscoll v DPP [2006] IEHC 153 (Unrep, Dunne J, 25/01/2006), Byrne & McKenna v Judges of the Circuit Court [2007] IEHC 366 (Unrep, Hedigan J, 31/10/2007), English v DPP [2009] IEHC 27 (Unrep, O'Neill J, 23/01/2009) considered - Misuse of Drugs Act 1977 (No 12) s 25 - Relief refused (2009/25JR - Kearns J- 23/04/2010) [2010] IEHC 232

Irwin v DPP

1 JUDGMENT of Kearns P. delivered the 23rd day of April, 2010.

2 This is yet another application brought on behalf of an accused person seeking to stop a criminal trial from taking place. It invokes jurisprudence in relation to the obligation on the prosecution to seek out and preserve evidence and stresses the consequences alleged to flow from "missing evidence" as delineated in decisions of both the High Court and the Supreme Court.

3 The basic principles upon which this and other applicants rely in bringing such applications was enunciated by Lynch J. in Murphy v. D.P.P. [1989] I.L.R.M. 71 in which he stated at p.76:-

"The authorities establish that evidence relevant to guilt or innocence must insofar is necessary and practicable be kept until the conclusion of the trial. These authorities also apply to the preservation of articles which may give rise to the reasonable possibility of securing relevant evidence."

4 That case did not of itself prompt the onset of multiple applications to court to halt trials where allegations of failures to collect or preserve all possibly relevant evidential material were made. That process only began following the decision of the Supreme Court in D.P.P. v. Braddish [2001] 3 I.R. 127, a case in which an alleged failure by the gardaí to preserve video footage which had been in their possession led to a prohibition of the trial of the accused in that particular case. That decision was followed by a significant increase in applications to the courts to halt trials where some real or perceived injustice might be said to have arisen through the non preservation or failure to obtain a particular piece of evidence. In any given instance, the applicant for relief has invariably claimed that non availability of the particular item, be it a video or motor car or some other object, was highly prejudicial and would prevent the holding of a fair trial, regardless of rulings or directions which might be given by judges who, in most instances, were and are highly experienced in criminal law.

5 I do not wish to be taken as criticising the decision in Braddish itself, but the sheer volume of applications to court which ensued thereafter suggests to me that a perception took hold amongst practitioners that an application to court to halt a trial was an option worth exercising where any shortfall in prosecution proofs of this nature could be identified. Leaving aside ex tempore decisions of the High Court I am aware of judgments of either or both the High Court and Supreme Court in the following cases: Dunne v. D.P.P. [2002] 2 I.L.R.M. 241; Bowes v. D.P.P.; McGrath v. D.P.P. [2003] 2 I.R. 25; McKeown v. Judges of the Dublin District Court & Anor. [2003] I.E.S.C. 26; Fagan v. The Judges of the Circuit Criminal Court & Anor. [2006] I.E.H.C. 151; McFarlane v. D.P.P. [2006] I.E.S.C. 11; Ludlow v. D.P.P. [2008] I.E.S.C. 54; Savage v. D.P.P. [2008] I.E.S.C. 39; Scully v. D.P.P. [2005] 1 I.R. 242; McHugh v. D.P.P. [2009] I.E.S.C. 15; Perry v. D.P.P. [2008] I.E.S.C. 58; Cole v. A Judge of the Northern Circuit & Anor. [2005] I.E.H.C. 193; Leahy v. D.P.P. & Anor. [2010] I.E.H.C. 22; Keogh v. D.P.P. [2009] I.E.H.C. 502; Baltutis v. His Honour Judge Michael O'Shea & Anor. [2009] I.E.H.C. 402; Molloy v. D.P.P. [2006] I.E.H.C. 1; Kearney v. D.P.P. [2009] I.E.H.C. 347; O'Driscoll v. D.P.P. [2006] I.E.H.C. 153; Byrne & Anor. v. Judges of the Circuit Court & Anor. [2007] I.E.H.C. 366; English v. D.P.P. [2009] I.E.H.C. 27 and CD. v D.P.P. [2009] I.E.S.C. 70.

6 The following citation from the judgment of Fennelly J. delivered in C.D. v. D.P.P. [2009] I.E.S.C. 70 sums up very aptly the increasing sense of judicial exasperation with the growth of the cottage industry in bringing applications of this nature. In that case he stated:-

7 2 "1. This is yet another 'missing evidence' case. Since the decision of this Court in Braddish v Director of Public Prosecutions [2001] 3 I.R. 127, many applications have been made to the High Court, and many of them appealed to this Court, for prohibition of criminal trials on the ground that some piece of evidence has been lost or never been retrieved by the gardaí. This Court has heard no less than eight such appeals in less than two years. It is not easy to avoid the suspicion that a practice has developed of trawling through the book of evidence in search of the silver bullet-rather the absent missing bullet-which can put a stop to any trial.

8 …

9 24. As has been emphasised many times, this type of application must be considered in the context of all the evidence likely to be put forward at the trial. The key question whether there is a real risk of an unfair trial cannot be viewed in vacuo. Evidence is never perfect. Neither the prosecution nor the defence can be assured that all conceivable evidence will be available."

10 The legal principles applicable to such cases were comprehensively set out in the judgment of Denham J. in Ludlow v. D.P.P. [2008] I.E.S.C. 54 when she stated:-

"I am satisfied that the following are relevant principles:-"

(i) Each case requires to be determined on its own particular circumstances.

(ii) It is the duty of the Court to protect due process.

(iii) It is the duty of An Garda Síochána to preserve and disclose material evidence having a potential bearing on the issue of guilt or innocence, as far as is necessary and practicable.

(iv) The duty to preserve and disclose, as qualified by Lynch J. in Murphy v. D.P.P., cannot be defined precisely as it is dependent on all the circumstances of the case.

(v) The duty does not require An Garda Síochána to engage in disproportionate commitment of manpower and resources and must be interpreted in a fair and reasonable manner on the facts of the particular case.

(vi) In the alternative to keeping large physical objects as evidence, such as motor vehicles, it may be reasonable in certain circumstances for the garda to have a forensic report on the object.

(vii) However, an accused should, in general, be given an opportunity to examine or have examined such evidence.

(viii) If the evidence no longer exists the reason for its destruction is part of the matrix of the facts, but it is not a...