McFarlane v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman,Mr. Justice Kearns
• Judgment Date: 07 March 2006
• Neutral Citation: [2006] IESC 11
• Court: Supreme Court
• Docket Number: [S.C. No.
• Date: 07 March 2006

MCFARLANE v DPP & SPECIAL CRIMINAL COURT

Between:

BRENDAN McFARLANE

Applicant/Respondent

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent/Appellant

and

THE MEMBERS OF THE SPECIAL CRIMINAL COURT

Respondent

[2006] IESC 11

Murray C.J.

Hardiman J.

Geoghegan J.

Fennelly J.

Kearns J.

315/03

49/06

THE SUPREME COURT

CRIMINAL LAW:

Evidence

Physical evidence - Items found at crime scene forensically examined for fingerprints -Items allegedly bearing fingerprints of accused - Items subsequently lost while in custody of gardaí - Photographs taken in situ available for comparison - Forensic analysis preserved - Secondary evidence - Test - Whether real risk of unfair trial - Murphy v DPP [1989] ILRM 71 and Z v DPP [1994] 2 IR 476 applied; Braddish v DPP [2001] 3 IR 127 and Dunne v DPP [2002] 2 IR 305 distinguished; Bowes v DPP [2003] 2 IR 25 considered - Delay - Pre-charge delay - Distinction between delay prior to and subsequent to charge - Pre-charge delay where insufficient evidence to charge accused not interference with right to expeditious trial - Actual prejudice required to be established -Hogan v President of the Circuit Court [1994] 2 IR 513 and O'Flynn v Clifford [1988] IR 740 applied - Respondent's appeal allowed (315/2003 & 49/2006 - SC -7/3/2006) [2006] IESC 11, [2007] 1 IR 134 McFarlane v DPP

Facts: The applicant sought to prohibit his trial on the basis of prejudicial delay and on the basis that during the time which had elapsed certain exhibits had gone missing.

Held by the Supreme Court (Murray CJ; Hardiman; Geoghrgan; Fennelly and Kearns JJ) in allowing the appeal and refusing relief to the applicant that the delay of which the applicant complained was entirely pre-charge delay and the evidence on which to bring a charge was not available until just before he was in fact charged. The gardai had been in breach of their duty to preserve the evidence but this breach had not resulted in the loss of that evidence in an independently verifiable form.

Reporter: R.W.

OFFENCES AGAINST THE STATE ACT 1939 S30

CRIMINAL LAW (JURISDICTION) ACT 1976

O'FLYNN v CLIFFORD 1988 IR 740

HOGAN v PRESIDENT OF THE CIRCUIT COURT 1994 2 IR 513

MURPHY v DPP 1989 ILRM 71

BOWES & MCGRATH v DPP 2003 2 IR 25

Z v DPP 1994 2 IR 476 1994 2 ILRM 481

SCULLY v DPP 2005 1 IR 242 2005 2 ILRM 203

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

DUNNE v DPP 2002 2 IR 305 2002 2 ILRM 241

CROSS EVIDENCE 5ED 1979 15

CRIMINAL EVIDENCE ACT 1992 S30

MCGRATH EVIDENCE 2005 691

O'CALLAGHAN v JUDGES OF DUBLIN METROPOLITAN DISTRICT COURT 2004 2 IR 442

1 JUDGMENT of Mr. Justice Hardiman delivered the 7th day of March, 2006.

2 Brendan McFarlane is charged with three offences: possession of a firearm with intent to endanger life between the 25th November, 1983 and the 16th December, 1983, at the Derradda Wood, Drumcroman, Ballinamore, Co. Leitrim; possession of a firearm at the same time and place in such circumstances as to give rise to a reasonable inference that he did not have it in his possession for a lawful purpose and with falsely imprisoning Donald James Tidy by unlawfully detaining him against his will between the 24th November, 1983, and the 16th December, 1983. The applicant/respondent (hereafter the applicant) has sought to prohibit his trial on these charges on the basis of prejudicial delay and secondly on the basis that during the time which has elapsed certain exhibits have gone missing. The significance of these exhibits is that it is alleged by the prosecution that they were found at the place where Mr. Tidy was unlawfully held and that they bore the applicant's fingerprints. Mr. Tidy was held outdoors in wooded countryside between the 25th November, 1983, and the 16th December of the same year. When the security forces came upon the place there was a gunfight between them and those holding Mr.Tidy. In the course of this two members of the security forces, recruit Garda Sheehan and Private Kelly, died. Mr. Tidy was rescued and removed from the area by security forces. The area in question is that identified in the charges, near Ballinamore, Co. Leitrim.

3 The items on which the applicant's fingerprints were allegedly found were the following:

4 (a) A North Connaught Farmer's one litre milk carton with a sell by date of the 16th December, 1983,

5 (b) A plastic container,

6 (c) A cooking pot.

7 In circumstances discussed below, the applicant was arrested on the 5th January, 1998, and subsequently charged with the above offences. The applicant was unsuccessful in the High Court on the second of these points and the Director has appealed to this Court.

The delay.

8 From the affidavit of Detective Superintendent John McElligott it appears that, in the aftermath of the rescue of Mr. Tidy the applicant was suspected of involvement in his kidnapping and false imprisonment. Details of him were circulated through garda channels and in particular through Fógra Tora in January, 1984. It appears that the applicant had been imprisoned in Northern Ireland since 1975, serving a long sentence of imprisonment for his part in the IRA bombing of a bar on the Shankhill Road, Belfast, in which five people were killed. However, on the 25th September, 1983, the applicant escaped from the Maze Prison together with other prisoners. In January, 1986, the applicant was arrested in the Netherlands and was found to be in possession of a stolen or forged Irish passport. On the 3rd December, 1986, he was extradited from the Netherlands back to Northern Ireland. From that time until some time shortly prior to his arrest he was serving his sentence in Northern Ireland and this fact was known to the Gardaí.

9 Superintendent McElligott says that the Gardaí were very conscious of the fact that the applicant's fingerprints had been found on the three items described above, found at the scene of the camp or hide where Mr. Tidy had been held. They considered that the applicant should be sought for interview in relation to the false imprisonment of Mr. Tidy and associated crimes, but that there was then insufficient evidence to commence proceedings against him. They intended to question him if possible while detained under s.30 of the Offences against the State Act. For these reasons his extradition from Northern Ireland was not sought in connection with these crimes, and nor was it sought to have him prosecuted under the Criminal Law (Jurisdiction) Act, 1976, while he was in prison in Northern Ireland. Equally, he was not interviewed while serving the sentence in Northern Ireland because it was believed he would not co-operate in any such venture and that he would be entitled to refuse to see any garda who sought to interview him while in prison in Northern Ireland.

10 Subsequent to his arrest on the 5th January, 1998, the applicant was questioned by members of An Garda Síochána. According to those members for the most part he declined to answer questions and simply stared at the wall. It is alleged, however, that he made certain admissions while being questioned. Specifically, it is alleged that when asked about his involvement "in Dromcronan Wood" he said:

"On the advice of my solicitor I will not discuss it. I was there you can prove that but I will not talk about it".

11 The following conversation then took place:

12 Q. "What do you expect will happen to you?

13 A. I am prepared for the big one. I have already talked to her

14 [his girlfriend who had been to see him] about our future and house.

15 Q. Do you mean murder?

16 A. I am prepared for the worst."

17 These alleged statements, together with the fingerprints, constitute the case against the applicant. In the course of these proceedings the applicant did not affirm, comment upon, or deny any part of this evidence and of course he was not obliged to do so.

Effect of delay.

18 Insofar as the case is based on delay simplicitor, the applicant says that the State authorities could have invoked the procedures under the Criminal Law (Jurisdiction) Act, 1976, providing for him to be tried in Northern Ireland for these offences. This, they say, could have been done at any time since December, 1986, the date of his return to Northern Ireland having been extradited from the Netherlands. Equally, the authorities could have taken steps to extradite him for the purpose of preferring the present charges against him, at a much earlier date. He says that he had periods of parole from his sentence in Northern Ireland since 1993 and spent some of these in this jurisdiction: he was actually on parole here at the time of his eventual arrest. He further says that it is unfair or unreasonable to expect that the applicant "would be able to give specific instructions as to alibi or other matters of defence due to effluxion of time".

19 In reply to this, the Director of Public Prosecutions says that at all times after the identification of the applicant's fingerprints on the items found at the crime scene, the Gardaí wished to interview him. However, the matter went no further than that: the finding of these fingerprints and movable items was not sufficient evidence to charge him and any charge based on that evidence alone would have been dismissed. It was only upon interviewing him that the further evidence û his alleged admission of presence in the area where Mr. Tidy was held û resulted in the Director's decision to charge him with the present offences. The applicant's unavailability for interview was due to his having left Ireland, apparently in possession of a forged or stolen passport, and remaining in the Netherlands until 1986. Thereafter, it was due to his detention in Northern Ireland where he was serving a sentence....