McKeown v Judge of the Dublin Circuit Court

• Jurisdiction: Ireland
• Judge: Mr Justice McCracken
• Judgment Date: 09 April 2003
• Neutral Citation: [2003] IESC 26
• Court: Supreme Court
• Date: 09 April 2003

[2003] IESC 26

THE SUPREME COURT

Geoghegan J.

Fennelly J.

McCracken J.

105/02

MCKEOWN v. JUDGES OF DUBLIN CIRCUIT COURT & DPP

Between:

Gavin M c Keown

Applicant / Appellant

AND

The Judges of the Dublin Circuit Court And the Director of Public Prosecutions

Respondents

Citations:

MURPHY V DPP 1989 ILRM 71

DILLON V O'BRIEN & DAVIES 1887 20 LR 300

HEALY, STATE V DONOGHUE 1976 IR 300

ROGERS V DPP 1992 ILRM 695

BRADDISH V DPP 2001 3 IR 127 2002 1 ILRM 151

DUNNE V DPP 2002 2 ILRM 241

BOWES V DPP UNREP SUPREME 6.2.2003

MCGRATH V DPP UNREP MURPHY 20.12.2001

Synopsis:

CRIMINAL LAW

Trail

Leave - Prohibition - Fair trial - Whether real risk of unfair trial (105/2002 - Supreme Court - 9/4/2003)

McKeown v Judges of the Dublin Circuit Court

The applicant applied for leave to apply for judicial review for an order of prohibition restraining the respondents from hearing the trial of the applicant. The applicant alleged that his right to a fair trial had been violated by the failure of the Gardai to preserve, examine (either visually or forensically) or make available to the applicant a motor vehicle and also by failing to remove the petrol can from the motor vehicle and retain it.

Held by the Supreme Court (Geoghegan, Fennelly and McCracken JJ) in dismissing the appeal and affirming the order of the High Court refusing leave to apply for judicial review that the applicant had not made out an arguable case that there was a real risk of an unfair trial.

1 Judgment of Mr Justice McCracken delivered the 9th day of April 2003 [Nem Diss]

2 On 29 ^th April, 2002 the applicant applied to Murphy J. for leave to apply by way of an application for judicial review for:-

3 2 "1. An Order of Prohibition by way of an application for judicial review restraining the first named respondents from hearing the trial of the applicant in proceedings entitled Bill No. DU 1215/01 The People of Ireland (at the suit of the Director of Public Prosecutions) -v- Gavin M ^cKeown

4 2. An injunction by way of an application for judicial review restraining the second named respondent from prosecuting the applicant in proceedings entitled Bill No. DU 1215/01 The People of Ireland (at the suit of the Director of Public Prosecutions) -v- Gavin M ^cKeown."

5 The applicant is charged on indictment with two counts, one of assaulting Garda Conlon causing him harm and one of unauthorised use of a mechanically propelled vehicle, the property of one Mark Cronin. The background to the charges according to the Book of Evidence was that Mr. Cronin's vehicle had been reported as stolen. On 8 ^th April, 2001 Garda Conlon and a colleague in a patrol car saw the vehicle in a car park and it is alleged that they observed the applicant and a co-accused getting out of the vehicle, with the applicant getting out of the drivers seat. When they saw the two Gardaí they attempted to run away, but were trapped between the two Gardaí. It is alleged that the applicant then assaulted Garda Conlon and that in the course of the assault the applicant hit Garda Conlon with a red petrol can on the head. Both the applicant and his co-accused were arrested and duly charged. They were released on bail to appear before the District Court the next day, namely 9 ^th April, 2001, and on that occasion the applicant met with his solicitor.

6 On 14 ^th June, 2001 the charges against the applicant were struck out in the District Court as there were no directions from the second named respondent. The applicant was recharged on 4 ^thOctober, 2001.

7 On 12 ^th February, 2002 the applicant's solicitor wrote to the second named respondent seeking to be provided with:-

8 2 "1. Previous convictions of our client and co-accused if any

9 2. Results of any forensic tests carried out on the alleged stolen vehicle, the whereabouts of the car now

10 3. The Book of Evidence refers to an exhibit of a petrol can on page 10, can we see the sight of such can."

11 In response to this request it was disclosed that the vehicle had been returned to its owner the day after the alleged incident and that no forensic tests had been carried out to it. It also transpired that later in the day the two Gardaí involved went back to the scene of the incident but did not find the petrol can. Ultimately, on 4 ^thMarch, 2002, Garda Conlon telephoned Mr. Cronin asking whether the petrol can had ended up in his car, and Mr. Cronin said that it had, and he had put it in his shed. It was ultimately collected by the Gardaí from Mr. Cronin on 11 ^th March, 2002.

12 In seeking the Orders of Prohibition and Injunction in the present proceedings the applicant alleges that his right to a fair trial has been violated by the failure of the Gardaí to preserve, examine (either visually or forensically) or make available to the applicant the motor vehicle and also by failing to remove the petrol can from the motor vehicle and retain it.

13 There have been a number of recent cases in which the obligations of the Gardaí in relation to the preservation of potential evidence has been considered. The first of these is Murphy -v- Director of Public Prosecutions (1989) ILRM 71. As in the present case, this concerned charges relating to a stolen car, which in fact was wrecked in the incident. Unlike the present case, however, the applicant's solicitors had requested access to the car less the five weeks after the initial charges, and while the car was in the possession of the Gardaí. Initially, the Gardaí informed the applicant's solicitor that the car was available for inspection, but a week later they allowed an insurance company to remove the vehicle, before it had been examined on behalf of the applicant or indeed by the Gardaí themselves. Lynch J. granted an injunction restraining the Director of Public Prosecutions from proceeding. While that was clearly a much stronger case than the present case, the principles stated by Lynch J. are set out in the headnote as follows:-

14 2 "(1) Evidence relevant to guilt or innocence must, so far as is necessary and practicable be kept until the conclusion of the trial. This principle also applies to the preservation of articles which may give rise to the reasonable possibility of securing relevant evidence. Dillon -v- O'Brien and Davies (1887) 20 L.R. 300 approved.

15 (2) An accused person must be afforded every reasonable opportunity to inspect all material evidence which is under the control and power of the prosecuting authorities in order adequately to prepare his defence.

16 (3) The Gardaí ought not to have parted with the possession of the car without examining it forensically or alternatively, they should have notified the applicant's legal representatives of their intention of giving it back to the insurance company.

17 (4) The Gardaí's actions in the circumstances amounted to a breach of the rule of fair procedures in that they deprived the applicant of the reasonable possibility of rebutting the evidence proferred against him. State (Healy) -v- Donohoe (1976) I.R.300 applied."

18 This was followed by Rogers -v- Director of Public Prosecutions (1992) ILRM 695, which also concerned a motor vehicle. In that case the Gardaí had in fact carried out a forensic examination and sought fingerprint evidence, but with a negative result. The vehicle was then returned to its owner, and some two and a half months later the applicant's solicitors sought an inspection of the vehicle. O'Hanlon J. refused to grant an injunction and said at page 698:-

"I think that some consideration has to be given to the owner of a motor car which has been stolen or unlawfully taken; similarly in relation to other property the subject of criminal charges where deprivation of possession thereof will seriously prejudice or inconvenience the innocent owner thereof. In relation to such property I would hold that any forensic examination, whether by the Gardaí or on behalf of an accused person, should be sought and should take place within a reasonable time, having regard to all the circumstances of the case, so that the property can then be returned as expeditiously as possible to its true owner.

In the present case, having regard to the fact that a forensic examination was carried out promptly by the Gardaí and no mention was made of a forensic examination being sought by the applicant for two and a half months after he had been charged with offences concerning the driving of the car, I have come to the conclusion that there was no breach of fair procedure such as would justify the court in halting the prosecution now pending against the...