Savage v DPP

• Jurisdiction: Ireland
• Judge: Denham J.
• Judgment Date: 03 July 2008
• Neutral Citation: [2008] IESC 39
• Court: Supreme Court
• Docket Number: [S.C. No. 120 of 2005]
• Date: 03 July 2008

Savage v DPP

Between/

Ciaran Savage

Applicant/Appellant

and

The Director of Public Prosecutions

Respondent

[2008] IESC 39

Denham J.

Hardiman J.

Fennelly J.

[Appeal No. 120 of 2005]

[Appeal No. 164 of 2007]

THE SUPREME COURT

CRIMINAL LAW

Evidence

Physical evidence - Preservation - Motor car destroyed pre-trial - Whether failure to preserve exposed applicant to real risk of unfair trial - Whether injunction to restrain further prosecution of charges should be granted - Duty of gardaí in preserving evidence - Test - Onus of proof - Applicable threshold - Whether reasonable in all circumstances of case to rely on forensic report - Whether real risk of unfair trial established - Braddish v DPP [2001] 3 IR 127, Murphy v DPP [1989] ILRM 71, The State (Walshe) v Murphy [1981] IR 275 and Z v DPP [1994] 2 IR 476 followed - Applicant's appeal dismissed (120/2005 - SC - 3/7/2008) [2008] IESC 39

Savage v DPP

Facts: The applicant/ appellant was charged with using a vehicle without he consent of the owner and causing serious injury. He sought to appeal against a decision of the High Court concluding that the failure to preserve the vehicle in question on account of its destruction entailed that he could not obtain a fair trial. The car had been inspected and the reports were available

Held by the Supreme Court (per Denham J., Hardiman, Fennelly JJ. concurring) in dismissing the appeal, that the car was inspected and the reports compiled could be inspected by the applicant. The applicant could put in evidence the condition of the vehicle as a defence. The applicant had not established that there was a real and serious risk in the absence of the car of an unfair trial arising from the destruction of the bar. It would be best practice for the Gardai to notify an accused of an intention to destroy such a vehicle.

Reporter: E.F.

ROAD TRAFFIC ACT 1961 S112

ROAD TRAFFIC ACT 1961 S53(1)

ROAD TRAFFIC ACT 1968 S51

ROAD TRAFFIC ACT 1961 S53(2)(a)

ROAD TRAFFIC ACT 1994 S49(1)(f)

MCKEOWN v JUDGES OF DUBLIN CIRUIT COURT & DPP UNREP SUPREME 9.4.2003 2003/41/9855

BRADDISH v DPP & HAUGH 2001 3 IR 127 2002 1 ILRM 151

DUNNE v DPP 2002 2 IR 305

BOWES & MCGRATH v DPP 2003 2 IR 25

SCULLY v DPP 2005 1 IR 242 2005 2 ILRM 203

MCFARLANE v DPP UNREP SUPREME 5.3.2008 2008 IESC 7

MURPHY v DPP 1989 ILRM 71

DILLON v O'BRIEN & DAVIS 1887 20 LR IR 300

R v LUSHINGTON EX-PARTE OTTO 1894 1 QB 420

WALSHE, STATE v MURPHY 1981 IR 275

MCFARLANE v DPP 2007 1 IR 134

Z v DPP 1994 2 IR 476 1994 2 ILRM 497

1 Judgment delivered the 3rd day of July, 2008by Denham J.

2 1. Ciaran Savage is charged with the offences of using a vehicle without the consent of the owner and dangerous driving causing serious injury. In the High Court he sought an order prohibiting further criminal prosecution against him, on the basis that the Director of Public Prosecutions has failed to preserve material evidence as the vehicle has been destroyed. The issue for determination is whether by reason of the absence of the vehicle (evidence), there is a real or serious risk that he could not obtain a fair trial. The High Court held that he had failed to discharge the required onus of proof. He has appealed to this Court on numerous grounds submitting that the learned trial judge erred in fact and law. I would dismiss the appeal for the reasons set out in this judgment.

3 2. Ciaran Savage, the applicant/appellant, "the applicant", has brought this appeal from the refusal by the High Court of his application to prohibit his trial in the Circuit Criminal Court on two charges; (i) of using a vehicle without the consent of the owner, contrary to s.112 of the Road Traffic Act, 1961, as amended, and (ii) dangerous driving causing serious injury (to his passenger), contrary to s.53(1) of the Road Traffic Act, 1961, as amended.

4 3. The chronology of relevant events is as follows:-

5 (i) 3 ^rd June, 2001: the accident.

6 (ii) 13 ^th June, 2001: examination of the vehicle by Public Service Vehicle Inspector.

7 (iii) 28 ^th June, 2001: service of Notice of Intention to Prosecute in respect of dangerous driving, having regard to the alleged speed and defects of the vehicle.

8 (iv) 10 ^th July, 2001: the applicant was discharged from hospital, and continued on medication and treatment.

9 (v) 25 ^th July, 2001: destruction of the vehicle by An Garda Síochána.

10 (vi) 22 ^nd November, 2001: the victim died.

11 (vii) 22 ^nd November, 2001: application for issuance of the summonses grounding the prosecution, excluding dangerous driving causing death. It appears that the applicant was summonsed in respect of dangerous driving for summary disposal.

12 (viii) 12 ^th February, 2002: application for issuance of the summonses grounding the prosecution for dangerous driving causing serious harm.

13 (ix) 27 ^th February, 2002: return date for the summonses.

14 (x) 15 ^th May, 2002: order sending the applicant forward for trial in the Circuit Criminal Court.

15 (xi) 2 ^nd July, 2002: first appearance in the Circuit Criminal Court. As the applicant had not been cautioned the matter was adjourned to 16 ^th July, 2002.

16 (xii) 16 ^th July, 2002: the defence enquired as to whether the vehicle was available for inspection; the matter was adjourned to 30 ^th July, 2002.

17 (xiii) 30 ^th July, 2002: the Director of Public Prosecutions informed the applicant that the vehicle had been destroyed.

18 (xiv) 2 ^nd October, 2002: leave given by the High Court to apply for judicial review.

19 (xv) 16 ^th January, 2003: letter from the Director of Public Prosecutions stating that the prosecution evidence as to the examination of the vehicle will not be tendered and that the condition of the vehicle would not be an issue in the trial.

20 (xvi) 4 ^th March, 2005: application for judicial review heard by the High Court.

21 (xvii) 8 ^th March, 2005: High Court orders that the application be refused.

22 (xviii) 8 ^th March, 2005: ex tempore judgment given by the High Court (Quirke J.), which concluded that the court was not satisfied that the applicant had discharged the onus of proving on the balance of probability that the failure to preserve the vehicle has given rise to a real or serious risk that he would receive an unfair trial and that the relief should be refused.

23 (xix) 22 ^nd March, 2005: the applicant filed a Notice of Appeal to this Court.

24 (xx) 22 ^nd April, 2008: the appeal came on for hearing in this Court, and judgment was reserved.

4. Relief Sought

25 The High Court (Murphy J.) on 2 ^nd October, 2002, granted the applicant leave to apply for judicial review for an order prohibiting the Director of Public Prosecutions from taking any further steps in the criminal proceedings the subject matter of this application.

5. Grounds for application for judicial review

26 The grounds upon which the application was granted were:-

27 (i) Prohibition by way of Judicial Review.

28 The applicant herein has been returned for trial to the Circuit Court in respect of two counts set out in the statement of charges. They are:-

29 (a) For that you the said accused on the 3 ^rd June 2001 at Old Kilmainham, Dublin 8 in the Dublin Metropolitan District did unlawfully use a mechanically propelled vehicle, registration number 87 LH 3345 without the consent of the owner thereof, namely, Fabien Boucher, or without other lawful authority. Contrary to Section 112 of the Road Traffic Act 1961 (as amended by Section 65 of the Road Traffic Act 1968 and by Section 3(7) of the Road Traffic (Amendment) Act 1984).

30 (b) For that you the said accused on the 3 ^rd June 2001 at Old Kilmainham Road, Dublin 8, a public place in the Dublin Metropolitan District did drive a vehicle, registration number 87 LH 3345 in a manner (including speed) which having regard to all the circumstances of the case (including the condition of the vehicle, the nature, condition and use of such place and the amount of traffic which then actually was or might reasonably be expected then to be therein) was dangerous to the public, whereby it caused serious bodily harm to another person, Debbie Mulhall.

31 Contrary to 53(1) (as amended by Section 51 of the Road Traffic Act 1968) and (2)(a) (as amended by Section 49(1)(f) of the Road Traffic Act, 1994) of the Road Traffic Act, 1961 to 1995.

32 (ii) The applicant was served with a Book of Evidence in respect of the said counts.

33 (iii) At all material times the Director of Public Prosecutions had within its possession and/or power, the said motor vehicle named in the two counts, namely, mechanically propelled vehicle registration number 87 LH 3345.

34 (iv) The Book of Evidence discloses that the Director of Public Prosecutions will be relying on the condition of the motor vehicle as being "dangerously defective" as a significant part of the evidence in attempting to establish in particular Count number 2 herein.

35 (v) In addition, the evidence on its face raises questions having a bearing on the cause of the crash.

36 (vi) After this case had been returned for trial, but before the arraignment date the Director of Public Prosecutions informed the applicant herein that there might be a difficulty in respect of certain exhibits or retention of same.

37 (vii) The Director of Public Prosecutions has put the applicant on notice that they no longer have possession or custody of the motor vehicle which was retained by them after the 3 ^rd June, 2001 and same is not now available for inspection.

38 (viii) The Director of Public Prosecutions has failed to comply with the principles of natural and constitutional justice and basic fairness of procedures in failing to preserve all material evidence which would be necessary for the applicant to examine in order to properly present his defence and assess the case against him.

39 (ix)...