Ludlow -v- DPP, [2008] IESC 54 (2008)

Docket Number:311/05
Party Name:Ludlow, DPP
Judge:Hardiman J.
 
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THE SUPREME COURT

Murray C.J. 311/05

Denham J.

Hardiman J.

DENIS LUDLOW

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS and His HONOUR JUDGE MICHAEL O'SHEA

Appellant

JUDGMENT of Mr. Justice Hardiman delivered on the 31st day of July, 2008.

Over the last number of years, the Superior Courts have had to consider a number of cases where persons charged with criminal offences seek relief by way of judicial review because the gardaí have lost or destroyed evidence, or given items of evidence to third parties who have themselves irretrievably lost or destroyed them. A representative sample of such cases are Braddish v. DPP [2001] 3 IR 127; Dunne v. DPP [2002] 3 IR 305; Bowes v. DPP; McGrath v. DPP [2003] 2 IR 25; Scully v. DPP [2005] 1 IR 242 and McFarlane v. DPP [2008] IESC 7.

An earlier case on the same topic led to the seminal judgment of Lynch J. in Murphy v. DPP [1989] ILRM 171.

This series of cases featured missing evidence of various different kinds. The items in question were as small as video tapes and as large as motor vehicles. From the pattern of losses it appears that An Garda Síochána have considerable difficulty in retaining items of evidence in secure custody for any period of time. It is not clear, and it is not relevant, whether this difficulty arises from procedures (or the lack of them) within An Garda Síochána itself or from deficiencies in the premises and facilities provided for the gardaí. The pattern of cases led the Court to observe at p.41 of the report in McGrath, which was also a case of dangerous driving causing death:"Dangerous driving causing death is an offence whose seriousness has been underlined by the fairly recent increase of the maximum penalty to ten years imprisonment. Experience shows that it is almost unique, amongst offences not requiring a specific intent, in carrying possibility of a significant custodial sentence for a convicted person of good character. One would hope that its very seriousness would, in future cases, ensure that items of manifest evidential potential are properly preserved. These two cases tend to indicate that there may be a need for a more cohesive practise amongst the gardaí in the preservation or disposal pre-trial of evidence which is potentially relevant to the defence in the criminal proceedings. The adoption and observation of suitable guidelines might assist in avoiding pre-trial litigation of this nature".

In the case of Bowes v. DPP, which was heard jointly with McGrath's case in this court, the gardaí had lost a motor car which, the prosecution said, had been used for the transportation of a significant quantity of drugs, and had been seized by the gardaí. In the circumstances of the case the Court refused to prohibit the prosecution: when the matter proceeded in the trial court it transpired that the gardaí had also (but separately) lost a considerable quantity of drugs, large in bulk and high in value, alleged to have been in the car the defendant was driving, which had itself been lost earlier.

From the fact that "lost evidence" cases continue to come before the Courts it appears that there is a serious problem at least in some units of An Garda Síochána in relation to the preservation of items of evidential significance.

There may have been a time when Road Traffic offences, even those involving fatalities, were regarded as not being criminal cases in the true sense of the term and therefore perhaps were processed or investigated in a somewhat careless or superficial manner. This is no longer the case. The considerable increase in the maximum penalty has already been noted. Only a newspaper reader's knowledge of the law is necessary to underline the fact that these are effectively the only sort of case where a respectable person without previous convictions may go to jail for a significant period of years in respect of an offence with no requirement for specific criminal intent. No doubt this is as it should be: certainly the public authorities pay for advertising which stresses this specific fact in the interest of road safety, in ads where the besuited driver is led off to a dark cell, and a heavy metal door is ominously slammed behind him.

These are not the only changes in the enforcement of Road Traffic laws. The days when the garda evidence was given from a scrawled drawing in a note book, with all distances and times approximate only, have also passed away. Nowadays serious road traffic accidents are investigated by highly trained and specialised accident investigators who are members of An Garda Síochána. The map prepared in this case, for instance, is of a professional architectural standard, in total contrast to the crumpled scrawls one remembers from bygone years. In many cases, of which this is one, there is no direct evidence presented of dangerous or deficient driving: the evidence is entirely technical, indirect and leaves the offence to be inferred, so that any positive defence must be technical as well. The defendant will often require to deploy expert testimony in making his defence. Even with this dramatically increased sophistication, however, physical evidence continues to be lost or mislaid or given to a third party who subsequently disposes of it, sometimes frustrating the work of this new, highly skilled cadre of investigators. This Court has given warnings and advice on the subject, from my own words in McGrath (2003) to those of Denham J. in Savage just a few weeks ago: they have been ignored.

Factual background.

In the present case the defendant, Mr. Ludlow, is charged with dangerous driving causing death and a number of summary offences, some of which will be discussed below. It appears that on the 8th October, 2002, he was driving a lorry belonging to his employer, a Mr. Snowden, at a place called Roscat, Tullow, Co. Carlow. A Renault Scenic was coming in the opposite direction, from the direction of a place called Fighting Cocks. The accident occurred at about 2pm on that day: it was raining quite heavily and the road surface was greasy. It had in fact been raining for most of the day.

According to the proposed evidence of the eye witnesses, neither vehicle was travelling particularly or excessively fast, and the accident occurred when the lorry "slid on to its incorrect side of the road and collided with the deceased's vehicle". There is no question of drink, drugs or fatigue, on the evidence.

In this collision the driver of the Scenic, Mr. O'Neill, sustained injuries as a result of which he unfortunately died three days later.

The whole of the case made against the applicant is that certain tyres on his vehicle were excessively worn: it is said that the...

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