Perry v Judges of the Circuit Criminal Court and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Fennelly
• Judgment Date: 28 October 2008
• Neutral Citation: [2008] IESC 58
• Court: Supreme Court
• Docket Number: Appeal No. 164/2007
• Date: 28 October 2008

THE SUPREME COURT

Denham J.

Hardiman J.

Fennelly J.

Appeal No. 164/2007

BETWEEN

BRIAN PERRY

APPELLANT/APPELLANT

-AND-

THE JUDGES OF THE CIRCUIT CRIMINAL COURT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS/RESPONDENTS

Abstract:

Criminal law - Criminal procedure - Evidence - Missing evidence - Destruction of motor car - Deprived of opportunity to examine vehicle - Serious road traffic incident - Whether appellant had established a real and serious risk of an unfair trial

Facts: The appellant contended that the destruction of the remains of a motor car driven in a road traffic incident prejudiced his right to a fair trial in respect of the road traffic accident. The High Court had rejected the application for judicial review. The appellant contended that he had been deprived of the opportunity to have the wreck of the car professionally examined and that immediately before the accident the steering of the car had locked.

Held by the Supreme Court per Fennelly J. (Denham, Hardiman JJ concurring) that the appellant had not discharged the burden of showing that he faced a real and serious risk of an unfair trial. The appellant had not demonstrated how the car was affected prior to the accident. The appeal would be dismissed and the order of the High Court affirmed.

Reporter: E.F.

1 JUDGMENT of Mr. Justice Fennelly delivered the 28th day of October, 2008.

2 1. Here is yet another “missing evidence” case. The Gardaí have permitted the destruction of remains of a motor car driven by the Appellant. He claims that his right to a fair trial on a charge of dangerous driving causing serious bodily harm has been put at risk.

3 2. The Appellant obtained leave to apply for judicial review by order of Peart J dated 25th May 2005. He seeks an order prohibiting the trial on the charge of dangerous driving causing serious bodily harm which is pending before the Circuit Court. He failed in his application for judicial review before McGovern J in the High Court. The High Court judgment is dated 20th April 2007. He now appeals to this Court.

4 3. A serious accident occurred at about three o’clock in the morning of 21st June 2004 at Grace Park Road, Dublin. Garda John Durr of Whitehall Garda Station arrived at the scene very shortly after the crash. He found a Fiat Stilo motor car on its side and half way into the garden of a house at Grace Park Road. The Appellant was standing beside it and a passenger, Ms Rebecca Elliott, was trapped inside. She had to be cut free. Ms Elliot was seriously injured.

5 4. It appears from the book of evidence that Ms Elliot was being given a lift home from town by the Appellant whom she describes as her “ex-boyfriend.” She was in the back of the car. She remembers coming around the bend at All Hallows on Grace Park Road. She took off her seat belt to pick up a cigarette lighter and that is all she remembers. Her statement contains no description of how the car was being driven.

6 5. There is also a statement from an apparently independent witness, Mr James Higgins, who was walking along Grace Park Road. He heard a car coming towards him “like a bullet.” He continues:

7 “I jumped over the garden wall on Grace Pk Rd as I thought he was going to mount the footpath.

8 The car passed me then and he was heading around a sharp bend. I knew by the speed he was going that he wouldn’t make it round the bend. Seconds later I heard an unmerciful bang. The car had gone into a skid and a screech coming to the bend. After hearing the collision I was unsure whether he had hit an oncoming car, a parked car or a house. I immediately ran back up the road to see a D2 silver Stilo after demolishing the front wall of a house on Grace Pk Rd and the car was on its side about 305am………..

9 “I didn’t get a look of the driver of the car as it was going very fast and it was dark I also think that it was a miracle that there was no other car coming in the other direction in the other direction as we could have been looking at a fatality case the speed the Stilo was doing.” (I have made some corrections to spelling and punctuation.)

10 6. It was accepted at the hearing of the appeal that a jury, properly directed, would be entitled, on the basis of that evidence taken on its own, to convict the Appellant of the offence of dangerous driving causing serious bodily harm. That assumes, of course, that the evidence is given by the witness and is believed and that there is no other evidence to contradict or undermine it. In other words, the possibility remains that evidence will emerge to support an alternative explanation for the accident.

11 7. I turn now to consider the post-accident events.

12 8. Both the Appellant and Ms Elliot were taken to hospital. Ms Elliot was very seriously injured. She will be permanently wheel-chair bound. Garda Durr attended at the hospital and followed the procedures necessary to ground a prosecution of the Appellant for driving under the influence of intoxicating liquor. He also asked the Appellant for his driving licence and insurance certificate, which he failed to produce. This appeal is not concerned with these summary offences. It is clear that the Appellant was not notified that he might be prosecuted for dangerous driving causing serious bodily harm.

13 9. The application for issue of the summons on the charge of dangerous driving causing serious bodily harm was made in December 2004. The summons was dated 10th February 2005 and required the Appellant to appear at Dublin

14 Metropolitan District Court on 8th June 2005. We do not know when it was served. A book of evidence was served and the Appellant was returned for trial at Dublin Circuit Criminal Court on 7th October 2005. Thereafter, his solicitor engaged in correspondence with the prosecution solicitor seeking disclosure and, in particular, seeking access to the crashed motor car.

15 10. The Appellant relies, for the purpose of the appeal, on the history of disposal of the car. That history is, in several respects, incomplete and, on one issue, hotly disputed. The car was, of course, a complete wreck. Not only was it severely damaged in the accident, but its roof had to be cut off to release Ms Elliot. It was taken to Gannon’s recovery yard, which carries out work of this type. This can only have been at the behest of the Garda Síochána, though there is no direct evidence on the point. It was destroyed in early July 2004. It is common case that, although a public service vehicle inspector had inspected it on behalf of the Garda Síochána, the Appellant has had no opportunity to have it examined. In an appropriate case, that fact might well be fatal to a prosecution.

16 11. There is heated controversy, on the affidavits, as to whether the Appellant attended at the recovery yard in June 2004 and gave effective authority for the removal and destruction of the car. It is impossible for this Court to resolve that contested issue. It might have been appropriate to have the respective witnesses cross-examined; alternatively, the matter might be resolved by placing the burden of proof on the Appellant. For reasons that will become apparent, I do not find it necessary to resolve that dispute. In addition, it is undesirable to comment on the evidence or on another disputed issue regarding the ownership of the car in the interests of avoiding the risk of prejudice to a pending trial.

17 12. I will, in these circumstances, make the assumption most favourable to the Appellant, namely that the wrecked car was in the effective custody or control of the Garda Síochána, who authorised or permitted it to be destroyed without notice to or authority from the Appellant.

18 13. This brings us to the nub of the case made by the Appellant. He asks the Court to prohibit his trial on the ground that he has been deprived of the opportunity to have the wreck of the car professionally examined with the consequence that there is a real risk that he will not have a fair trial. He grounds that contention, in turn, on a claim that

19 he believes that, immediately before the accident the steering of the car locked. In that way, he submits, he would offer an explanation for the accident other than the alleged speed of his driving. Furthermore, if the steering had locked, even if the car was being driven at excessive speed, the intervention of the steering problem, rather than the latter might be shown, at least possibly, to be the cause of the crash and, thus, the injuries suffered by Ms Elliot.

20 14. McGovern J referred to the failure of the Appellants to “set out in any detail how the car was affected immediately prior to the accident…” He pointed out that the State do not intend to rely on evidence that that there was a defect in the vehicle which is relevant to the charge. In addition he thought that there had been excessive delay on the part of the Appellant, who had not engaged with the evidence in any meaningful way.

21 15. An applicant for relief in the form of prohibition of his trial must establish by affirmative evidence or objective analysis of the facts of the case as alleged against him that there is a real risk to the fairness of his trial. The burden rests on the person making that allegation to show that there is an unavoidable risk of an unfair trial. ( Z v Director of Public Prosecutions [1994] I.R. 476 at 506) These principles have been examined and applied most recently in the decisions of this Court in Savage v Director of Public Prosecutions (Unreported 3rd July 2008) and Ludlow v Director of Public Prosecutions (Unreported 31st July 2008). Prohibition must be based on something substantial. Hardiman J has explained the meaning of “real risk” in several judgments, but in particular, when speaking for the Court in Scully v Director of Public Prosecutions [2005] 2 I.R. 242 at 252:

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