Molloy v DPP

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 13 January 2006
• Neutral Citation: [2006] IEHC 1
• Date: 13 January 2006
• Court: High Court

[2006] IEHC 1

THE HIGH COURT

[145JR/2004]

MOLLOY v DPP

JUDICIAL REVIEW

BETWEEN

GARRETH MOLLOY

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S13

CRIMINAL JUSTICE ACT 1984 S4

ROAD TRAFFIC ACT 1961 S112

SCULLY v DPP 2005 2 ILRM 203 2005 1 IR 242

CONSTITUTION ART 38.1

HEALY, STATE v DONOGHUE 1976 IR 325

DYLAN v O'BRIEN & DAVIES 1887 20 LR 300

MURPHY v DPP 1989 ILRM 71

RODGERS v DPP 1992 ILRM 695

BRADDISH v DPP 2001 3 IR 127 2002 1 ILRM 151

DUNNE v DPP 2002 2 ILRM 241 2002 2 IR 305

BOWES & MCGRATH v DPP 2003 2 IR 25

MCKEOWN v DPP UNREP SUPREME 9.4.2003 2003/41/9855

Z v DPP 1994 2 IR 476 1994 2 ILRM 481

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

CONNOLLY v DPP 2003 4 IR 121

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

ROAD TRAFFIC ACTS 1961 - 1994 S41

CRIMINAL LAW

Trial

Evidence - Failure to preserve evidence -Risk of unfair trial - Test to be applied -Duty and discretion of gardai in seeking out and preserving evidence - Identification evidence by gardai - Fingerprint evidence - Whether applicant wrongfully deprived of opportunity of examining car - Whether gardai under obligation to carry out forensic examination of car - Whether real risk of unfair trial established - Delay in seeking evidence - Whether applicant guilty of delay in seeking inspection of car - Whether applicant disentitled to relief by reason of delay - Dunne v DPP [2002] 2 IR 305; B vDPP [1997] 3 IR 140; Braddish v DPP [2001] 3 IR 127 and Scully v DPP [2005]IESC 11, [2005] 1 IR 242 considered -Prohibition refused (2004/145JR - Dunne J- 13/1/2006) [2006] IEHC 1Molloy v DPP

Facts: The applicant sought an injunction by way of judicial review restraining the respondent from proceeding with a prosecution in respect of an offence relating to the conduct in which he drove a motor vehicle on the grounds inter alia that the respondent failed to give adequate notice that the motor vehicle was being disposed of and in those circumstances had failed to have regard to its obligation to seek out, preserve and disclose all relevant evidence.

Held by Dunne J. in refusing the application that the applicant had not established that forensic evidence would have been available to him on inspection which would have a bearing on his guilt or innocence. It was not necessary or practicable to preserve the car.

Reporter: R.W.

1 JUDGMENT of Ms. Justice Dunne delivered on the 13th day of January, 2006

2 The applicant in these proceedings has been charged that on 22nd January, 2003, he did intentionally or recklessly engage in conduct in that he drove in a manner which created a substantial risk of death or serious harm to another contrary to s. 13 of the Non-Fatal Offences Against the Person Act, 1997. There are four counts on the indictment in respect of the alleged driving of the applicant at four different locations on the same date.

3 The applicant now seeks an order for judicial review by way of prohibition or injunction restraining the respondent from proceeding with the prosecution of the applicant in respect of the offences of endangerment referred to above.

4 Leave was granted by this court (O'Neill J.) on 23rd February, 2004, in accordance with the statement to ground the application dated 23rd February, 2004. The grounds relied on by the applicant can be summarised as follows:

5 (i) The applicant cannot get a fair trial because having been arrested and detained under the provisions of s. 4 of the Criminal Justice Act, 1984 for the purposes of being interviewed on suspicion of driving a motor vehicle; he was released having been charged and was not interviewed or fingerprinted and nor were those others who were arrested at the same time, detained, interviewed or fingerprinted.

6 (ii) That there has been a failure to comply with the principles of natural and constitutional justice in that there was a failure to conduct any forensic testing on either the motor vehicle in question or the applicant.

7 (iii) In returning the motor vehicle to the garda compound it is claimed that any opportunity for examining the motor vehicle for constructive forensic analysis has been destroyed thus denying the applicant the opportunity of examining the vehicle and depriving him of a reasonable opportunity of rebutting the evidence preferred against him.

8 (iv) That the respondent failed to give adequate notice to the applicant that the motor vehicle was being disposed of and only informed the applicant after the vehicle was no longer available thereby denying the applicant the opportunity to seek independent analysis. In those circumstances it is claimed that the respondent has failed to have regard to the obligation to seek out, preserve and disclose all relevant evidence.

Background

9 The background to this application is set out in the affidavits of Yvonne Bambury, the applicant's solicitor, and Garda Michael Kearney and Garda Sean Walsh. It appears that in the early hours of 22nd January, 2003, a motor vehicle registered No. 92 D 16573, a blue Honda Civic, was alleged to have been driven dangerously around the Spencer Dock/Seville Place area of Dublin. Gardaí intercepted the car and gave pursuit. There were four occupants in the car, one of whom is alleged to be the applicant. The driver of the car was wearing a black jumper with a design on the front. Ultimately, the Honda Civic crashed into a Fiat Punto. The occupants fled from the vehicle, Gardaí gave chase and four people, including the applicant, were arrested.

10 It is alleged that the applicant was the driver of the Honda Civic. He was arrested for an offence contrary to s. 112 of the Road Traffic Act, 1961, as amended. Some two and a half hours after his arrest, he was charged with that offence and released. The other three people who had been arrested, detained and brought to Store Street Garda Station were also released. It appears that none of those detained were fingerprinted or interviewed. No clothing was taken from the applicant for examination or preservation. Subsequent to the incident, the Honda Civic car was removed to a Garda compound. Following inquiries it transpired that the Honda Civic had not been stolen.

11 On 31st July, 2003, the original charges against the applicant were struck out and he was charged with four counts of endangerment being the subject matter of this application.

Submissions

12 Complaint is made on behalf of the applicant herein about a number of matters which it is submitted have violated the right of the applicant to a fair trial in due course of law. They are:

13 1. No fingerprints were taken from those alleged to have been in the vehicle.

14 2. No clothing was removed from the applicant or taken for testing or preserved.

15 3. The applicant, and the others arrested at the same time, although detained in the garda station for a period of time, were not interviewed.

16 4. The Gardaí failed to seek out and preserve evidence namely the motor vehicle, thus depriving the applicant of the right to evidence that might inculpate or exculpate him.

17 5. Complaint is also made that in returning the motor vehicle to the Garda compound the Gardaí destroyed any opportunity for examining the motor vehicle for forensic analysis as any evidence that would have been present would have been destroyed in the act of removing the motor vehicle to the Garda compound. Thus it is contended that the applicant has been deprived of a reasonable opportunity of rebutting the evidence preferred against him.

18 6. That the respondent failed to give notice to the applicant that the motor vehicle was being disposed of and only informed the applicant of this after the vehicle was no longer available.

19 In essence the point made by Mr. Peter Finlay S.C. on behalf of the applicant is that the car is central to this case. The case against the applicant on the book of evidence relies on the visual identification of the applicant by members of the Gardaí. The applicant has denied on affidavit that he was the driver of the car. Therefore the case turns on one person's word as against another. In those circumstances the crucial issue to be determined in the trial is who drove the car. Mr. Finlay pointed out that it was the intention of the Gardaí to have the car forensically examined and that had the car been forensically examined there may have been no evidence available to link the applicant with the driving of the car. Thus, he argued that the possibility of there being no forensic evidence to link the applicant with the driving of the car had been denied to the applicant. Accordingly, he is prejudiced by its absence and his inability to have the vehicle available for forensic examination.

20 Mr. Finlay then dealt with the issue of delay. He pointed out that the applicant had originally been charged with an offence pursuant to s. 112 of the Road Traffic Act, 1961 as amended. Subsequently that charge was struck out and it was not until 31st July, 2003, that he was charged with the endangerment counts. He was sent forward for trial in September, 2003, and his instructing solicitor came on record in September, 2003. At that point in time correspondence ensued between the applicant's solicitors and the respondent's solicitors in relation to disclosure. As part of those inquiries the applicant's solicitor sought the results of forensic analysis if any was carried out, and if not where was the motor vehicle and was it available for inspection. Ultimately it transpired that the motor vehicle had been returned to its owner on 23rd January, 2003. It appears that this was done in error as the Gardaí had intended to have a forensic examination carried out...