O’Driscoll (applicant/appellant) vDPP (respondent/respondent)

CourtSupreme Court
JudgeMacken, J.
Judgment Date24 March 2009
Neutral Citation[2009] IESC 23
Date24 March 2009

[2009] IESC 23


Kearns, J.

Macken, J.

Finnegan, J.

O'Driscoll v DPP




SCULLY v DPP 2005 1 IR 242 2005 2 ILRM 203 2005/54/11281 2005 IESC 11





Preservation - Risk of unfair trial - Failure to preserve relevant evidence - Motor vehicle Forensic testing Examination - Accused not notified of intention to return vehicle to owner No opportunity of examining vehicle - Whether accused entitled in law to have access to car for inspection in support of defence - Whether absence of vehicle or opportunity to examine vehicle would lead to real or serious risk of unfair trial - Whether trial judge failed to distinguish criminal damage from burglary charge Whether real and serious risk of unfair trial - Evidence at highest - Scully v DPP [2005] IESC 11, [2005] 1 IR 242 and Murphy v DPP [1989] ILRM 79 distinguished - McKeown v Judges of Circuit Court (Unrep, SC, 9/4/2003) considered - Appeal allowed in respect of criminal damage charge; dismissed in respect of burglary charge (282/2006 - SC - 24/3/2009) [2009] IESC 23

O'Driscoll v Director of Public Prosecutions

Facts: the applicant had been charged with one count of burglary and one count of criminal damage in the Circuit Criminal Court. He applied to the High Court by way of judicial review to restrain the further prosecution of those offences on the basis that the prosecutor had failed to preserve relevant evidence, in particular a vehicle allegedly used in the offences which breached his right to a fair trial in that he had been denied the opportunity to subject the vehicle to his own examination in support of his defence. The High Court dismissed the application on the basis that the applicant had failed to establish that the absence of the vehicle or of an opportunity to examine it would or could lead to a serious risk of an unfair trial. The applicant appealed to the Supreme Court. The respondent contended that the applicant had delayed in bringing the application and should be refused relief as a result.

Held by the Supreme Court in setting aside the order of the High Court so far as it concerned the criminal damage charge and prohibiting the respondent from taking any further steps on that count in the criminal prosecution, 1, that the alleged delay on the part of the applicant in commencing the judicial review proceedings could not prevail over the absence of any evidence and the return of the vehicle to its owner without notice to the applicant.

2. That the applicant was entitled to have access to the vehicle for inspection in support of his defence and that in its absence, the trial on that count could not be held without a real and serious risk of an unfair trial.

McKeown v. Judges of the Circuit Court (Unreported, Supreme Court, 9th April, 2003) applied.

Reporter: P.C.


Judgment delivered the 24th day of March, 2009 by Macken, J.

Judgment delivered by Macken J [nem diss]

By order of the High Court (McKechnie, J.) made on the 5 th day of July 2004 the applicant was granted leave to apply by way of judicial review for, inter alia, an order in the nature of an injunction restraining the respondent from taking any further steps in a criminal prosecution entitled Circuit Criminal Court County of the City of Dublin Bill No. 192/01; a declaration that a failure on the part of the respondent to obtain and/or preserve relevant evidence in particular the motor vehicle allegedly used in the offences alleged is a breach of the applicant's right to a fair trial; a declaration that the applicant was entitled to be informed of the respondent's decision and/or intention not to preserve the motor vehicle before it was returned; a declaration that the failure on the part of the respondent to subject the motor vehicle to forensic testing or any other proper examination is a breach of the applicant's right to a fair trial; and an order staying the further prosecution of the applicant pending the determination of the proceedings.


The application was heard on the 4 th November 2005 pursuant to a Notice of Motion dated 8 th July, 2004. By an Order made on the 9 th February 2006, the High Court (Dunne, J.), refused the application for judicial review. The basis for the refusal is set out in the reserved judgment of the learned High Court judge delivered on the 25 th January 2006. The application was refused on the basis that, whereas the vehicle in the case - already forensically tested by the gardaí and returned to its owner within two days of the events giving rise to the charges - should not have been returned without notice to the applicant, nevertheless the applicant had failed to establish that the absence of the vehicle or of an opportunity to examine it would or might lead to a real or serious risk of an unfair trial.


From that judgment and order the applicant has appealed. As matters have transpired, not all nine grounds of appeal are now relevant. Insofar as the relevant extant ground of appeal is concerned, it is contended that the learned High Court judge erred in law, inter alia, by failing to address adequately the appellant's claim for an injunction in respect of the charge of criminal damage contrary to s.2 of the Criminal Damage Act 1991, and by failing significantly to distinguish this charge from the burglary charge on the same Bill or to apply the law separately to the criminal damage charge.


According to the Book of Evidence and/or the judgment, a raid took place at premises known as XtraVision on Greenhills Road at Tallaght on 16 th March 2003. It is alleged that a dark green Opel Vectra registration number 99 D 54057 belonging to a Mr Lawlor was used in the course of the raid for the purposes of reversing it into the shutters of the premises in order to gain access to them. The applicant was charged in relation to the raid with two counts as follows:


(1) Burglary contrary to s.12(1)(b) and (3) of the Criminal Justice (Theft and Fraud Offences) Act 2001, and


(2) Criminal damage contrary to s.2 of the Criminal Damage Act 1991.


The first of these charges has a maximum penalty of 14 years and the second one a maximum penalty of 10 years. The criminal damage charge is in respect of the Opel Vectra car. No criminal damage charge was laid in respect of damage to the premises, there being no dispute but that the premises, including the shutters and a plate glass window, were in fact damaged.


Gardaí went to the premises almost immediately and found one person sitting in the back of the car, a Jason Murtagh who has since pleaded guilty, and it is alleged he made certain admissions, including that two other persons had entered the shop premises.


According to the affidavit of the appellant's solicitor, Ms Bambury, sworn in support of the judicial review application in respect of both charges, the evidence against the appellant is primarily identification evidence, based on the evidence to be given, inter alia, by Garda Vivienne Saunders, who said that she had entered the premises and noticed two male youths behind the counter, whom she described. She indicated that they fled through a hatch in a connecting door behind the counter of the shop but that she was unable to gain access to that part of the shop to search for them. She found two youths hiding under some bushes, at an adjoining site on the same industrial estate, and according to her statement in the Book of Evidence, she recognised them as being the same two men she had seen moments earlier behind the counter of the XtraVision store. She described them as being red-faced, sweating and breathing heavily. The appellant, she said, was arrested by her colleague Garda Woulfe, and when the garda asked him if he knew why, the appellant replied "I know I know". During interview while in custody the appellant made no admissions.


A forensic examination was carried out of the vehicle. This however was only disclosed during the High Court proceedings. It seems clear from the High Court judgment that the prosecution confirmed that it would be relying on forensic evidence to link the appellant to the driver's seat of the Opel Vectra used in the raid. The vehicle, having been examined, was returned to its owner about two days later, on the 18 th March 2003. It was accepted on behalf of the respondent in the course of the High Court proceedings that the appellant should have been notified of the intention of the gardaí to return the vehicle.

The Argument:

Before proceeding further it is appropriate to note that senior counsel Mr Collins on behalf of the appellant acknowledged in the course of the oral hearing on this appeal, that the grounds of appeal relating to the burglary charge were not readily capable of being seriously sustained in light of the learned trial judge's judgment and he correctly and fairly did not press the court on that element of the appeal. That left, in effect, only the criminal damage charge as the subject of an extant appeal, and the refusal of the learned High Court judge to prohibit the appellant's trial on this charge. The respondent in the High Court alleged delay by the appellant in commencing the High...

To continue reading

Request your trial
1 cases
  • D (C) v DPP
    • Ireland
    • Supreme Court
    • 23 October 2009
    ...58 TOOHEY v DPP & JUDGES OF THE CIRCUIT COURT UNREP SUPREME 3.12.2008 2008/60/12497 2008 IESC 64 O'DRISCOLL v DPP UNREP SUPREME 24.3.2009 2009 IESC 23 O'BRIEN v DPP UNREP SUPREME 16.12.2008 2008/48/10377 2008 IESC 67 CRIMINAL LAW Evidence Seeking out and preserving evidence - Duty of gardaí......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT