Savage -v- DPP, [2008] IESC 39 (2008)

Docket Number:120/05
Party Name:Savage, DPP
Judge:Hardiman J.


Hardiman J.

Fennelly J.






JUDGMENT of Mr. Justice Hardiman delivered the 3rd day of July, 2008. I have read the judgments of Denham J. and Fennelly J. in this case and am generally in agreement with them and with the order proposed for the disposal of this case. I wish however to make a number of observations of my own and therefore venture to prepare this short judgment.

I am in agreement with the summary of the various decisions in this area offered in the judgment of Fennelly J. I favour the refusal of relief in this case because I cannot see that the evidence on behalf of the applicant, and in particular the expert evidence of Dr. Jordan, leads to the conclusion that the destruction of the vehicle has confronted the applicant with an unavoidable risk of an unfair trial. The applicant has not committed himself to any particular line of defence, and is entitled to refrain from doing so. From the terms in which the evidence of Dr. Jordan is expressed one might think that a possible viable line of defence, in his mind, is that, in Dr. Jordan's words:"The vehicle was defective in ways which might reasonably not have been noticed by the driver and which might reasonably have caused or contributed significantly to the causation of the impact".

Dr. Jordan has however indicated that various of the features of the car post accident, which were observed and recorded by the gardaí, support the conclusion quoted. To that extent there is not merely no demonstrated risk of an unfair trial but there is positive evidence that the garda evidence may support one of the defences which may be relied upon the applicant.

It is obvious that any professional witness be he a doctor, an engineer, or otherwise would prefer personally to see the item in respect of which his opinion is sought. But this will not always be possible, as most obviously in the case of a medical witness asked to opine about the cause of death of a deceased and long buried person. In that particular context a protocol has grown up whereby a doctor performing a post-mortem will record what he finds in very considerable detail specifically so as to permit another practitioner to form his own, independent opinion. Dr. Jordan as a defence witness in a criminal trial will (as Fennelly J. has pointed out) be enabled and entitled to raise possibilities properly arising on the evidence which may favour the...

To continue reading