Jason Wall v DPP

JurisdictionIreland
JudgeDenham C.J.,Mr. Justice Hardiman,O'Donnell J.,Mr. Justice Clarke,Mr. Justice MacMenamin
Judgment Date11 December 2013
Neutral Citation[2013] IESC 56
CourtSupreme Court
Docket Number[S.C. Nos. 416 & 433 of 2008]
Date11 December 2013
Wall v DPP
Between/
Jason Wall
Applicant/Appellant

and

The Director of Public Prosecutions
Respondent

[2013] IESC 56

Denham C.J.

Hardiman J.

O'Donnell J.

Clarke J.

MacMenamin J.

Appeal Nos. 416/2008 and & 433/2008
Appeal No: 416/2008 & 433/2008
416/2008

THE SUPREME COURT

CRIMINAL LAW

Judicial review

Application for order prohibiting trial - Real risk would not receive fair trial - Onus on applicant - Duty on gardaí to seek out and preserve relevant evidence - Effect of unavailable evidence - Fingerprint evidence - Role of court in judicial review - Role of trial judge in ensuring fair trial - Standard of review - Centrality of unobtained evidence - Scope of investigative duty - Public interest - Duty of gardaí towards person under active investigation - Whether duty owed by gardaí towards applicant as person under investigation at relevant time - Beatty v Rent Tribunal [2005] IESC 66, [2006] 2 IR191; Bowes v Director of Public Prosecutions [2003] 2 IR 25; Braddish v Director of Public Prosecutions [2001] 3 IR 127; Byrne v Director of Public Prosecutions [2010] IEHC 382, [2011] 2 IR 461; Conlon v Kelly [2002] 1 IR 10; D v Director of Public Prosecutions [1994] 2 IR 405; DC v Director of Public Prosecutions [2005] IESC 77, [2005] 4 IR 281; Daly v Director of Public Prosecutions (Unrep, SC, 11/4/1994); Dillon v O'Brien & Davis (1887) 20 LR Ir 300; Director of Public Prosecutions v Murphy [1989] ILRM 71; Dunne v Director of Public Prosecutions [2002] 2 IR 306; Finucane v McMahon [1990] 1 IR 165; In the Matter of The Criminal Law (Jurisdiction) Bill 1975 [1977] IR 129; Kennedy v Law Society (No 4) [2005] IESC 23, [2005] 3 IR 228; Ludlow v Director of Public Prosecutions [2008] IESC 54, [2009] 1 IR 640; McFarlane v Director of Public Prosecutions [2006] IESC 11, [2007] 1 IR 134; Nolan v Director of Public Prosecutions [1994] 3 IR 626; Savage v Director of Public Prosecutions [2008] IESC 39, [2009] 1 IR 185; Scully v Director of Public Prosecutions [2005] IESC 11, [2005] 1 IR 242; Sterling-Winthrop Group Ltd v Farben-Fabriken Bayer Aktiengesellschaft [1967] IR 97; The People (Director of Public Prosecutions) v Sweeney [2001] 4 IR 102; The State (O'Connell) v Fawsitt [1986] 1 IR 362; Z v Director of Public Prosecutions [1994] 2 IR 476; Arizona v Youngblood 488 US 51 (1988); Brady v Maryland 373 US 83 (1963); California v Trombetta 467 US 479 (1984); Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299; Compagnie Financiere du Pacifique v Peruvian Guano Company (1882) 11 QBD 55; Elias v Pasmore (1934) 50 TLR 196; R (Ebrahim) v Feltham Magistrates Court [2001] EWHC Admin 130; Ghani v Jones [1970] 1 QB 693; Hazlewood v The Queen [2013] NZCA 406; Jago v District Court of NSW (1989) 168 CLR 23; Killian v US 368 US 231 (1961); R (Rottman) v Commissioner for the Metropolis [2002] 2 AC 692; R v Glen [2003] NIJB 99; R v Mc Nally and Mc Manus (2009) NICA 3; The Queen v Edwards [2009] HCA 20; US v Robinson 414 US 218 (1973) and Weeks v US 232 US 383 (1914) considered - Non-Fatal Offences against the Person Act 1997 (No 26), s 13 - Criminal Law (Jurisdiction) Act 1976 (No 14), s 10 - Constitution of Ireland 1937, Art 38 - Appeal dismissed (416/2008 and 433/2008 - SC - 11/12/2013) [2013] IESC 56

Wall v Director of Public Prosecutions

Facts: The appellant was a rear seat passenger in a vehicle that was involved in a road traffic collision in August 2005 at Church Road, Ballybrack, County Dublin, and which resulted in the death of one of the other passengers. As well as the applicant and the deceased, the driver and two other passengers were present. According to the statements of two of the passengers of the vehicle, the accident occurred when the vehicle suddenly swerved onto the opposite side of the road and into the path of an oncoming vehicle, which was allegedly caused by the appellant when he reached between the front seats and grabbed the steering wheel of the car causing the driver to lose control. The appellant was subsequently arrested by Gardaí and charged with a criminal offence. The appellant brought a judicial review application to the High Court seeking an order for the prosecution to be discontinued on the basis that there was a real risk of an unfair trial as a result of Gardaí releasing the crashed motor vehicle from their custody without any fingerprint test having been carried out on the steering wheel. This application was dismissed.

An appeal was subsequently brought to the Supreme Court. It was argued that this failure of the Gardaí meant there was a real risk of an unfair trial due to the materiality of the missing evidence, and that at the very least, the vehicle should have been maintained to allow such fingerprint testing to be carried out on behalf of the appellant.

Held by O"Donnell J (with Denham CJ, Clarke J and MacMenamin J concurring; and Hardiman J dissenting) that Irish jurisprudence in determining the impact of missing evidence on the fairness of a trial was undeveloped. It was, therefore, said that a careful analysis of the law of other common law jurisdictions could give useful guidance for the area of law that was determined in the present case. In regards to Irish authorities, it was noted that the judgment in Dunne v. Director of Public Prosecutions [2002] 2 I.R. 305 made it clear that it was in the interests of justice that all possible available material should be gathered and all relevant evidence should be adduced. It was, however, held that this did not mean that it could be assumed that missing evidence was attributable to suppressive action by Gardaí.

In regards to the present case, it was held that there was nothing to suggest that Gardaí gathered evidence in such a manner as to exclude material that could be of benefit to the defence. In particular, there was no evidence before the Court that indicated that Gardaí had intentionally failed to conduct a fingerprint test of the steering wheel of the crashed motor car prior to it being released. In fact, it was noted that there was an extensive amount of evidence available to the Court. On that basis, it was said that in deciding whether a trial should be prohibited, an analysis of the materiality of the evidence which was not obtained should be considered in the context of the case as a whole. In the present case, it was undisputed that the interior of the car was so damaged that it could not be inspected at the scene. It was also undisputed that the appellant was a frequent visitor to the car due to his relationship with the driver and that he stated in his affidavit that 'the presence of my fingerprints in any part of the car, including the steering wheel, would probably have been of little evidentiary value'. Conversely, it was determined that if his fingerprints were not found this would only show that no fingerprints of his could be found and not that it was highly unlikely he had grabbed the steering wheel. As a result, it was held that it could not be argued that the missing evidence was so material that it justified a prohibition of the criminal trial of the appellant.

Appeal dismissed.

STATE (O'CONNELL) v FAWSITT 1986 IR 362

MURPHY v DPP 1989 ILRM 71

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

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

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S13

D v DPP 1994 2 IR 465 1994 1 ILRM 435

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

B v DPP 1997 3 IR 190 1997 2 ILRM 118

POLICE (AMALGAMATION) ACT 1925

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

ARIZONA v YOUNGBLOOD 1988 488 US 51

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S13

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S13(2)(B)

CRIMINAL LAW (JURISDICTION) ACT 1976 S10

CRIMINAL LAW (JURISDICTION) ACT 1976 S10(1)

CONSTITUTION ART 38

MCGRATH EVIDENCE 2005 411

STERLING-WINTHROP GROUP LTD v FARBENFABRIKEN BAYER 1967 IR 97

DILLON v O'BRIEN & DAVIES 1887 20 LR 300

HEALY, STATE v DONOGHUE 1976 IR 300

MCFARLANE v DPP 2008 4 IR 117 2008 IESC 7

EBRAHIM, R v FELTHAM COURT 2001 1 AER 831 2001 1 WLR 1293 2001 EWHC ADMIN 130

O'C (P) v DPP 2000 3 IR 87 2000/14/5259

SCULLY v DPP UNREP KEARNS 21.11.2003 2003/47/11429 2003 IEHC 92

QUINN, STATE v RYAN 1965 IR 70

BRADY v MARYLAND 373 US 83 (1963)

UNITED STATES v BRYANT 142 APP DC 132 439 F 2D 642 (1971)

PEOPLE v KELLY 62 NY 2D 516 478 NYS 2D 834

PEOPLE v MARR 177 AD 2D 964 577 NYS 2D 1008

FRECKLETON & SELBY EXPERT EVIDENCE VOL 4 1993 PARA 96.160

HEFFERNAN SCIENTIFIC EVIDENCE: FINGERPRINTS & DNA 2006 61

UNITED STATES v LOUD HAWK 628 F 2D 1139 (1979)

ARIZONA v YOUNGBLOOD 488 US 51 (1988)

DINGER SHOULD LOST EVIDENCE MEAN A LOST CHANCE TO PROSECUTE? STATE REJECTIONS OF THE US SUPREME COURT DECISION IN YOUNGBLOOD? AMERICAN JOURNAL OF CRIMINAL LAW SUMMER 2000 VOL 27 329

BAY OLD BLOOD, BAD BLOOD, AND YOUNGBLOOD: DUE PROCESS, LOST EVIDENCE & THE LIMITS OF BAD FAITH WASHINGTON UNIVERSITY LAW REVIEW 2000 VOL 86 NO 2 241

CONSTITUTION ART 34

C (D) v DPP 2005 4 IR 281 2006 1 ILRM 348 2005 IESC 77 2005 8 1599

DALY v DPP UNREP SUPREME 11.4.1994 1998/5/1167

R v MCNALLY & MCMANUS 2009 NICA 3

GLEN'S APPLICATION FOR JUDICIAL REVIEW, IN RE 2003 NIJB 99

JAGO v DISTRICT COURT OF NEW SOUTH WALES 1989 168 CLR 23 1989 87 ALR 577

HAZLEWOOD v R UNREP MALLON 29.8.2013 2013 NZCA 406

BRADY v MARYLAND 373 US 83 (1963)

CALIFORNIA v TROMBETTA 467 US 479 (1984)

Z v DPP 1994 2 IR 476 1994 2 ILRM 497 1994/7/1980

D (C) v DPP 2010 2 ILRM 49 2009/11/2494 2009 IESC 70

D v DPP 1994 2 IR 465 1994 1 ILRM 435

FINUCANE v MCMAHON 1990 1 IR 165 1990 ILRM 505 1990/3/634

CRIMINAL LAW (JURISDICTION) BILL 1975, IN RE 1977 IR 129

GILES G KENNEDY & CO v LAW SOCIETY OF IRELAND & ORS 2005 3 IR 228 2004 1 ILRM 178 2003/23/5416

BEATTY v RENT TRIBUNAL 2006 2 IR 191 2006 1 ILRM 164 2005/4/623 2005 IESC 66

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