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  • the trial of the appellant and that the trial judge would be in a position to deal with them Decision 18 I apply the principles which I set out in Savage v Director of Public Prosecutions 2009 1 I R 185 Circumstances 19 The relevant circumstances in this case include the following i On the 14th August 2005 the car collision in issue occurred ii Immediately after the collision the driver Lyndsey Hudson told a witness I don t know what happened the car went out of control iii At the hospital to which she was brought after the collision it was recorded that Lyndsey Hudson had a hazy recollection of the details of the accident iv On the 18th August 2005 Lyndsey Hudson in a cautioned statement alleged that the appellant caused the collision as set out above v A surviving passenger Ciara Brack remembers nothing between the beginning of the journey and waking up in hospital vi Stephen Wall made two cautioned statements on the 30th August 2005 in two separate Garda Stations In one of the statements he said that he did not remember anything from the night In the other he stated that he could remember lights coming towards them and snapping back out of it outside the car However in a statement of the 7th February 2006 he stated that the appellant had reached for the steering wheel and he moved the wheel stating also I reckon he moved it with his right hand vii The two vehicles involved in the accident were still at the scene on the 14th August 2005 when they were examined by Sergeant Finn a Forensic Collision Investigator Witness 15 viii On the 17th August 2005 a public service vehicle inspector Garda McCallion Witness 14 examined both cars at Gannon s recovery yard Blackrock to which they had been brought ix The car in which the appellant was a passenger was extensively damaged according to Garda McCallion s statement x Sergeant Finn examined the cars on the 23rd August 2005 at the yard His conclusions include that there were no mechanical defects in either vehicle that could have contributed to the collision and that the primary cause of the collision lay with the driver Lyndsey Hudson who failed to keep her vehicle on the correct side of the road xi The appellant was first questioned on the 19th December 2005 and again on the 25th January 2006 when his fingerprints were taken with his consent xii The appellant was charged on the 13th July 2006 xiii He was returned for trial on the 8th September 2006 xiv It was alleged that the appellant was and is prejudiced by the destruction of the motor vehicles and by their unavailability for inspection by an expert on his behalf xv In his submissions the appellant referred to the unavailability of the cars for inspection which was prejudicial to him in relation to the issue of their mechanical condition and as to the issue of speeding submitting that he was prejudiced in relation to the likely evidence of Sergeant Finn xvi It was also submitted that there was a probability that Mr Foley would not be available at the trial xvii It was stressed that the failure of the prosecution to take fingerprints from the steering wheel of the motor car had significantly prejudiced the appellant in the conduct of his defence xviii It was submitted that the presence of the appellant s fingerprints on the driving wheel would have little if any evidentiary value since it was his girlfriend s car and he was frequently in it However it was submitted that the converse was emphatically not the position the absence of the appellant s fingerprints from the steering wheel could be highly relevant in the context of the allegations by the prosecution witnesses that he grabbed the wheel If the appellant s fingerprints were not on the steering wheel it could and would have been submitted to a jury that he had not in fact grabbed the wheel and a jury properly instructed could have been fully entitled to take that inference from the lack of fingerprints or it could have considerable probative value that he had not grabbed the wheel xix It was submitted that the prejudice is greater as the appellant has not been able to recall the events of that night that he maintains his innocence and intends to plead not guilty xx It was submitted that the appellant cannot receive a fair trial in the circumstances xxi The circumstances include also that the only witness apart from Lyndsey Hudson who implicated the appellant as responsible for the accident was Stephen Wall Stephen Wall made no allegation against the appellant on the night of the accident or to the Gardaí on the 30th August 2005 when he said he could not remember anything relevant But on the 7th February 2006 when questioned in Mountjoy Prison where he was serving a sentence he for the first time made an allegation against the appellant similar to that of Lyndsey Hudson Issue 20 The issue before the Court is whether in the circumstances which have occurred there is a real risk that by reason of those circumstances the appellant could not obtain a fair trial Prism 21 At this stage the Court is looking at the circumstances through the prism of affidavits and statements in advance of a trial The Court does not have the advantage of seeing and hearing witnesses Therefore it can only consider whether the appellant has discharged the burden of establishing that there is a real and serious risk of an unfair trial Judicial Duty 22 A trial judge retains at all times his or her duty to administer justice in accordance with the law and the Constitution in other words to ensure that a trial is fair 23 Even where an issue has arisen on an application for judicial review in advance of a trial the trial judge retains his or her duty at the trial as the evidence unfolds to ensure that a trial is fair in all the circumstances This includes all issues arising during the trial 24 On an application for judicial review the Court is considering issues on affidavits and statements in advance of a trial There is an onus of proof on an appellant to establish that there is a real and serious risk of an unfair trial There have been many cases on this jurisprudence For example in D v Director of Public Prosecutions 1994 2 I R 465 pre trial publicity was held not to render the proposed trial unfair On the other hand in Ludlow v D P P 2008 IESC 54 it was held that there was a real risk of an unfair trial where the sole issue was the state of the tyres of a vehicle and the accused had no access to the tyres since the tyres were lost 25 In this proposed prosecution witnesses will be called There will be cross examination on all the issues raised which will include the car and all the circumstances of the collision This will be overseen by a trial judge who will ensure that the trial is and remains fair 26 As the appellant had frequent and ready access to the car prior to the collision it was necessary for the appellant when raising the issue to explain why his fingerprint would not be present on the steering wheel from other occasions or that there was a probability that such evidence would be available so as to meet the onus required on an application to prohibit his trial 27 The evidence in this case against the appellant will not be circumstantial 28 The appellant will be able to raise all the issues he has raised on this application at the trial and will be in a position to cross examine the key witnesses 29 In B v DPP 1997 3 I R 140 I stated that The community s right to have offences prosecuted is not absolute but is to be exercised constitutionally with due process If there is a real risk that the applicant would not receive a fair trial then on the balance of these constitutional rights the applicant s rights would prevail In this case the lack of evidence relating to the absence or presence of the appellant s fingerprints on the steering wheel of the car does not give rise to a real risk of an unfair trial so as to prohibit a trial it is one of many factors which may be considered by a trial judge while ensuring that there is a fair trial Conclusion 30 In all the circumstances the appellant has failed to discharge the onus of proving that the failure on the part of the State to preserve the vehicles or to seek evidence of fingerprints on the steering wheel of the car in which he was a passenger has exposed him to a real risk of an unfair trial The circumstances are not such that the trial should be prohibited 31 I would affirm the decision of the High Court and dismiss the appeal 32 I agree also with the judgments to be delivered by O Donnell and MacMenamin JJ THE SUPREME COURT Appeal Nos 416 2008 and 433 2008 Denham C J Hardiman J O Donnell J Clarke J MacMenamin J Between Jason Wall Applicant Appellant and The Director of Public Prosecutions Respondent Judgment delivered on the 11th day of December 2013 by Denham C J 1 Justice is administered in Ireland by judges appointed under the Constitution who have made a declaration In the presence of Almighty God I do solemnly and sincerely promise and declare that I will duly and faithfully and to the best of my knowledge and power execute the office of Judge of the Court without fear or favour affection or ill will towards any man and that I will uphold the Constitution and the laws may God direct and sustain me 2 It is the duty and responsibility of each judge to administer justice and conduct all hearings fairly and with due process 3 In each jurisdiction civil and criminal litigation proceeds daily before judges who administer justice in accordance with the declaration 4 A jurisprudence has been developed however whereby in certain circumstances a trial may be prohibited before it commences 5 This jurisprudence grew out of situations where cases were excessively delayed It also developed where there was lost evidence and where there was a real risk by reason of other circumstances e g pre trial publicity that the applicant could not obtain a fair trial At the core of the jurisprudence is the concept of a fair trial 6 In State O Connell v Fawsitt 1986 I R 362 at 379 Finlay C J held I am satisfied that if a person s trial has been excessively delayed so as to prejudice his chance of obtaining a fair trial then the appropriate remedy by which the constitutional rights of such an individual can be defended and protected is by an order of prohibition A person charged with an indictable offence and whose chances of a fair trial have been prejudiced by excessive delay should not be put to the risk of being arraigned and pleading before the jury Having referred to the excessive delay Finlay C J then stated The determining feature in my view is the non availability of one of the witnesses who would have been a material witness for the defence Prohibition of the trial was ordered on the ground of the excessive delay and the absence of the material witness for the defence 7 The protection of the fair trial process may be seen also in the jurisprudence which has developed in relation to lost evidence 8 Thus in Murphy v Director of Public Prosecutions 1989 I L R M 71 Lynch J described the duty of An Garda Síochána to preserve evidence so far as is necessary and practicable 9 Braddish v The Director of Public Prosecutions 2001 3 I R 127 held that evidence relevant to guilt or innocence must as far as was necessary and practicable be kept until the conclusion of a trial An Garda Síochána because of their unique and investigative role are under a duty to seek and preserve all evidence having a bearing or potential bearing on the issue of guilt or innocence 10 In Savage v Director of Public Prosecutions 2009 1 I R 185 I reviewed relevant case law and held i each case should be determined on its own circumstances ii it is the courts duty to protect due process iii it is the duty of An Garda Síochána to preserve and disclose material evidence iv this duty to preserve and disclose material evidence is to do so as far as is necessary and practicable v the duty to disclose and preserve as qualified by Lynch J in Murphy v Director of Public Prosecutions 1989 I L R M 71 cannot be precisely defined as it is dependent on all the circumstances of the case vi the duty does not require the gardaí to engage in a disproportionate commitment of manpower and resources vii in the alternative to keeping large physical objects as evidence such as motor vehicles it may be reasonable in certain circumstances for the gardaí to have a forensic report on the object viii the duty should be interpreted in a practical manner on the facts of the case ix if evidence is destroyed the reason for the destruction whether bona fide or mala fide is part of the matrix of the facts but it is not a relevant factor in the test to be applied by the court x all of the above are subject to the fundamental test to be applied by the court that of real risk as described by Finlay C J in Z v Director of Public Prosecutions 1994 2 I R 476 at p 506 This court in the recent case of D v Director of Public Prosecutions 1994 2 I R 465 unanimously laid down the general principle that the onus of proof which is on an accused person who seeks an order prohibiting his trial on the ground that circumstances have occurred which would render it unfair is that he should establish that there is a real risk that by reason of those circumstances which in that case also were pre trial publicity he could not obtain a fair trial He continued at p 507 where one speaks of an onus to establish a real risk of an unfair trial it necessarily and inevitably means an unfair trial which cannot be avoided by appropriate rulings and directions on the part of the trial judge The risk is a real one but the unfairness of trial must be unavoidable unfairness of trial xi the focus of the inquiry is on the issue of the fairness of the intended trial and not on shortcomings in the garda investigation It is not a garda disciplinary process 11 Thus at the core of the jurisprudence and any analysis is the query as to whether there is a real risk by reason of the circumstances that an appellant could not obtain a fair trial Charge 12 Jason Wall the applicant appellant referred to as the appellant was charged on the 7th September 2006 that on the 14th August 2005 at Church Road Killiney Co Dublin he intentionally and recklessly engaged in conduct while being the passenger in motor car registration no 95 KE 4841 driven by another in that he pulled the steering wheel of the car 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 Judicial Review 13 The appellant brought judicial review proceedings seeking an order prohibiting the Director of Public Prosecutions the respondent referred to as the D P P from proceeding with the prosecution Grounds 14 The grounds upon which the appellant sought to prohibit his trial was that the D P P had acted contrary to national and constitutional justice and in breach of fair procedures in a Failing to conduct fingerprint testing on the steering wheel of motor car registration no 95 KE 4841 where the appellant is alleged to have pulled on on the 14th August 2005 which action is alleged to have caused a car crash which resulted in the death of one passenger and injury to others b By failing to ensure that all probative evidence which came into the hands of An Garda Síochána including the two cars involved in the crash and in particular the car the appellant was a passenger in were preserved for inspection examination and for the trial of the offence alleged 15 In essence what is alleged against the appellant is that while a back seat passenger in a car driven by his girlfriend he reached forward and grabbed the steering wheel and pushed it to the right so as to cause the car to cross to the incorrect side of the road causing a collision in which one of the passengers in the car died The High Court 16 The High Court O Keefe J in an ex tempore judgment delivered on the 13th November 2008 dismissed the application The High Court reviewed the jurisprudence and held I have come to the conclusion that this onus which is on the appellant has not been discharged I am not satisfied on the basis that has been set out in relation to the absence of the fingerprint evidence the opportunity to have the fingerprinting on the steering wheel and also the examination of the car in relation to the mechanical condition that such absence has posed a real risk of an unfair trial insofar as the appellant

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  • 151 There seems to be no doubt on the authorities that the Court will grant relief in a straightforward case where evidence of clear exculpatory potential has been in the possession of the Gardaí but has been lost destroyed given away or becomes untraceable while the Gardaí are responsible for it This seems to follow from the decision of this Court in Braddish cited above The same position appears to obtain in other jurisdictions as well see Brady v Maryland 373 US 83 where it was held by the United States Supreme Court that The suppression by the prosecution of evidence favourable to the accused upon request violates due process where the evidence is material either to guilt or to punishment irrespective of the good faith or bad faith of the prosecution 152 Brady was an egregious case where a man accused of murder which carried a death sentence had a statement of another person admitting that he rather than Brady strangled the deceased concealed from him The evidential potential of this was self evident 153 Difficulty however arises where the item in question is lost destroyed or otherwise become unavailable before it is examined so that its evidential potential is on one degree or another a matter for speculation This question has been considered elsewhere 154 This situation was considered in the light of Brady by the U S Court of Appeals for the District of Columbia in United States v Bryant 142 App DC 132 and 439F 2d 642 There the Court found that a duty of disclosure existed and that the Government i e the prosecution must at least make earnest efforts to preserve evidence it has gathered ibid at 651 155 Bryant concerned a defence demand for disclosure of a tape recording admittedly made by Government agents of motel room conversations between the defendants and an undercover agent allegedly concerning a sale of narcotics The prosecution alleged that it had lost the tape recording Although neither the Court nor the defence knew whether or not the tape contained exculpatory material the Court considered that the missing tape was absolutely crucial to the question of the defendant s guilt or innocence Accordingly the Court ruled The duty of disclosure attaches in some form once the government has first gathered and taken possession of evidence Otherwise disclosure might be avoided by destroying vital evidence before a prosecution begins or before the defendants hear of its existence Hence we hold that before a request for discovery has been made the duty of disclosure is operative as a duty of preservation Only if the evidence is carefully preserved during the early stages of investigation will disclosure be possible later ibid 651 Emphasis supplied 156 In Bryant the Court imposed on the prosecution the burden of demonstrating that earnest efforts in the form of regular procedures had been made to preserve such evidence holding that the prosecution was accountable for its loss unless it could show that it had promulgated enforced and attempted in good faith to follow rigorous and systematic procedures designed to protect all discoverable evidence gathered in the course of a criminal investigation ibid at 652 In footnote 21 on the same page the Court added Although there is an exception for good faith loss of evidence there is no exception for good faith administrative decisions that certain evidence is not discoverable and thus need not be preserved hence in framing the rules for evidence preservation investigative agencies must define discoverable evidence very broadly including any evidence that might be favourable to the accused 157 In the same case at p 648 Wright J articulated a policy to encourage fundamental fairness as the rationale behind Bryant Were Brady and its progeny applicable only when the exact content of non disclosed materials were known the disclosure duty would be an empty promise easily circumvented by the suppression of evidence by means of destruction rather than mere failure to reveal The purpose of the duty is not simply to correct an imbalance of advantage whereby the prosecution may surprise the defence at trial with new evidence rather it is also to make of the trial a search for truth informed by all relevant material much of which because of imbalance of investigative resources will be exclusively in the hands of the government Emphasis added 158 This ratio seems entirely consistent with the words of Fennelly J quoted above that it is of the greatest importance that the Court ensure that the police force behaves with impeccable fairness in its handling of evidence 159 Bryant was relied upon in a New York case People v Kelly 62 NY 2d 516 478 NYS 2d 834 In that case certain items of evidence consisting of cash were lost in prosecution custody The defence moved to dismiss and the motion was granted On appeal the Court of Appeal reversed the first decision and sent the matter back to the trial court for a determination of the appropriate sanction The Court of Appeal said A necessary corollary of the duty to disclose is the obligation to preserve evidence until a request for disclosure is made US v Bryant Any other rule would facilitate evasion of the disclosure requirements Accordingly where discoverable evidence gathered by the prosecution or its agent is lost the People have the heavy duty of establishing that diligent good faith efforts were made to prevent the loss Otherwise sanctions will be imposed ibid at 520 Emphasis added 160 The last sentence about sanctions relates to a specific feature of the American jurisprudence Although trials are sometimes stayed in missing evidence cases this is rare and it is more usual to impose sanctions on the prosecution In doing this the Court s attention should focus primarily on the over riding need to eliminate prejudice to the defendant ibid at 521 I must confess that some of the sanctions imposed seem a little unusual to me For example in People v Marr 177 AD 2d 964 the police accidentally destroyed a video tape of the defendant after his arrest for the equivalent of drunken driving The Court refused to dismiss the indictment but instead as a sanction refused to permit the prosecution to prove in evidence as they had intended to do and were otherwise entitled to do that that defendant had refused to submit to certain tests 161 I believe it is fair to sum up the US position by saying firstly that there is a strong obligation on the prosecution to preserve material that may be disclosable that the onus is on the prosecution to explain any loss or non collection of such material that appellate courts including the US Supreme Court are reluctant to impose dismissal as a sanction but that the case law is replete with the imposition of sanctions of one sort or another 162 The logic of sanctioning prosecution for the loss or destruction of evidential material that should have been kept or preserved by forbidding them to adduce other evidence which is properly admissible is not entirely clear to me Nevertheless the cases show in the years since Youngblood was decided by the U S Supreme Court greatly increased indeed now pervasive concern that evidential materials be preserved especially materials which give rise to the possibility of DNA examination In part undoubtedly this new concern is due to an increased public consciousness of the potential of DNA evidence to exculpate people who have been wrongly convicted and to inculpate those actually guilty of serious offences This consciousness itself has been greatly contributed to by the work of the Innocence Project much associated with the name of the prominent Attorney Barry Scheck 163 These developments in turn have given rise to positive horror of the deliberate destruction loss or concealment of evidence even in cases where the practise seems to have been common enough at the time of the trial While this judgment was being drafted a very dramatic example of an American concealed evidence case came to light Since it is not of direct relevance to resolution of the present case I have included it as Appendix III to this judgment 164 To my mind a central issue amongst those discussed by Mr Justice O Donnell is how to deal with lost items There will always be a measure of uncertainty precisely because the item is unavailable For this reason the most that an aggrieved defendant can ever show is that he has suffered a real risk of prejudice If one imposes on him a higher standard such as burden of showing affirmatively that the missing and therefore un examinable item certainly or probably contained material which is both evidentially useful and exculpatory one is imposing upon him a burden which is impossible to discharge That in turn is equivalent to abandoning a jurisdiction in missing evidence cases which speaking for myself I would not be prepared to do 165 Once an item of possible evidential significance is taken into the custody of the Gardaí its loss or destruction cannot be attributed to the defendant On the contrary the Gardaí will normally have exclusive control of it and the question of what precisely happened to make it unavailable is a matter within their exclusive knowledge It would appear to me to be very strange and very illogical to impose on the defendant a burden of showing what happened to an item in someone else s custody It seems equally problematical to me to say that when an item has become lost or destroyed while in official custody it is for the defendant to prove that it would certainly or even probably have been of evidential use The real risk of prejudice is the most that such a person can show when the custodians of an item have allowed it to become unavailable This proposition is pellucidly explained in the U S cases cited 166 The real risk of prejudice test well established in Irish jurisprudence seems to mirror the distinct possibility of exonerating evidence to which Blackmun J refers in Youngblood cited above Retrospect revisited 167 It occurs to me that the engine of the view which would deny relief in the present case is the belief that Mr Wall s emphasis on the lost potential for fingerprint evidence is somehow a retrospective hypothesis Thus it is said While in retrospect it is certainly unfortunate that members of the Gardaí did not immediately act upon Lyndsey Hudson s statement or anticipate that further evidence from Stephen Wall or somebody else might change the focus of their enquiries and make fingerprint evidence possibly useful 168 I entirely agree with the main factual core of that passage it is certainly unfortunate that members of the Gardaí did not act immediately upon Lyndsey Hudson s statement 169 I would however use a stronger word than unfortunate I would say it is unexplained and gives rise to a real possibility of grave injustice However the passage quoted is introduced by the phrase While in retrospect 170 This perhaps points up a very important distinction in the views taken of the facts of the case I cannot agree that it is only in retrospect or with hindsight that it is unfortunate or worse that the Gardaí did not act immediately on the allegation of Lyndsey Hudson It will be recalled that still another judgment likewise spoke of a retrospective hypothesis 171 The allegation of Ms Hudson was an extremely serious one She had been the driver of a car which gone on to the wrong side of the road causing a young passenger to loose her life Interviewed under caution about this she explained that it was not due to any want of care on her part that this tragedy occurred but due to a deliberate act of one of her passengers Jason Wall The extreme seriousness of this should have been apparent to any person of normal intelligence I have no doubt it was in fact perfectly clear to the Gardaí Nevertheless the Gardaí who heard the allegation made did not tell their own expert also a member of the Gardaí about the allegation and have offered not one word of explanation as to why this was so Eleven days later they released the car for destruction thereby making any search for objective evidence of the truth or falsity of Lyndsey Hudson s allegation forever impossible 172 These are quite extraordinary acts and omissions The reason they occurred is within the exclusive knowledge of the Gardaí and perhaps of the prosecution They should not have occurred and that was evident from the moment Ms Hudson made her allegation on the 18th August 2005 There is no question whatever of retrospect or hindsight and no evidential basis to think otherwise 173 The passage with which I have agreed continues unfortunate that members of the Gardaí did not immediately act upon Lyndsey Hudson s statement or anticipate that further evidence from Stephen Wall or somebody else might change the focus of their enquiries and make fingerprint evidence possibly useful 174 I frankly do not understand this reference There is no evidence whatever that anything occurred after Ms Hudson s allegation to change the focus of their enquiries The Gardaí eventually told Mr Wall of her allegation about four months later in December 2005 which was two to three months before the new statement made by Stephen Wall while a prisoner in Mountjoy The reference to a change in focus in fact is another aspect of the retrospect theory There was no need for anything to happen after the 18th August to make a fingerprint examination possibly useful It was manifestly possibly useful and I believe a great deal more than that on and from the 18th August No guard has given evidence of a change of focus 175 Since the Gardaí themselves have not claimed that the investigation underwent any sort of change of focus and since there is no other evidence for that point of view to posit a change of focus and something giving rise to it in an evidential vacuum seems to me unduly favourable to the Garda case I cannot see that there is any evidence much less coercive evidence arguing the existence of a change of focus or something that gave rise to it I believe that to infer such a change of focus merely from the fact that the Gardaí did not in fact communicate Lyndsey Hudson s accusation for many months is to assume that they would not have behaved in that way without some good reason I can see no basis for that assumption Firstly the Gardaí themselves have not contended for the proposition that the focus of the investigation shifted Secondly there is no evidence that any such thing occurred and thirdly the chronology is against it Stephen Wall s statement came a month or more after the allegation was eventually put to Jason Wall Stephen s statement may have been the reason Jason was charged but it was not the trigger or change in focus which led to Lyndsey Hudson s allegation being put to him I can see no other candidate for that role No one says that the focus shifted and it is not easy to see what precisely could have changed between the 29th August 2005 and the 26th January 2006 176 In reasoning thus I am far from alleging some form of positive malpractice by the Gardai or anyone connected with them It may be that there was some element of happenstance maybe the guard who gave away the car had not heard of the young lady s allegation maybe the guard who did hear it forgot about the case for a long time and was then faced with enquiries about it This of course is pure speculation as is the shift of focus theory and I mention it only to suggest that the hypothesis of some unnamed event or development which changed the focus of the enquiry is by no means the only one rationally available And it must be recalled that the need to speculate or to attempt to draw inferences from insufficient material arises entirely from the Garda failure to disclose who precisely gave away the car and what reasons he or she had for doing so why Mr Wall was not told of the driver s allegation until so many months had passed and the many other relevant matters mentioned above 177 At para 24 of the same judgment my colleague remarks that There is no doubt that if a fingerprint examination had been carried out or the vehicle retained that these arguments could not have been made but the question whether a trial should be prohibited depends on an analysis of the culpability of the omission and the materiality of the evidence which was not obtained in the context of the case as a whole 178 I wish entirely to disavow the notion of an analysis of the culpability of the failure to carry out a fingerprint test or failure to retain the vehicle Culpability for these things could only be culpability of the Gardaí There is no support whatever in the existing jurisprudence for the view that this jurisdiction exists to police the Gardaí and I wish to disavow that proposition entirely The Gardaí are already subject to the ordinary criminal law their own disciplinary code and in some sense to the Garda Inspectorate another forum of responsibility is hardly needed On the contrary on the existing authorities the entire focus of these cases must be whether it has been shown that the defendant has incurred a real risk of an unfair trial One cannot analyse with any precision either the materiality of evidence which has been lost or destroyed without examination as I have said supra that is why a real risk of prejudice is all that can possibly be shown The defendant is not responsible for the loss of the item which should have been examined before the Gardaí allowed it to be destroyed 179 I would allow the appeal and grant the relief sought 2013 IESC 56 THE SUPREME COURT 416 2008 Denham C J Hardiman J O Donnell J Clarke J MacMenamin J JASON WALL Appellant Applicant and THE DIRECTOR OF PUBLIC PROSECUTIONS Respondent JUDGMENT of Mr Justice Hardiman delivered the 11th day of December 2013 Overview 1 In my view this is a case of very great importance It is about whether the Gardaí can prosecute a citizen on a serious charge based on eye witness testimony alone without taking what is said to be an obvious step to gather forensic evidence fingerprints which has the potential to contradict the eye witness testimony No explanation has been given of the failure to take fingerprints or of the destruction of the sole item from which the prints could have been taken without even informing the defendant of what was alleged against him 2 The appellant Jason Wall is a young man from South County Dublin He has no previous convictions He was a back seat passenger in a Honda car driven by a young woman on her first provisional licence The car went on to its wrong side of the road and struck an oncoming vehicle The front seat passenger another young woman was tragically killed in the impact The party in the Honda were returning from a christening celebration in a public house about half past midnight one night in mid August 3 After the accident the driver said she could not explain what had happened she lost control of the car The Garda Forensic Collision Examiner concluded in his report The primary cause of the collision lies with the driver of the Honda who failed to keep her vehicle on its correct side of the road 4 Some days after the accident the driver was interviewed by the Gardaí under legal caution The significance of this form of caution is discussed below At this interview she changed her account and claimed for the first time that Jason Wall caused the impact by reaching between the front seats of the car grasping the steering wheel and pushing it to the right 5 For some unexplained reason the Gardaí did not tell Jason Wall of this allegation for about four months until December of the relevant year Long before that on the 29th August they had released the car to the owner s insurers for destruction They did not tell their own expert either what the driver had alleged The Gardaí later confirmed to Mr Wall s solicitor that they did not have the steering wheel examined for fingerprints 6 Neither the Gardaí nor the prosecuting authorities have offered any explanation for whatever for these acts or omissions even though there must be some explanation and that explanation is within their exclusive knowledge 7 About two months after the Gardaí told Jason Wall of what the driver had alleged another passenger Stephen Wall made a statement confirming the driver s allegation He had previously said he did not know what had happened Stephen Wall is not a man of good character having several convictions for robbery and burglary He was serving a sentence in Mountjoy Jail when he made this statement in February of the following year There is no explanation of how he came to make it 8 The appellant Jason Wall was charged in July of the year following the accident with two offences These are discussed below for the present it is sufficient to note that one of them carries a maximum sentence of fifteen years imprisonment 9 It must be evident that to be tried on indictment on a charge carrying the maximum penalty of such terrifying proportions is more than distressing for a young man of good character Even a much lesser sentence would carry every prospect of blighting his life and destroying his career He is entitled not to be convicted except on clear and satisfactory evidence after a trial in due course of law Such a trial involves in my view a proper investigation by the Gardaí in which all reasonable steps to gather relevant evidence have been taken The appellant here complains that he has been deprived by the unexplained failure of the Gardaí in the hours and days immediately following the driver s allegation to avail of the opportunity to seek fingerprint evidence from the steering wheel The results of such an examination of the wheel would have been either consistent or radically inconsistent with the driver s allegation It would thus involve a reasonable possibility of forensic evidence which would have supported either the prosecution or the defence He also complains that by permitting the destruction of the car eleven days after the driver s allegation and without telling him of the allegation they deprived him of the possibility of having the vehicle examined by an expert retained by him for the fingerprints which the Gardaí had omitted to seek On that basis he says his trial would not be a trial in due course of law and therefore seeks to prohibit it 10 In the January following the fatal incident that is about five months later when the Gardaí were interviewing Jason Wall about the driver s allegation they asked him if he would voluntarily provide them with his fingerprints This is only consistent with a belief on their part that a fingerprint examination would be useful in establishing or in contradicting the driver s allegation Mr Wall gave his fingerprints voluntarily I think that any innocent person would have done so in the belief that a fingerprint examination of the steering wheel he was alleged to have grasped would clear him But there in truth was no prospect of such an examination because apparently unknown to the Gardaí who asked Mr Wall to provide his fingerprints the car had long since been destroyed 11 Fingerprint evidence is the oldest and one of the most reliable forms of forensic evidence Some material illustrating its history and scope is set out at Appendix I to this judgment 12 This case like many others in recent decades about film or forensic evidence raises a legal question which is easily formulated if much more difficult to answer It is this Is it open to the Gardaí equipped as they are with enormous statutory powers for the taking of fingerprints and other forensic samples in a given case simply to ignore that possibility and to rely exclusively on evidence of a more traditional kind Is it open to the Gardaí to confine their investigations and examinations to traditional forms of evidence which they believe will support the prosecution theory of a case and to decline the opportunity to seek more objective evidence which however may undermine the prosecution s theory 13 The Garda Síochána is and has been since 1925 the sole police force in Ireland see the Police Forces Amalgamation Act 1925 In common with many modern police forces it has been given enormous powers over persons and property in order to facilitate the investigation of crime These include a common law power judicially recognised since as long ago as 1887 to take possession of and retain items of property which have a bearing on the question of the guilt or innocence of a person charged with a criminal offence 14 Developments in the field of technology and forensic science have cast this power in a new light Nowadays huge swathes of our cities and towns are the subject of surveillance by video cameras These can be absolutely vital in the detection of crime the conviction of the guilty and just as important the acquittal of the innocent Forensic science has developed techniques of unimaginable sophistication even by the standards of one or two decades ago which can often demonstrate whether a particular person was in a particular place or in physical contact with another person or thing in very many cases Even older techniques such as fingerprinting developed in France before the end of the 19th century have been brought to a new and previously unimagined level of sophistication 15 But these techniques are useless unless the police have first gathered and examined the relevant material It is impossible to look for fingerprints on an item which has been lost or destroyed It does not matter how good the footage from a video camera may be if it was never taken possession of with the result that it has become lost or decayed or recorded over or the Gardaí themselves have destroyed it or given it away 16 It is of the utmost importance therefore that the Gardaí should find gather preserve and retain all such material whether it favours or is thought likely to favour the theory of the prosecution in a particular case or not Forensic science and technology must be a servant of justice not merely of a policeman s or a prosecutor s theory of the case 17 This may seem trite but experience shows that it is essential to bear it in mind All the classic miscarriage of justice cases from that of Captain Dreyfus in the 1890s to that of the Guilford Four resolved about a century later and the Shortt case in still more recent years turned in one degree or the other on the suppression of evidence The same pattern can be seen in less notorious cases as well In Braddish v Director of Public Prosecutions 2001 3 IR 127 the location where a robbery committed was covered by a video camera An investigating garda viewed the video but did not propose to use it for the purpose of a prosecution He said that while he could identify the defendant from the video he preferred to rely on an alleged confession of the defendant made after he had been arrested allegedly because the video identified him The video itself was no longer available at the time it was sought even though it had been in the possession of the Gardaí In those circumstances the Court granted relief against further prosecution In the course of doing so the Court said in relation to the duty of the Gardaí in such circumstances It is the duty of the Gardaí arising from their unique investigative role to seek out and preserve all evidence having a bearing or potential bearing on the issue of guilt or innocence That is so whether the prosecution proposes to rely on the evidence or not and regardless of whether it assists the case the prosecution is advancing or not Emphasis added 18 This finding although possibly obiter in the case of Braddish was subsequently adopted by the Court in Dunne v DPP 2002 2 IR 305 19 There are two important observations to be made about that finding The same judgment went on to say the duty to preserve and disclose it has to be interpreted in a fair and reasonable manner a duty so qualified cannot be precisely or exhaustively defined in words of general application Certainly it cannot be interpreted as requiring the Gardaí to engage in disproportionate commitment of manpower or resources in an exhaustive search for every conceivable kind of evidence The duty must be interpreted realistically on the facts of each case 20 Secondly there is a distinction drawn in the cases on this subject between on the one hand evidence which was at one time undoubtedly in the possession of the Gardaí but was subsequently lost or destroyed by them or given by them to someone else for the purpose of destruction on the one hand and on the other hand evidence which was never in the possession of the Gardaí but which they might have come into their possession had they used reasonable diligence to find it In the reported cases these two quite different kinds of evidence are distinguished by the use of language such as a duty to preserve and maintain all evidence which comes into their possession in relation to evidence of the first kind and a duty to seek out and preserve all evidence having a bearing or potential bearing on the issue of guilt or innocence on the other hand 21 It is interesting and on one view significant to bear in mind that in this case we are dealing with evidence of the first kind The Gardaí had had in their possession an evidential item the car and steering wheel which in my view had a manifest bearing on the evidence of guilt and innocence Nevertheless they permitted this evidence to be destroyed by giving it to a person who wanted it for that purpose At the time they did this the Gardaí were aware of the very serious allegation against the present appellant but had not told him about it so that he himself could take no step to secure the evidence 22 It is with considerable regret that I have to say that in my view the result of the present case represents a considerable diminution in the rights of defendants to have evidence which might prevent a wrongful conviction sought out examined and preserved Since at least the decision of this Court in O Connell v Fawsitt 1986 IR 362 it has been the duty of the High Court or this Court on appeal to intervene where a criminal defendant has been prejudiced in his chance of a fair trial on indictment and not simply a matter to be left to the trial judge I regret that I must record my view that Mr Wall the defendant in the present case and the appellant in these proceedings has been gravely prejudiced in his prospects of a fair trial 23 I wish to record two judicial pronouncements with which I am wholly in agreement The first of these is from the decision of Fennelly J in his judgment in Dunne 2002 2 IR 305 cited above Speaking of two cases where evidence capable of giving rise to useful scientific or technical examination but later lost is at issue he said pp 342 343 All this takes place in the context of a possible trial and it is of the greatest importance that the Courts ensure that the police force behaves with impeccable fairness in its handling of evidence 24 A similar principle it seems to me was expressed by Justice Blackmun in the United States Supreme Court in Arizona v Youngblood 1988 488 US 51 when he said at p 61 The Constitution requires that criminal defendants be provided with a fair trial not merely a good faith try at a fair trial Respondent here by what may have been nothing more than police ineptitude was denied the opportunity to present a full defence That ineptitude however deprived the respondent of his guaranteed right to due process of law 25 The Youngblood case is further discussed below But I wish to assert my conviction that Justice Blackmun correctly stated the true principle of law which should apply to these cases in any State bound to observe due process of law 26 It may not be entirely irrelevant to note that Youngblood was finally proved to be absolutely innocent and the real perpetrator of the crime of which he was convicted was found by enhanced forensic techniques By then however Youngblood had spent nine years in a prison in Arizona most of which he would have been spared had Justice Blackmun s view prevailed 27 This is the appeal of the appellant from the judgment and order of the High Court Mr Justice O Keeffe of the 13th November 2008 whereby Mr Wall was refused the relief which he sought This relief consisted of the prohibition of any further prosecution by the DPP on charges of reckless endangerment and secondly of the unlawful seizure of a vehicle 28 These are significant offences The offence of endangerment was created by s 13 of the Non Fatal Offences Against the Person Act 1997 By reason of s 13 2 b of that Act it carries a maximum sentence of seven years imprisonment The second offence that of the unlawful seizure of a vehicle was created by s 10 of the Criminal Law Jurisdiction Act 1976 By reason of s 10 1 of that Act this offence carries a maximum sentence of fifteen years imprisonment 29 It is therefore clear that each of these offences is a very significant one Neither is a minor offence either in the colloquial sense or in the more technical sense of the term minor deriving from Article 38 of the Constitution Kernal issue 30 The issue at the core of this case can be simply stated although it will immediately be necessary to turn to the rather complicated individual facts out of which the kernel issue arises 31 The appellant was a back seat passenger in a car which was involved in a fatal collision when it crossed to its incorrect side of the road and struck an oncoming vehicle The driver of the car a young lady on her first provisional licence at first said that she did not know what had happened that the car went out of control A few days later however while being questioned under caution see below the driver claimed that the appellant had caused the accident by grasping the wheel of the car and turning it to the right 32 It is common case that this allegation was not communicated to the appellant for many months after the accident It was not communicated either to a garda expert who examined the car four days after the driver s claim was made No explanation has ever been given for the failure to inform either the appellant or the Garda Expert of the allegation made by the driver

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  • to confine their investigations to forms of evidence that would support a prosecution theory of the case To so frame the issue certainly suggests an answer but for me the issue is more complex and nuanced and for that reason I would welcome further debate and analysis 30 Arizona v Youngblood is helpful in one respect in the analysis of this case Leaving aside for this purpose the judgment of the majority since it is not suggested that bad faith should be the criterion to be applied it is instructive that Stevens J who concurred in the result and the minority who dissented agreed on the application of a test of materiality but differed as to the result The key feature in Arizona v Youngblood which bears comparison with the facts of this case was the nature of the test available which could be carried out on the victims clothing on the basis that the semen sample left on the clothing was that of the assailant Even with the state of scientific knowledge at the time and long therefore before the forensic advances which are now commonplace it was possible to carry out tests which if certain results were received could have entirely exonerated the accused As is lucidly explained in the judgment of Justice Blackman samples of bodily fluid such as semen can show whether the person leaving the sample was a secreter or not p 68 i e somebody who does or does not secrete a blood type marker in such fluids Thus if the sample showed positively that the assailant was not a secreter and the accused was a secreter then that result would exculpate the accused If the sample showed that the assailant was a secreter then it might be possible to detect the blood type and if that blood type differed from that of the accused that evidence would be positively exculpatory Of course each of these scenarios involved a difference in the result If the accused was not a secreter and so was the sample then the evidence would be of no assistance to the accused but also of little forensic value to the State given the number of persons who are secreters and non secreters The same point might be made about blood type They key feature for the dissenters in Arizona v Youngblood therefore was that if tested the sample could have revealed an immutable characteristic of the criminal and hence to exculpate a defendant charged with the crime p 69 It was because the evidence was relevant revealed an immutable characteristic of the actual assailant and was of a type likely to be independently exculpatory p 70 that the dissenters would have quashed the conviction Distinguishing the case from California v Trombetta Justice Blackmun concluded that there was a distinct possibility in this case one not present in California v Trombetta that a proper test would have exonerated the respondent unrebutted by any other conclusive test results p 68 31 This may illustrate an important distinction in this case Here the position is almost the reverse In order to understand why this may be so it is regrettably necessary to revisit once more the facts of this case That task however serves to confirm my scepticism about an exercise in which trained lawyers pore over the papers presented for judicial review in search of arguments admissions or omissions which can be deployed to advance their argument and my preliminary view that it would be preferable if these matters were addressed in a trial court with if necessary the capacity to pursue issues through oral evidence and to revisit those issues as the case proceeded Insomuch as scrutiny inevitably is brought to bear on the investigatory work of the gardaí I believe it should be understood first that the process of trial in due course of law is focussed on the trial of the issues of fact and law between the prosecutor and the accused and only addresses questions of investigatory process insomuch as it is relevant to that task and second that any review of actions taken at the time must be conscious that those matters are to be judged by the circumstances of the time rather than through the high powered lens afforded by the reflection over time by trained lawyers with endless and it seems perfect hindsight on the single issue to which attention is directed in the particular case 32 Having reread the papers and exhibits I should record my impression that the investigation here was thorough The Book of Evidence runs to 70 pages and contains statements from 18 witnesses The disclosure of additional material and original statements runs to more than a hundred pages pursuing a number of issues not the subject of attention or comment in these proceedings The carrying out of these inquiries and the taking of the statements all involve a considerable amount of time quite apart from all other work in which the relevant gardaí may have been engaged The relevant sequence appears to be that the accident occurred in the early hours of the 14th of August 2005 The scene was examined by Sergeant Colm Finn a trained forensic collision inspector who was called to the scene of the fatal and life changing accident in order to carry out a forensic reconstruction of the incident He did not carry out any fingerprinting tests and since he did not give oral evidence and was not asked to do so we do not even know if that was among his functions or skills or was normally done at the scene of fatal accidents where the driver is in the driving seat and there are many witnesses to the driving In any event no complaint is made about this He did find that the interior of the car had suffered such extensive damage that it was not possible to examine it 33 We do however know quite a lot about the scene at which he attended In the words of one of the witnesses it was a scene of carnage One of the occupants of the car Ciara Brack was trapped hanging out through a window She was bleeding and had been physically sick She had sustained tissue damage to her brain stitches to her head a clot on her spleen and a nerve fracture to her left arm Emma Wall who had been a front seat passenger was lying on the back seat in shock with visible wounds to her legs right thigh and calf area and obvious intra abdominal bleeding At 4 10 that morning she died from her injuries Two male occupants of the car were seen by the driver of the other car to be engaged in a row first in the car and then outside Stephen Wall a brother of Emma Wall and a cousin of the accused has said that he went to Jason Wall and told him that if anything happened to his sister he would punch the head off him Jason Wall does not accept this and suggested he had a row with another friend The gardaí pursued this question and the additional disclosure contains a statement form that young man which does not support Jason Wall s account It appears clear that Jason Wall was involved in getting the driver Lindsay Hudson out of the driver s seat and out of the car The motor vehicles were removed to Gannon s yard where they were inspected on the 17th of August by Garda McCallion a PSV inspector and were inspected again by Sergeant Finn on the 23rd of August In between these inspections on the 18th of August Lindsay Hudson made a statement to Sergeant Daniel Garrity in which she alleged that Jason Wall had grabbed the steering wheel 34 It is said on behalf of Jason Wall that the fact that the making of this statement ought to have led to the taking of fingerprints either by Sergeant Finn on the 23rd or at least before the removal and scrapping of the car which occurred by the 29th of that month at the latest Alternatively it is said that the vehicle should have been maintained to allow such fingerprint testing to be carried out on behalf of Jason Wall There is no doubt that if a finger print test had been carried out or the vehicle retained these arguments could not have been made but the question whether a trial should be prohibited depends on an analysis of the culpability of that omission and the materiality of the evidence which was not obtained in the context of the case as a whole While in retrospect it is certainly unfortunate that members of the gardaí did not immediately act upon Lindsay Hudson s statement or anticipate that further evidence from Stephen Wall or someone else might change the focus of their inquiries and make fingerprint evidence possibly useful and not just to the defence I do not think that the investigation can be fairly characterised as grossly deficient or seriously negligent 35 The observations made in the last sentence of the foregoing paragraph have been subjected to forceful scrutiny in the judgment my colleague Mr Justice Hardiman delivers Recognising the force of the analysis as I do I cannot however agree If it was an inference that the focus of the Garda inquiries changed it was one that seemed and seems inescapable since at a most basic level the initial Garda forensic examination placed the blame for the accident squarely on the driver and a passenger is now charged and uncontroversial It is not the only inference drawn from the evidence in this case The reference to retrospect was intended to do no more than observe that it was clearer now that fingerprints should have been sought than it may have been at the time when different people were taking the statements examining the car directing the investigation and deciding to dispose of the car It does appear to me relevant that the issue is considered in terms of what the Gardaí should or ought to have done If it were not it would not be necessary to debate what the Gardaí did or did not do and the strength of the epithet to be applied to their conduct Indeed the stress laid on the fact that one member of the Gardaí had taken Ms Hudson s statement inculpating Jason Wall before the car was removed for destruction is consistent with an approach which considers it relevant that the gardaí were at fault in releasing the car Would anyone contend that this trial should be prohibited if the car was no longer available for fingerprinting because of factors outside the control of the Gardaí or prosecution generally such as a fire at the scene of the accident or indeed thereafter It seems to me that what the prosecution does can be relevant to the fairness of the trial I would wish to repeat however that these references should not be understood as contending for a test that trials should only be prohibited when the police are shown to have acted in bad faith 36 I would accept that materiality is perhaps the factor to which most weight should be given It is possible to conceive of some cases where the evidence is so central that no fair trial could take place without it But in more contestable cases where a trial could take place in the absence of the evidence it is not irrelevant to the court s assessment if the evidence was lost through carelessness gross negligence or worse Here I was merely recording my impression of the garda inquiry generally I do not understand that the concept of materiality should be controversial It is no more than the idea that there must be a real engagement in a specific way with the evidence actually available in the case Mc Farlane v DPP 2007 1 I R 134 If in a case such as this there was no question of another actor and a prosecution was brought against the owner driver of a car would it be suggested that the release of the car for scrappage would mean that no trial could take place Obviously most contested cases are more complex and nuanced which is a further reason perhaps to consider that they should be addressed either before or at a trial which will be able to assess on the evidence as it actually develops whether there is any unfairness to the applicant incapable of remedy by the trial court for which the prosecution is responsible McFarlane 147 rather than by a process of drawing inferences from affidavits 37 What then is the potential significance in this case of fingerprint evidence or more precisely evidence that no fingerprints could be detected In my view it is very far removed from the type of demonstrably exculpatory test involved in Arizona v Youngblood This was not a car in pristine condition awaiting investigation It was a car involved in a serious accident in which the front seat passenger received fatal injuries and a rear seat passenger was trapped in the car seriously injured and had to be removed from it In addition the driver was removed from the car by Jason Wall himself The interior of the car was so damaged it could not be inspected at the scene It was not the case that this was the first time Jason Wall was in the vehicle in which case the presence or absence of fingerprints if capable of being found might have particular significance On the contrary Mr Wall s affidavit goes to some lengths to explain why it is to be expected that his fingerprints would have been found in the car and on the steering wheel It is said in the replying affidavit of Sergeant Denis Whelan and apparently accepted that Jason Wall was the then boyfriend of Lindsay Hudson and had been in the car on an almost daily basis and sat in the driver s seat on several occasions Mr Wall addresses this specifically in his own affidavit as follows I appreciate that the presence of my fingerprints in any part of the car including the steering wheel would probably have been of little evidentiary value as Lindsay was my girlfriend at the time and I would have been in the car anyway But he goes on to say that he is advised and believes that the converse is not true in that the absence of fingerprints from the steering wheel could be considered to be highly relevant 38 As the extract from the affidavit makes clear this is a legal argument introduced through a witness s affidavit which is perhaps unobjectionable in ordinary judicial review but which illustrates the difficulty in this fact specific context of assessing the evidence not in its raw state but as selected and presented through words directed towards a legal argument In any event I consider the argument is overstated as a matter of logic The thrust of Mr Wall s evidence as to his repeated presence in the car is that his fingerprints are to be expected to be found in the car and on the steering wheel But if this is so then if such prints were not found it would be clearly wrong to conclude or infer that Mr Wall had not been in the car or had not touched the steering wheel because we know on his own admission that he had been there The absence of fingerprints would prove only that that fingerprints were not found In the absence of some positive evidence that if the incident occurred as described by Ms Hudson and Stephen Wall it must have left a fingerprint on a wheel which would still have been detectable after the rescue efforts and movements involved in the recovery of the injured and the removal of the cars and such evidence is neither likely nor suggested in this case then evidence that fingerprints were not found is a world removed from the type of positive exculpatory evidence discussed in Arizona v Youngblood for example At most if tests had been carried out and fingerprints not found it would have allowed an argument to be made to the jury that the absence of fingerprints was consistent with Jason Wall not having touched the wheel But such arguments are the essence of criminal trials and the failure to carry out a fingerprint test and indeed the fact that the car is no longer available allows a different argument to be made one which this line of authority shows is persuasive to some while depriving the prosecution of whatever argument might be made as to the conclusions which might be drawn from a positive result This must be placed in the context that there are already a number of arguments canvassed in this case on behalf of the defence including the failure to test Ms Hudson for consumption of alcohol the likely absence of the driver of the other car and the fact that the initial statements of Ms Hudson and Stephen Wall did not inculpate Jason Wall In all the circumstances I do not see how the matters complained of reach the point of requiring that a trial be prohibited 39 The fundamental facts in this case are that a young woman was killed and others injured as a result of a manoeuvre carried out which caused the car to cross to the incorrect side of the road and collide with another vehicle It seems common case now that whatever caused the fatal swerve occurred inside the vehicle in the fateful moments before the collision There were five people in the car at the time One of them is dead and two of them have now given accounts of what transpired which if the trial proceeds they will give orally on oath be cross examined upon and which will be considered by the jury under the guidance of a judge in the context of all the evidence and arguments in the case Put at its lowest I do not consider that the administration of justice requires that such a trial should be prevented THE SUPREME COURT Appeal Nos 416 2008 433 2008 Denham C J Hardiman J O Donnell J Clarke J MacMenamin J BETWEEN Jason Wall Appellant Applicant and The Director of Public Prosecutions Respondent Judgment of O Donnell J delivered on the 11th day of December 2013 1 It is now more than eight years since a car driven by one young woman and in which four other young people were passengers was involved in a fatal car crash at Church Road Ballybrack County Dublin which resulted in the death of one of the passengers Emma Wall the cousin of the applicant herein It appears at least for present purposes that any innocent mechanical explanation for the collision can be excluded and that the immediate cause of the collision was the fact that the car in which the young people were travelling was suddenly steered onto the incorrect side of the road and collided with an oncoming car If the car was caused to swerve onto its incorrect side of the road then at least prima facie criminal liability could attach to the actor responsible for that The fundamental question in this case would appear to be who was responsible for that manoeuvre Here as set out in the judgments of my colleagues there is evidence in the shape of statements from two of the occupants of the car that the immediate and proximate cause of the car swerving onto the incorrect side of the road was that the applicant Jason Wall then a rear seat passenger reached between the front seats and grabbed the steering wheel of the car causing the driver to lose control 2 When there is evidence from which criminal wrongdoing can be deduced the Irish legal system established under the Irish Constitution provides an elaborate well understood and I believe well trusted system for the trial of the issue of the guilt or innocence of an accused person That not only involves the preparation and presentation of a charge but also a trial of the issues of fact and law in due course of law under Article 38 of the Constitution which requires inter alia a trial which accords with fair procedures conducted before an independent tribunal which in this case as in the case of all but minor offences and those triable by special courts will be a judge with a jury drawn from a representative sample of the population and where in any serious matter legal aid will be provided if the accused person is not able to make provision for legal assistance from his or her own resources In such a trial the determination of facts will normally occur only by reference to admissible evidence and the onus of proof is on the prosecution to prove guilt which will only be found where it is established to the satisfaction of the factfinder beyond any reasonable doubt Any conviction arrived at can be appealed to a court which will either rehear the matter where it relates to a summary trial or to a court which will review the proceedings in the trial court All of this and more is I consider comprehended by trial in due course of law pursuant to Article 38 of the Irish Constitution and the administration of justice generally under Article 34 3 But no Article 38 trial of the serious issues arising in this case has yet occurred If the appellant succeeds in this case no such trial will take place If his appeal is rejected however the trial may commence but at a long remove in time from the events of August 2005 with all the undesirable consequences for the availability of witnesses the state of the memory of such witnesses who are available and the general degrading of evidence which is now well recognised Neither outcome can be said to be intrinsically desirable It may however be the case that such an unattractive Hobson s choice is the price that must be paid for a system which maintains the values of demonstrable fairness There are many circumstances in which the administration of justice requires a price to be paid in terms of efficiency and in terms of the pursuit of wrongdoing in the interests of fairness But it is at least in my view a legitimate question whether the heavy price exacted is an unavoidable requirement of the constitutional guarantee of a trial in due course of law 4 The claim in these proceedings which was required to be determined before any trial could take place if at all was that the failure of investigating gardaí to obtain evidence in the nature of a fingerprint test from the steering wheel of the car or perhaps put another way the release by the gardaí of the crashed motor car from their custody without any fingerprint test having been carried out on the steering wheel meant that there was a real risk of an unfair trial and accordingly that no trial at all could take place This type of contention will be immediately familiar to anyone with even passing familiarity with the decisions of these courts in recent years Cases involving lost evidence or missing evidence or variants thereof have become a very familiar feature of litigation in the Superior Courts notably since the landmark case of Braddish v Director of Public Prosecutions 2001 3 I R 127 5 It has been said that in this fact intensive and fact dependent area each case depends on its own particular facts In this case MacMenamin and Hardiman JJ have engaged in great indeed meticulous detail with the facts as disclosed or as may be deduced from the affidavit evidence and have conducted considerable research albeit coming to very different conclusions While I admire the considerable rhetorical force of the judgment delivered by Hardiman J and respect the sentiments which underlie it I have come to the conclusion that I agree with the judgment of MacMenamin J in this admittedly difficult case Normally it would be sufficient to simply record my respectful agreement with the majority judgment But my experience of this line of authority culminating in this case has led me with greater clarity and conviction if anything to the conclusion that the line of authority which has generated so many decisions in the Superior Courts in recent years deserves a comprehensive re examination I readily acknowledge that these matters were not argued in this case and my observations are therefore tentative and may be subject to reconsideration if and when the matter is fully argued However I consider that these matters require to be raised and deserve full and focussed scrutiny in an appropriate case 6 It is not normally a function of a final court of appeal to conduct a meticulous examination on a case by case basis of the discernible facts of individual cases which have not yet come to trial A line of jurisprudence which has as its central principle the proposition that each case must be determined on its own individual facts is a line of jurisprudence which guarantees that many if not all such individual cases will inevitably reach the High Court and this Court on appeal with all that involves in terms of the delay of criminal trials on the one hand and the use of scarce resources on the other This meticulous examination of the facts alleged to be in issue in individual cases occurs in a context where the jurisdiction in this and similar cases is one which is supervisory and it is said exceptional This examination by reference to affidavit evidence takes place even though there exists a well developed carefully and finely calibrated mechanism for the trial of offences involving the testing of evidence the determination of facts on oral evidence by well established standards and a comprehensive review on appeal which it might be thought more naturally adapted to the ascertainment and evaluation of facts and the particular task of ensuring the fairness of criminal trials In my view a consideration of this line of authority gives rise to a number of questions Why is the issue of missing evidence and or delay dealt with by way of judicial review 7 Scrutiny by way of judicial review in anticipation of a trial has obvious practical and unhelpful consequences both in terms of the delay of any trial and the consequential increase in burden upon the Superior Courts It thus requires to be justified However even assuming a perfectly resourced system both in trial and appellate courts and that is an ideal unlikely ever to be achieved in practice there are other significant problems with the system of judicial review when used to determine issues relating to missing or lost evidence Judicial review is a system designed or at least intended to provide a speedy determination of issues relating to the jurisdiction of inferior courts It is well adapted to determine precise issues of law It is poorly adapted for the resolution of factual matters particularly when those issues are to be determined in advance of a trial and through the imperfect lens of affidavits necessarily drafted by professional advisers and which perhaps understandably seek to maximise that party s case while exercising caution about revealing testimony capable of being deployed against the party in the event that a trial might ensue Looked at from the vantage point of function and efficiency it might be thought that the examination of facts and the impact of the presence or absence of such facts upon the fairness of a trial should take place in the trial court with the possibility of review on appeal However currently such claims are addressed by judicial review If the Constitution or more general principles of fairness demands that this be so then it must indeed be so But it is a process which at a minimum requires justification 8 The doctrinal source of what appears to be a jurisdiction unique to Ireland whereby questions of missing and lost evidence are adjudicated in advance through the mechanism of judicial review is a single short passage in the judgment of this court in The State O Connell v Fawsitt 1986 I R 362 That case involved a challenge to a case then awaiting trial in Cork Circuit Court not on grounds of missing evidence but because of the undue delay in securing a trial date and a consequent alleged prejudice caused by the absence and unavailability of witnesses The context of the case it appears was a lack of resources and growing delays in particular at Circuit Court level rather than any more general principle 9 In the High Court Murphy J having carefully reviewed the case and case law both domestic and international refused prohibition He considered it important that the delay in question was largely located in the delay in having a case listed for hearing and therefore only occurred after adjournment applications made to and considered by the trial court It followed therefore that the delay was at least being monitored by the court He expressed the view that the trial court should at least in the first instance deal with the question of the impact on the case of such delay He continued not only would the judge have been conscious of these factors but he would have been well aware of the powers which a trial judge would have had to give appropriate warnings or direction to the jury to prevent any injustice arising as a result of any such defect Indeed in granting any application for an adjournment or in permitting the trial to continue at any time in the future a judge of the Circuit Court has the same duty as this court to recognise and vindicate the constitutional rights of the accused Accordingly if the learned Circuit Court judge is satisfied that in all of the circumstances of the case as established before him that the delay was excessive or unduly prejudicial to the prosecutor it would be the right and duty of the Circuit judge to dismiss the pending charges and I have no reason to doubt that he will adopt that course if it is appropriate so to do In recognising the rights powers and duties of the trial court I do not intend in any way to abdicate the functions or duties of this court Rather I am concerned that the case made on behalf of the prosecutor involves a combination of arguments and propositions some of which involve differences of emphasis if not indeed disputes of facts others are based upon problems which are anticipated but either may or may not materialise or may be resolved at or prior to the trial It is only the delay which is an undisputed objective fact and even in relation to that I believe that it would be preferable for the court which granted the adjournments from time to time to deal with the matter in the first instance at any rate p 374 10 The Supreme Court reversed the High Court decision and allowed the appeal In a short judgment Finlay C J with whom Walsh Henchy Griffin and McCarthy JJ agreed quoted a portion of the judgment of Murphy J including the passage set out above up to the words I have no reason to doubt that he will adopt that course if it is appropriate so to do The essence of the decision of the Supreme Court is to be found in a subsequent paragraph of the judgment which it is desirable to set out in full I have come to the conclusion that in this portion of the judgment the learned trial judge was in error I am satisfied that if a person s trial has been excessively delayed so as to prejudice his chance of obtaining a fair trial then the appropriate remedy by which the constitutional rights of such an individual can be defended and protected is by an order of prohibition It may well be that an equal remedy or alternative remedy in summary cases is an application to the justice concerned to dismiss because of the delay In the case of a trial on an indictable charge however I am not satisfied that it is correct to leave to the trial judge a discretion as to whether as it were to prohibit himself from letting the indictment go forward or whether to let the indictment go forward A person charged with an indictable offence and whose chances of a fair trial have been prejudiced by excessive delay should not be put to the risk of being arraigned and pleading before the jury emphasis added p 379 11 It is not apparent why the uncontroversial conclusion that judicial review is capable of being an appropriate remedy in cases of missing evidence or delay should necessarily lead to the conclusion that it is the exclusive remedy Furthermore the rejection by the Supreme Court of the High Court s reasoning in The State O Connell v Fawsitt relying on the capacity and indeed duty of the trial judge to guarantee the fairness of the trial is not easy to reconcile with subsequent repeated statements in this court emphasising the role of the trial judge in ensuring such fairness See for example Dunne v Director of Public Prosecutions 2002 2 I R 305 p 336 per Fennelly J and D C v Director of Public Prosecutions 2005 4 I R 281 p 283 per Denham J and indeed the judgment of Finlay C J in Daly v Director of Public Prosecutions 11th April 1994 in which he appeared to endorsed similar observations made by the High Court judge in that case as to the duty of a trial court to ensure fairness Nor is it readily apparent what logical justification there is for the distinction drawn between trials in the District Court and trials on indictment both of which are required to adhere to the constitutional standard of trial in due course of law 12 The logic of the decision in The State O Connell v Fawsitt in identifying judicial review as the exclusive remedy also leads to an unusual situation where it is sought to challenge trials occurring in the Central Criminal Court on the grounds of missing or lost evidence or indeed delay Since the basis of judicial review is the power of the High Court to exercise control over inferior courts and tribunals acting in excess of jurisdiction such review is not available in respect of decisions of the High Court itself Accordingly it has become the practice that an applicant in such a case seeks instead to prohibit the Director of Public Prosecutions from continuing with such a trial But at least from a conceptual level this seems to blur the distinction between the prosecutor and the trial court There is much to be said for the observation that prosecutors prosecute cases trial courts try cases appeal courts hear appeals and the Superior Courts have a residual power of review whether by way of prohibition in advance or certiorari afterwards and it is unhelpful to confuse those roles It is the court not the prosecutor which has the obligation and the jurisdiction to conduct the trial 13 Indeed while it is not necessarily a touchstone for the correctness of any result I consider that if the trial courts had a jurisdiction to dismiss an indictment or stay a prosecution on grounds of missing or lost evidence that could also be in the interests of all parties including potential defendants There is much to be said for a situation

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  • predecessors in the past had to do the best they can It is important therefore to emphasise that the test is not just one of a risk of an unfair trial simpliciter If it were then the test would apply equally to a case where evidence just was not available as it would to one where the evidence had not been properly sought or preserved by the investigating authorities Rather the test must be that the relevant difficulty stems not from any intrinsic unfairness in the trial as such but rather the unfairness of a person being tried in the absence of evidence which ought to be available It seems to me to be clear that the test must be characterised in that way 9 What further consequences may flow from such an analysis is a matter for further debate Should for example all cases of missing evidence be treated in the same way irrespective of the reason for the non availability of the relevant evidence and the extent of culpability that might be attributed to those involved in the investigation Or in the alternative is it necessary to weigh in the balance all of the circumstances surrounding why the evidence is missing Given that some degree of culpability in respect of the evidence being missing is a necessary ingredient of the test it is by no means beyond argument that the actual degree of that culpability may itself form part of the test However I would leave a final decision on any such matters to a case where that question might turn out to be decisive 10 As indicated earlier I agree that for the reasons advanced by MacMenamin J in his judgment this appeal can be disposed off without any definitive re examination or re appraisal of the underlying jurisprudence THE SUPREME COURT Appeal Nos 416 2008 433 2008 Denham C J Hardiman J O Donnell J Clarke J MacMenamin J Between JASON WALL Appellant Applicant and THE DIRECTOR OF PUBLIC PROSECUTIONS Respondent Judgment of Mr Justice Clarke delivered the 11th December 2013 1 I agree with the judgment about to be delivered by MacMenamin J and the order dismissing the appeal which he proposes That is sufficient to dispose of the case 2 However I also wish to indicate my agreement with the observation of O Donnell J to the effect that the jurisprudence in this area deserves as he puts it a comprehensive re examination 3 While this case can for the reasons advanced by MacMenamin J be dealt with without any such re examination and while therefore I would leave to another case where any such re examination might prove decisive a final judgment as to what the results of any such re examination should be I nonetheless would record my agreement with the analysis of the authorities both in this jurisdiction and others engaged in by O Donnell J 4 My principal purpose for adding a brief judgment of my own to those other

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  • all fours with the instant case although there are clear similarities The facts require analysis 41 In Murphy the car destroyed prior to examination was a stolen vehicle It was alleged that the accused drove it The only prosecution evidence was visual identification The applicant accepted he had been in that car Given that the vehicle was stolen the presence of the accused s fingerprints on the steering wheel obviously had a high degree of direct materiality But in itself this was not sufficient to fix the gardaí with a duty 42 A duty to obtain evidence cannot simply be imputed to the gardaí without basis What might be clear in retrospect is frequently not at all clear at the moment a decision in the investigation is made There may of course be circumstances where an omission to obtain evidence is so glaringly obvious that it is self evidently remiss not to obtain it even absent a defence request As I will now seek to explain this is not the case here on the evidence adduced in the case 43 The critical feature in Murphy is that the accused s solicitor had actually written to the gardaí well prior to the car s disposal requesting sight of any forensic examination and informing the authorities that the appellant wished to have the vehicle examined by a professional expert in the field of fingerprints The gardaí responded that the vehicle would remain available for inspection Yet six days after that communication when the relevance of that material reasonably sought had been specifically requested the car was removed and destroyed The gardaí had not carried out any forensic examination of the car 44 On these facts in Murphy Lynch J held that the gardaí had acted in contravention of natural justice on the basis of the duty that they had or as it could reasonably have been identified by them As the investigating authority they had actually been put on notice of the applicant s entirely reasonable request for a forensic examination of the car in which the accused had been travelling The car was available at the time of the request In that circumstance a forensic test was part of the reasonable parameters of investigation The prosecuting Garda Sergeant had been appraised in a timely manner of the need for these forensic tests The gardaí had been informed why these were sought The prosecution case was to be based only on visual identification evidence It cannot be said the accused dictated the investigation but rather simply identified a relevant course of enquiry in a timely manner In allowing the car to be destroyed the gardaí acted unreasonably and unfairly they prevented a forensic test to the irretrievable detriment of the accused in his defence Application of the principles 45 It might be suggested hypothetically that if the appellant had been told of Lyndsey Hudson s statement at the time it was made or soon afterwards and if he had consulted a lawyer then that lawyer might immediately have requested a fingerprint test on the steering wheel A number of points arise This case cannot be decided on the basis of what should have occurred In fact the chronology does not support this hypothesis The general request for evidential sources did not arrive until the 14th September 2006 the specific request for fingerprint analysis occurred three months later on the 21st December 2006 It will be remembered that Jason Wall was first interviewed on the 19th December 2005 and again on the 25th January 2006 The evidence does not disclose when he first went to a solicitor It is very difficult then on these facts to suggest that in this case there would have been a timely or early request for a fingerprint forensic test prior to the destruction of the car The case then takes on quite a different complexion from Murphy where the accused s solicitor had written to the gardaí and his barrister had spoken to the gardaí while the car was still in their possession There is no evidence that the elapse of time between Lyndsey Hudson s interview and Jason Wall s first interview occurred as a result of garda mala fides or misconduct or even inertia The garda witnesses were not cross examined as to why the elapse of time occurred or as to why the forensic investigators did not test the steering wheel It might be more fruitful to enquire why the delay occurred on the defence side in asking for such tests This is surely necessary on the facts of this case To what extent are the courts to be placed in the position of prescribing the nature structure and range of a garda investigation To what extent are the courts to be put in the position of deciding what avenues of investigation the gardaí should pursue In my view the court should be cautious in so prescribing This Court can only act on the evidence before it There is simply no evidence as to why that delay occurred Furthermore the fingerprint hypothesis hinges on an invitation to this Court to speculate on what the outcome of such a hypothetical forensic test might have been This is not borne out in the evidence in this case There is no evidence as to what the outcome of such a test would have been or even might have been The interesting material as to fingerprint testing contained in the dissenting judgment was not part of the appellant s case 46 To re iterate them the first specific request for fingerprint evidence of the car was made on the 21st December 2006 five months after the appellant was charged It is difficult to posit a hypothesis favourable to the appellant in light of those facts Can it then be argued that a fingerprint test would have been requested in the previous August or September I am not persuaded of this on the evidence or that a negative or inconclusive fingerprint test would have the central quality which the appellant now seeks to ascribe to it unsupported by any expert evidence 47 Obviously the term used by Lynch J in Murphy that is could reasonably be identified is relevant here What was the position in the investigation at the end of September 2005 Obviously the gardaí had not received any request for fingerprint tests on the steering wheel There were two inconsistent statements from the driver of the car the first claiming she did not know what happened the second blaming the appellant The forensic test reports laid the blame for the accident squarely on the driver There is no evidence that the gardaí at that point placed substantial credence in Lyndsey Hudson s uncorroborated allegation which on its face might appear an unusual explanation for what happened The evidence from the other passengers was at that point inconclusive but none of the passengers then blamed the appellant The appellant s case stands and falls on the basis that the gardaí should have switched the focus of the investigation on to Lyndsey Hudson s allegation about Jason Wall s actions This requires an inference not supported by evidence which might have been available Obviously the investigation subsequently developed The gardaí obviously arrived at the view that the appellant should in fact be interviewed There is no evidence how or why they did so There is no evidence either as to when they came to this view Then later again Stephen Wall s statement emerged But by then the car had long since been disposed of To my mind to impose a duty to obtain this fingerprint evidence to support a retrospective hypothesis that the appellant s fingerprints might not have been on the steering wheel is unrealistic It is not a reasonable identification of the scope of investigative duty at the relevant time that is at or before the end of September 2005 The possibility of there being such relevant evidence is raised in this appeal but no more 48 There are three other matters of significance First I do not believe that any of the authorities cited are to the effect that an applicant s good or bad character is relevant Second were it relevant it would be material to mention that in the aftermath of the accident it is said the accused was arrested by a member of An Garda Síochána for drunken aggressive behaviour at the scene He was not prosecuted Third I do not believe that any of authorities are to the effect that the nature of the penalties for offences is a relevant consideration Whether there is a penalty at all depends on whether there is a trial in accordance with law 49 I should say that I entirely agree with concerns expressed in judgments of this Court today that the gardaí conduct their investigations fully and fairly However I am unable to agree that in some sense the primary burden of proof in this judicial review lay on the respondent The issues of burden of proof and standard of proof were considered earlier in this judgment It is difficult to avoid the conclusion that many of the differences between the majority and minority judgments arise because of the manner in which the term clear case is interpreted and in the approach to the burden and standard of proof in these cases In the dissenting judgment herein it is said quite accurately that certain matters were in the exclusive knowledge of the gardaí This is true but this does not alter the fact that the civil standard of proof applies and that the onus is on the appellant to persuade a court in accordance with this standard 50 To what extent is it legitimate to draw inferences To my mind the answer lies in the nature of the case This is a judicial review case brought by the appellant as applicant The civil standard of proof applies Lyndsey Hudson was interviewed under caution This would suggest she was a suspect at that time This is supported by the forensic reports at the time Jason Wall was interviewed in December 2005 and January 2006 He was by then under suspicion The burden of proof lies on the appellant He was advised by highly experienced counsel and solicitors It may therefore be seen as a given that the choices made in the case were deliberate choices It was open to the appellant to serve a notice to cross examine on the garda deponent That garda witness could have been questioned as to what precisely was the investigators state of mind in August September 2005 He could have been asked when precisely the gardaí formed views as to Jason Wall s involvement in the events The evidence did not demonstrate that they had formed any such view on this point in August September 2005 If it had the position could be different The choice here is in no sense a Catch 22 it was fundamental to the appellant s case to establish when a duty arose This is for the appellant to establish on the basis of probability The public interest 51 I move to a different point The issue in this appeal is the fairness and propriety of the garda investigation into a tragic accident There is a strong public interest in ascertaining what occurred and whether the late Emma Wall s death resulted from a criminal act This in no way derogates from the fact that at trial the obligation on the prosecution is to prove the case against the appellant beyond reasonable doubt Article 38 of the Constitution identifies the mechanism adopted by the people for ascertaining guilt or innocence that is a trial in due course of law where the trial judge will be the arbiter of constitutional fairness 52 This case is in no way comparable with that of Captain Dreyfus or the Guilford Four The issue here is rather what happened to cause this as yet unexplained road traffic collision There is no evidence here of a State cover up or a frame up of false invented testimony which cannot be verified or biased expert evidence on handwriting or a State vendetta against an accused or suppression of evidence or gross scientific misconduct or negligence in the obtaining or maintaining of DNA samples There is no evidence either of any affirmative acts by the police taken with the intention or effect of denying a fair trial to an accused There is simply an elapse of time until Jason Wall s first interview on the 19th December 2005 53 I am not persuaded therefore this case is comparable with Youngblood v Arizona 488 U S 51 1988 where the absence of forensic evidence through clear police neglect in storing clothing meant that the identification evidence given by that young victim of a vicious sexual assault could not be successfully challenged as a result of which the jury convicted DNA evidence carried out to an appropriate level would have exculpated the accused who was the victim of a serious miscarriage of justice These cases are highly relevant as reminders of the duty of investigators but they are to my mind immaterial to the issue here which is whether or not the gardaí should have carried out a fingerprint test on the steering wheel of this car There are no issues of identification in this case per contra Murphy or Youngblood What is at issue is what precisely caused this collision and whether seen objectively the gardaí should have carried out a fingerprint test in August or September 2005 54 Insofar as it might have been suggested that there was an additional duty on the gardaí to carry out a fingerprint test on the radio dial I am unable to agree there was such a duty A perusal of the appellant s written submissions confines the case to the absence of a fingerprint test on the steering wheel I did not understand the case to be in any way broadened in oral submissions to this Court I do not think it admissible to take into account matters which were extraneous to the case as it was put before this Court in oral and written submissions 55 The decided case law focuses very clearly on the duty of the gardaí towards a person who is under active investigation frequently a person who has already been arrested or charged That was the position in Murphy There is no evidence that Jason Wall was at the relevant time period such a person or as to the extent to which he was a suspect That relevant time period is when the Honda car was available The issue here is not whether there is anything retrospective about the fingerprint hypothesis but precisely because it is a hypothesis or a possibility Such characterisations are entirely appropriate where the difference lies is whether such hypothesis or possibility could give rise to a duty in circumstances where there is no evidence other than Lindsay Hudson s statement as to the state of knowledge or even as to the opinions of the investigating gardaí at the time the evidence became unavailable In Murphy there was a far closer relationship of proximity in that the accused had been arrested charged and was legally represented had already been before the courts and vitally the request for fingerprint tests had been made 56 I am unable either to agree with a suggestion that this is a lost evidence case To so characterise it in my view does no justice to the English language It is a matter of first impression What is the main point in the case The immediate answer is the right answer It is the appellant s contention that the gardaí should have carried out a fingerprint test in August September 2005 I find it extremely difficult to understand how this can be described therefore as a lost evidence case It is more comfortably classified as a case where the gardaí allegedly failed to seek out or obtain evidence To characterise it otherwise is to my mind to mischaracterise it 57 To assert a particular form of duty it is necessary to establish clearly the parameters of that duty in the first place What are the focal points and the range of the duty They are not limitless With these rhetorical questions in mind I find that what was being proposed by the appellant was in fact a retrospective duty that is one where the case advanced is based on what occurred some months afterwards from when Jason Wall was first interviewed on the 19th December 2005 and thereafter Had the evidence established that Jason Wall was in a position where the gardaí owed a duty to him in August September 2005 or that timely requests for forensic tests would have been made this would have been quite a different case The very fact that these divergences of interpretation have emerged I think reinforces the case for a review of this jurisprudence Duties of An Garda Síochána 58 I would not wish any of these last observations to detract from the vital importance of maintaining the integrity of criminal investigation procedures The experience in our State and others demonstrates the need for public trust That trust where necessary must be reinforced by judicial verification If garda standards are not maintained public and jury confidence in garda testimony is undermined not just in one case but in all cases It is not sufficient to merely say that this consideration is a matter of merely public interest the point is of such importance so as to say that the public have a right to ensure that investigative standards of fullness and fairness are maintained Decision 59 For the reasons given I would dismiss the appeal In so doing I wish to express my agreement with the judgments delivered by Denham C J O Donnell J and Clarke J on the issue Costs 60 The respondent has brought a notice to vary in relation to the High Court judge s order not to award costs to either side That issue remains to be addressed and the parties will be given an opportunity to address the court on it THE SUPREME COURT Judicial Review 2013 IESC 56 Appeal No 416 2008 433 2008 Denham C J Hardiman J O Donnell J Clarke J MacMenamin J Between Jason Wall Appellant Applicant and The Director of Public Prosecutions Respondent Judgment of Mr Justice MacMenamin delivered the 11th day of December 2013 Introduction 1 It is by now well established that the onus rests on an accused who seeks judicial review to prohibit a trial to prove that circumstances exist which give rise to a real risk that the accused would not receive a fair trial which cannot be avoided by appropriate rulings and directions on the part of the trial judge see Z v Director of Public Prosecutions 1994 2 I R 476 and D v Director of Public Prosecutions 1994 2 I R 405 The risk must be a real one and the unfairness of the trial must be unavoidable It is well settled too that there is a duty on the gardaí to obtain and to keep track of items of real evidence relevant to the case McFarlane v Director of Public Prosecutions 2007 1 I R 134 This judgment concerns the former situation it hinges on what is claimed to be unobtained evidence It is said here the gardaí should have obtained this evidence at or before a defined point in the course of that investigation It is contended that the failure then to obtain such evidence now gives rise to a real risk of an unfair trial The issues in the case are whether the appellant Mr Jason Wall can establish that there is in fact a real risk of an unfair trial and whether that risk derives from a failure in duty by the investigating gardaí 2 On the 13th November 2008 the High Court O Keeffe J dismissed the appellant s application for judicial review seeking prohibition of criminal proceedings against him The appellant sought to restrain any further prosecution of the two counts on an indictment wherein he is charged with endangerment contrary to s 13 of the Non Fatal Offences Against the Person Act 1997 and the unlawful seizure of a vehicle contrary to s 10 of the Criminal Law Jurisdiction Act 1976 Both counts arise from the same incident a fatal traffic accident which occurred on the night of the 14th August 2005 It is said the appellant while a back seat passenger in a car leaned forward and seized the steering wheel of that car thereby causing the accident in which another young passenger was killed Prohibition is sought on the basis of the unavailability of evidence namely the absence of any garda forensic tests for fingerprints on the steering wheel of the car in which the group were travelling It is said evidence of a forensic test showing the absence of fingerprints on the steering wheel would have served to rebut the prosecution case which is now based on the oral evidence of two of the other passengers in the car both of whom will allegedly say that the appellant acted in the manner described thereby causing the fatal collision The general background 3 The case involves a group of young people on a night out which ended tragically At an earlier point in the evening the group was apparently comprised only of the appellant together with Lyndsey Hudson Ciara Brack and the late Emma Wall They started socialising in Emma Wall s house and then went to a local public house At some point the appellant s cousin Stephen Wall joined them They all decided to move on to Shankill to see friends They were travelling in a Honda Civic car owned and driven by Lyndsey Hudson then Jason Wall s girlfriend They had intended to buy chips in Sallynoggin but the chip shop was shut They went on towards Killiney There is no dispute that the appellant was a backseat passenger in the car There were two other rear seat passengers Stephen Wall and Ciara Brack Emma Wall the appellant s cousin was in the front passenger seat When the car came to Church Road in Ballybrack it is said that as a result of the appellant s actions the car veered suddenly over to the incorrect side of the road and collided with an oncoming car driven by a Mr Patrick Foley Emma Wall sustained very serious injuries in the accident which caused her death The sequence of events in the investigation is highly relevant to this case and must be set out There first follows a general outline of that investigation Certain aspects of it are then covered in more detail How the investigation progressed 4 At the outset the primary focus of the garda inquiry was as to why the car allegedly veered over to the wrong side of the road Two natural questions addressed were first whether it was the fault of the driver herself or second whether some mechanical defect in the car caused it to behave as it did But within days Ms Hudson the driver sought to explain the accident by putting the blame on the appellant On the 18th August 2005 four days after the accident she made a cautioned statement saying Jason Wall interfered with the steering wheel However forensic mechanical tests on the two cars carried out within 10 days of the accident put the blame on Lyndsey Hudson herself and ruled out any mechanical failure Investigations continued for some months before the appellant was first interviewed by An Garda Síochána on the 19th December 2005 He was interviewed again on the 25th January 2006 when with his consent his fingerprints were taken On the 13th July 2006 the appellant was charged On the 8th September 2006 the District Court returned him for trial in the Circuit Criminal Court 5 On the 14th September 2006 the appellant s solicitor wrote to the Chief Prosecuting Solicitor The letter in a form now usual in indictable offences requested all relevant witness statements particulars of convictions on the part of witnesses to the collision and details of any evidential sources such as physical evidence and copies of any CCTV footage A general request for fingerprint analysis of the car was made separately three months later on the 21st December 2006 At that point the defence asked whether the cars involved were available for inspection Subsequent correspondence established that no fingerprint tests had been carried out on the steering wheel 6 On the 6th March 2007 nine months after the appellant was charged his solicitor wrote to the prosecution authorities stating that he had the clearest instructions from his client that he did not grab pull or in any way interfere with the steering wheel of the car on the night in question and was not responsible for the accident This letter mooted the possibility of judicial review proceedings owing to the indications from the prosecution regarding unavailable forensic evidence from the cars Junior counsel acting for the appellant was specifically advised orally on the 26th March 2007 that the cars in particular Lyndsey Hudson s car were no longer available for inspection or testing 7 No criticism can be laid at the appellant s door simply on the basis of the elapse of time between the critical events and the subsequent requests for tests In the appeal counsel for the Director accepted that culpable delay on the appellant s part is not an issue in this case in light of the fact that by the time the question of the appellant s involvement was first directly put to him on the 19th December 2005 both cars had previously been destroyed The indications are that both cars were destroyed approximately 11 weeks earlier by the end of September 2005 This end date is borne out by correspondence from the firm which disposed of and destroyed the cars which is dated the 29th December 2005 This dates the time of disposal or destruction of the car as being in late August or September 2005 This disposal occurred after Lyndsey Hudson s cautioned statement of the 18th August 2005 but also after witness statements from the passengers saying they remembered little and the garda forensic investigators reports to the effect that Ms Hudson must have been responsible for the fatal accident It is not entirely insignificant however that the first specific request for a forensic test specifically referring to the car s steering wheel only came on the 21st December 2006 by then a full year after the appellant s first interview 8 There is no evidence as to when exactly the appellant himself actually became aware that Lyndsey Hudson was blaming him for what happened nor as to when he first contacted a solicitor At his second interview in January 2006 he denied that he had any recollection of the accident The appellant Lyndsey Hudson Stephen Wall and Ciara Brack all apparently attended Emma Wall s funeral The appellant denied any contact with the other passengers at the ceremony Aspects of the investigation a The passengers statements to witnesses at the scene and later to An Garda Síochána 9 On the night of the accident Lyndsey Hudson is said to have told a civilian witness at the scene that she did not know what had caused the car to veer to the wrong side of the road However her later cautioned statement to members of An Garda Síochána obviously diverges from this 10 In that later cautioned statement of the 18th August 2005 she is recorded as alleging that as she drove on to Church Road Jason Wall in her words leaned through the two front seats He turned up the radio She continued I think I said what are you doing He didn t answer He suddenly grabbed the steering wheel and pushed it to the right to the other side of the road She is recorded as saying that she tried to turn the car back on the proper side of the road and then I seen the other car coming for me and it smacked into us 11 In her second cautioned interview on the 8th January 2006 Ms Hudson stated that at one stage she and Jason Wall had been shouting at each other in the car The appellant s own account was that by the time they were in the car there was no argument and as will be seen later he denies that any actions of his caused the accident 12 When brought to St Vincent s Hospital after the accident Ms Hudson was found to be alert and orientated but claimed she had a hazy recollection of the details of the accident She said later she had had just two drinks on that evening She held only a provisional driving licence at the time 13 Of the other surviving passengers in the car one Ciara Brack told the gardaí she remembered nothing between the beginning of the journey and waking up in hospital later On the 30th August 2005 the other passenger Stephen Wall made two cautioned statements One of these has him saying I don t remember anything from the night In the other he gave some other details of what he said happened on the night but regarding the accident itself he simply said I can remember lights coming towards us and snapping back out of it outside the car Clearly at that point he did not seek to attribute any blame to the appellant But some months later on the 7th February 2006 Stephen Wall was again interviewed By then he was detained in Mountjoy Prison for matters unconnected with these events The precise circumstances of this interview have not been described Then he is said to have told the gardaí that the appellant had reached for the steering wheel and he moved the wheel I reckon he moved it with his right hand Only this statement was contained in the book of evidence his earlier statements were not included and were only made available in disclosure b The forensic examination of the accident scene and the cars 14 On the 14th August 2005 the night of the accident Sergeant Finn a trained forensic collision investigator examined the scene The cars were then taken to a disposal yard On the 17th August 2005 a Public Service Inspector Garda McCallion examined both cars at the yard He reported the 1995 Honda Civic had been extensively damaged On the 23rd August 2005 Sergeant Finn again examined the cars He drew a number of inferences in his report He found no mechanical defects in either vehicle that could have contributed to the collision In his view the primary cause of the accident lay with Lyndsey Hudson the Honda driver as she had failed to keep her vehicle on its correct side of the road He stated there was no evidence that either driver was travelling at excessive speed There is no indication in these reports that either of those forensic examiners was aware that Lyndsey Hudson had already told other members of An Garda Síochána that the appellant was to blame or how she claimed the accident happened c Possible unavailability of other evidence 15 There are indications that the other driver Patrick Foley may not be available for the prosecution He cannot be traced His car does not appear to have been insured He appears to have given a false address to the gardaí As a consequence of this it is said that Sergeant Finn s evidence eliminating speed as a factor may go uncontroverted But in fact the appellant does not make a case that the car in which he was travelling was being driven too fast nor does he say that to his own knowledge the car might have been mechanically unsafe These matters cannot be seen as true prejudice The question of what precisely happened and why remains open and would have to be proved by the prosecution beyond a reasonable doubt at trial 16 It is said too that Lyndsey Hudson was not significantly injured after the accident therefore there was no reason why she should not have been breathalysed As a result of this it is said there is additional prejudice Little emphasis was laid on this point either There is no indication in this appeal that Ms Hudson was drunk or incapable or that any such incapacity on her part caused the accident d Where were the back seat passengers situated 17 Where precisely the appellant is said to have been sitting in rear seat is not entirely clear Most of the witness statements would appear to place him behind the front passenger seat Lyndsey Hudson recounts that the appellant leaned through the gap between the front seats This ambiguous statement might be taken as suggesting that the appellant was the centre of the three back seat passengers Stephen Wall who was also in the back said that the appellant leaned over the passenger chair But in fact when Stephen Wall was questioned immediately after the accident he said he himself was sitting in the middle of the Honda s rear seat On the 30th August 2005 he repeated this part of his account placing Ciara Brack behind the driver and the appellant behind the passenger seat Ciara Brack told the gardaí that as far as she could remember the appellant was sitting behind the passenger seat e Examination of a similar steering wheel 18 The prosecution apparently sought to address the issue of fingerprint testing when it was first raised When the matter came before the Circuit Court for mention the question of fingerprint tests was canvassed The prosecution indicated then that in order to check whether there could have been fingerprints tests would be carried out on a steering wheel similar to that in the crashed Honda Civic The Director has not furnished any further information to the defence on this question although it should be noted the suggestion for such a test actually emanated from the prosecution itself No issue was raised in this appeal on the absence of fingerprint tests upon any other point of the front passenger compartment of the car such as the radio dial As was accepted in argument this case centres on the absence of forensic tests on the steering wheel No explanation has been offered for the absence of any result from these tests which were apparently to be carried out f The circumstances at the time the cars were disposed of 19 There are however other factual matters which are critical They derive from the fact that although the appellant was first interviewed on the 19th December 2005 he was not charged until the 13th July 2006 Obviously therefore this is not a case where the gardaí were directly put on notice of any requirement for a forensic fingerprint examination within days of the event giving rise to the prosecution The appellant s legal advisers do not say they were misled or misinformed as to the ongoing availability of the car for independent tests This is not a situation where a member of An Garda Síochána allowed a disposal or destruction of the car whilst knowing that a request for forensic examination of the car had been made by the appellant s solicitor These are matters of considerable significance as for reasons outlined later in this judgment they distinguish the facts of this case in a very significant way from Director of Public Prosecutions v Murphy 1989 I L R M 71 Submissions of the appellant 20 In this appeal counsel for the appellant makes the point

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  • permissible for a judge to approach the matter by analysing each of those causes If he ranked those ranks in terms of probability and concluded that one was more probable than the others then provided those were the only three possible causes he was entitled to conclude that the one he considered most probable was the probable cause of the event provided it was not improbable 7 5 Sir Arthur Conan Doyle was not of course commenting on legal proof The maxim which he put in the mouth of Sherlock Holmes was not intended as a formal means of legal analysis There may well be as Lord Brandon pointed out in the Popi M circumstances where the level of evidence concerning how some event occurred or what caused it maybe insufficient to allow any legally sustainable conclusion to be reached so that the case will in those circumstances turn on the question as to which party bore the burden of proof 7 6 However it is also necessary to note the second point made by Lord Brandon There may be circumstances where the dictum of Sherlock Holmes is applicable As pointed out in the subsequent cases cited an analysis of the relevant circumstances may reveal that there are as a matter of logic only a small number of possibilities An analysis of those possibilities may demonstrate that an explanation which might in advance have appeared to be intrinsically improbable has in fact become probable or even very probable It is important in that context to distinguish between how one might have viewed a situation in advance and how one views the same event after the event in the light of the available evidence concerning what might have occurred 7 7 Thus a proper analysis of the overall situation may lead the Court to conclude that there are for example only two possible explanations as to the manner in which an event occurred Neither of the possibilities might before the event have seemed likely to provide an explanation for a possible future event which itself might seem unlikely to occur However if the event did in fact occur then one or other explanation however unlikely same might have appeared in advance must be true In that context one of the possible explanations may appear on the evidence to be more probable than the other Such an approach seems to me to accord with a proper evidence based approach coupled with logic and may lead a court to properly conclude that an event which might in advance have seemed unlikely to occur in a particular manner has as a matter of probability actually occurred in that manner Counsel for John Deere made the point correctly so far as it goes that the trial judge came to the view that she was satisfied to a high degree that the facts were as she found them This it was argued was inconsistent with a least improbable approach However for the reasons I have sought to analyse there is no reason in principle why given that a potentially improbable event did in fact occur an explanation which in advance might have been seemed unlikely becomes in fact probable or even highly probable 7 8 On the facts of this case it could well be said that in advance it would have seemed improbable that the paddles could move without the engine being engaged However the fact is that there was overwhelming evidence that the paddles did move There was also evidence which made it appear improbable that Mr Scollard s injuries could have been suffered in the way in which they were if in fact those injuries happened while the engine was engaged 7 9 Thus the trial judge was faced with choosing as a matter of probability between two eventualities One or other of those eventualities must have occurred for the engine either was or was not engaged Therefore the accident undoubtedly occurred in a way which might have in advance appeared to be unlikely The accident either occurred because improbable as it might have seemed in advance the paddles moved without the engine being engaged or alternatively the accident occurred again improbable as it might have seemed in advance in a way which somehow caused contrary to the medical evidence Mr Scollard to suffer injuries which seem incompatible with an injury caused by engaged paddles The trial judge was therefore faced with a choice between two eventualities which without the benefit of hindsight might have appeared improbable but where as a matter of near certainty one or other eventuality did in fact occur Based on that analysis I am more than satisfied that the findings reached by the trial judge were within the range of findings of fact open to her on the evidence and are more than sustainable 7 10 That the trial judge was placed in a difficult position because of the unsatisfactory way in which the expert engineering evidence was presented cannot be doubted However the findings of fact of the trial judge can in accordance with Hay v O Grady 1992 1 I R 210 only be disturbed if there was no evidential basis for them or if the reasoning of the trial judge in reaching those conclusions of fact does not stand up It is important to recall that Hay v O Grady is concerned specifically with the assessment of the facts by a trial judge where the trial judge is required either to weigh conflicting evidence or assess the credibility or reliability of testimony It is also clear that findings of fact can be disturbed where there is a material and significant error in the assessment of the evidence or a failure to engage with a significant element of the evidence put forward see for example Doyle v Banville 2012 IESC 25 7 11 In this case there clearly was evidence on which the trial judge could make the findings of fact which she did That evidence was the eye witness accounts of the various witnesses who were present The trial judge had of course to assess that evidence by reference amongst other things to the expert testimony which attempted to provide explanation as to how the accident might have occurred There may well be cases where therefore notwithstanding the availability of eye witness accounts there is no sustainable basis on which that eye witness evidence could be accepted given uncontroverted scientific evidence to that effect that it could not be correct However this is not such a case Whatever about the engineering evidence and the unsatisfactory way in which that evidence ran has already been commented on here the expert medical evidence touching on how the accident might have occurred also had to be taken into account 7 12 It was not in my view necessary for the trial judge to reach a definitive conclusion as to just how the paddles might have moved without the engine being engaged If the only expert evidence pointed to the fact that the paddles could not have moved without the engine being engaged then the situation might be different However for the reasons already analysed that was not the case not least because of the medical evidence as to the consistency or otherwise of the injuries sustained with paddles moving under the force of an engaged engine On that basis it seems to me that the trial judge s underlying finding that the paddles did in fact move even though not engaged with the engine was based on evidence which entitled the trial judge to come to that conclusion was not rendered unsustainable by any failure to address adequately expert testimony and can not be said to have been vitiated by any failure to adequately deal with all of the evidence 7 13 For those reasons I would reject the ground of appeal put forward on behalf of John Deere which challenges the findings of fact by the trial judge as to how the accident actually occurred In order to consider the second limb of John Deere s appeal which is based on the trial judge s finding on foreseeability it is necessary to address the precise basis on which the trial judge found John Deere to be liable 8 The Findings of Defect 8 1 Having considered all the expert evidence on design Irvine J concluded that the location of the blower box in such close proximity to the inspection hatch constituted a danger zone within the meaning of Regulation 18 of S I 44 of 1993 and as a result the combine harvester was not fit for purpose within the meaning of the Sale of Goods and Supply of Services Act 1980 The proximity of these components meant that Any operative accessing this inspection hatch had no view of the area into which he was placing his hand The operative was obliged to place his hand into an aperture two inches from paddles which were capable of trapping and amputating his fingers The blades and paddles can be moved albeit in the absence of a blockage with 5 to 6kgs of force 8 2 She explained her reasons for these conclusions as follows There was no purposeful reason for the hatch being placed so close to the blower box as its purpose was to allow for the clearance of grass within the chute rather than within the blower box If it was the manufacturers belief that it was necessary to have the chute as close as it was to the blower box and this is clearly not so having regard to the fact that the design has been altered in subsequent models a locking mechanism was necessary so as to allow the operative who accessed this chute ensure that nobody or nothing could physically cause the paddles to move when they were accessing the blower box The court accepts the engineering evidence proffered by the defendants that either a manual locking device which could be engaged by the operative wishing to work on the chute or a mechanical electrical device which would ensure that the blower box could not be operated whilst the access panel was removed would have obviated such a danger to worker such as Mr Scollard The court accepts the evidence of Mr Foy that such devices exist on other agricultural machinery The court further concludes that there was nothing to preclude the harvester being designed in such a fashion so as to ensure that the inspection hatch was sufficiently far removed from the blower box so as to make it impossible for a workers fingers inadvertently to reach the paddles where they might become trapped in the event of any unanticipated movement thereof However if there was the onus was on the manufacturer to provide a system whereby the paddles could not be moved if the guard to the inspection hatch was removed 8 3 It should be noted that the case made on the pleadings in these proceedings was based on an allegation of negligence rather than any claim said to derive from the Liability for Defective Products Act 1991 The finding of the trial judge was therefore in substance that there was negligence on the part of the John Deere in designing manufacturing and selling a combine harvester which failed either to place the inspection hatch sufficiently far from the blower box so as to make it impossible for a worker s hand to be in a position where it could be injured by an unanticipated movement of the paddles or alternatively if contrary to the trial judge s finding such repositioning of the hatch were not possible by not including a failsafe method whereby the paddles would be locked in the event that the hatch was open It is in the context of that finding of negligence that the question of foreseeability must be addressed 9 Foreseeability 9 1 The case made by counsel on behalf of John Deere was simply put Emphasis was placed on the fact that there never had it would appear been a recorded accident involving a combine harvester of the type in question which appeared to have occurred as a result of the paddles moving while the engine was not engaged On that basis it was argued that even if the court were persuaded that the trial judge s findings as to how the accident actually occurred were sustained it was not foreseeable that an accident of that type could have occurred It was further argued that where there is a duty to exercise care reasonable care must be taken to avoid acts or omissions but only those which can be reasonably foreseen to be likely to cause physical injury to persons or property 9 2 It is clear that the degree of care required can depend on the surrounding circumstances and may vary according to the amount of the risk to be encountered and to the magnitude of any prospective injury See for example Paris v Stepney Borough Council 1951 A C 367 where the House of Lords did not accept the dictum of Asquith L J in the Court of Appeal in the same case where he said that a greater risk of injury is not the same thing as a risk of greater injury the first alone is relevant to liability 9 3 To similar effect in O Byrne v Gloucester Unreported Supreme Court 3rd November 1988 Finlay C J said Having regard to the nature of the risk involved in this particular dangerous aspect of this material namely major physical injury to the wearer which was a danger foreseeable by the defendants and having regard to the simplicity of the precaution which it is alleged the defendants should have taken namely the attaching to the garment of a simple warning that it was dangerous if exposed to a naked flame and would burn rapidly this was a precaution which a reasonably careful manufacturer and vendor of this type of clothing should have taken 9 4 It seems to me clear that there was a real risk of serious personal injury in a case such as this thus giving rise to a greater obligation on a manufacturer to take precautions In that context the general principles identified in cases such as Cullen Bros Dublin Ltd v Scaffolding Ltd 1959 I R 245 and Hughes v Ballinahinch Gas Co 1898 33 ILTR 74 are apposite Likewise the simplicity of the precautions be they placing the hatch in a different position or including a locking mechanism is a further factor to be taken into account on the authority of O Byrne v Gloucester Foreseeability must of course therefore be seen against that background 9 5 On the facts of this case it was clear that all of the moving parts of the machine were connected so that anything causing one moving part of the machine to actually move was likely to lead to some movement or risk of movement in any of the other connected parts It seems to me that the proper basis for analysis of the question of foreseeability is not to determine whether the particular reason for movement in the absence of the engine being engaged that actually occurred in this case was in itself directly foreseeable but rather whether it was foreseeable that there might for whatever reason be some movement unconnected with the engine in any part of the mechanism with which the paddles were connected which was sufficient to cause injury 9 6 As pointed out it is clear from the findings of fact of the trial judge that the location of the opening designed to facilitate the clearance of blockages did not have to be where it was Evidence was given of other similar machines where the opening was in a different and safer location It follows that the placement of the opening at the location where it was exposed on the facts of this case any operator to a risk of significant injury in the event that a sufficient movement caused in any way occurred to the mechanism with which the paddles were connected without the engine being engaged but while the operator was attempting to clear a blockage Given that the mechanism was not in any way locked so as to prevent movement when the engine was disengaged and that the trial judge found that 5 or 6 kgs of force would be sufficient to give rise to a material degree of movement it seems to me that it was foreseeable that for whatever reason such movement might occur On that basis it was foreseeable that locating the opening where it in fact was exposed operators to an unnecessary and avoidable risk of significant injury 9 7 In those circumstances it seems to me that the trial judge was correct in concluding that John Deere was negligent and that an injury of the type suffered by Mr Scollard was a foreseeable consequence of such negligence 10 Conclusions 10 1 For the reasons I have sought to analyse I am therefore satisfied that this Court should not disturb the findings of the trial judge as to how this accident in fact occurred On that basis the finding of the trial judge to the effect that the accident occurred while the engine was disengaged must be upheld 10 2 In the light of that conclusion there could be no causative connection between any of the matters which it was argued should have led to a finding of contributory negligence on the part of the Wrights and the injury suffered by Mr Scollard so that the claim in contributory negligence must be rejected and the trial judge s findings in that regard also upheld 10 3 Finally for the reasons set out in this judgment I am satisfied that locating the opening designed for the clearance of blockages where it was created a foreseeable risk of significant injury such that it amounted to negligence on the part of John Deere so to design and sell the combine harvester which is the subject of these proceedings 10 4 On that basis I would dismiss the appeal of John Deere and affirm the order of the trial judge THE SUPREME COURT Appeal No 66 2008 McKechnie J Clarke J MacMenamin J Between Thomas Wright and William Wright Plaintiffs Respondents and AIB Finance Leasing and Geary s Garage Limited Defendants Respondents and John Deere Limited Third Party Appellant Judgment of Mr Justice Clarke delivered the 11th December 2013 1 Introduction 1 1 Accidents can and do happen in unusual circumstances and in unusual ways The evidence which a court may have to assess in attempting to work out how as a matter of probability a particular accident occurred can range from eye witness accounts to scientific or forensic evidence which may cast some light on the circumstances surrounding the accident in question Even when the court has become satisfied as to how an accident did in fact occur there may well remain legal questions as to how the possible liability of any relevant parties for such an accident is to be assessed This case involves an accident which I think it is fair to say occurred in somewhat unusual circumstances and where the trial court was faced with a difficult task not just in attempting to ascertain how the accident occurred but also in considering the legal consequences of any such findings This appeal is concerned with an assertion that the trial judge was in error both in the way in which she assessed the facts and in the way in which the law was applied to those facts 1 2 The incident which gave rise to these proceedings involved a serious injury to a Mr Denis Scollard Mr Scollard was an employee of the plaintiffs respondents the Wrights His injuries occurred while he was attempting to clear a blockage in a combine harvester The Wrights compromised proceedings brought by Mr Scollard in the sum of IR 375 000 for damages together with costs ultimately measured in the sum of IR 53 829 70 In addition the Wrights incurred costs of IR 40 592 80 in dealing with Mr Scollard s claim On that basis the whole exercise of dealing with Mr Scollard s claim cost the Wrights IR 469 422 50 The Wrights commenced these proceedings against the first named defendant AIB Finance in its capacity as the party who had leased the harvester in question to them and as against the second named defendant Geary s as the supplier of same The Wrights contended that the machine was defective in a way which caused or contributed to the injuries of Mr Scollard and that therefore both defendants were liable to indemnify or alternatively made a contribution towards the cost of dealing with Mr Scollard s claim 1 3 In turn Geary s successfully applied to have the third party appellant John Deere joined as a third party in the capacity of the manufacturer or supplier of the harvester in question The trials both of the action between the Wrights and Geary s who in substance it would appear dealt with the case both on their own behalf and on behalf of AIB Finance and of the third party issue between Geary s and John Deere were conducted together before the High Court Irvine J over a period of eight days Thereafter each of the parties submitted written argument leading to a reserved judgment of Irvine J on the 5th December 2007 Wright and Anor v AIB Finance and Leasing Ltd and Ors 2007 IEHC 409 For the reasons set out in her judgment Irvine J concluded that there was a breach of contract on the part of AIB Finance and Geary s such that entitled the Wrights to recover the full sums claimed together with significant interest which had accrued in the intervening period Irvine J rejected an allegation of contributory negligence against the Wrights In addition the trial judge concluded that the harvester in question was subject to a defective design thus entitling AIB Finance and Geary s to a complete indemnity against John Deere 1 4 In those events therefore the entire cost of dealing with Mr Scollard s claim was found to fall on John Deere It is against that finding that John Deere appeals to this Court 1 5 In order to understand the issues with which this Court was concerned it is necessary to set out in brief outline the way in which counsel for John Deere approached the appeal 2 John Deere s Appeal 2 1 In general terms counsel raised three issues on the appeal It should be recorded that no other grounds were advanced at the oral hearing and this judgment is therefore directed solely to those issues 2 2 First counsel while acknowledging the limited basis on which it is appropriate for this Court to revisit the facts as found by the trial judge nonetheless asserted that the findings of fact as to how the accident to Mr Scollard actually occurred were not as a matter of law sustainable 2 3 Second counsel asserted that even if the findings of fact of the trial judge were upheld the trial judge was it was said in error in concluding that the injuries suffered by Mr Scollard were a foreseeable consequence of any wrongdoing that might thus be established against John Deere 2 4 Third it was argued that in the light of certain findings made by the trial judge concerning the failure on the part of the Wrights to give any instructions to Mr Scollard in relation to the manner in which he should carry out his duties with particular reference to how to deal with the question of blockages the trial judge was it was argued incorrect in failing to find the Wrights guilty of some degree of contributory negligence 2 5 It is possible to deal with the final point raised very briefly While it will be necessary to address the findings of fact of the trial judge in due course it is I think fair to summarise those findings as being to the effect that Mr Scollard had disengaged the engine of the combine harvester from its moving parts prior to embarking on the operation of trying to clear a blockage In those circumstances the trial judge went on to conclude that the paddles of the harvester had for reasons which it will be necessary to consider in some detail moved thus causing a serious injury to Mr Scollard If that finding of fact is sustained then it is difficult to see how any failure on the part of the Wrights to give Mr Scollard adequate instructions on disengaging the engine prior to attempting to clear any blockage could have had a material contribution to this accident It should be noted that the trial judge placed reliance on the fact that there was nothing in the manuals supplied or instructions given generally to the Wrights which concerned how blockages should be cleared or which suggested that there was any possibility that the relevant paddles could move even if the engine was disengaged On the basis of her findings of fact and assuming those findings are sustained it is impossible to disagree with the conclusion of the trial judge that while the Wrights were technically negligent such negligence had had no causative effect on the occurrence of Mr Scollard s injuries 2 6 Obviously John Deere contest the findings of fact which underlie that determination on the absence of contributory negligence It will be necessary to turn shortly to the facts However unless John Deere succeed in establishing that the relevant findings of fact cannot be sustained then it does not seem to me that the question of contributory negligence arises as a separate heading of appeal for on the basis of the facts as found by the trial judge the conclusion of no causative effect necessarily follows For those reasons the contributory negligence issue is not really a stand alone issue but rather is one which arises only if the findings of fact can be disturbed In fairness I did not understand counsel for John Deere while not abandoning the point to strongly press the question of contributory negligence as a stand alone ground of appeal for that very reason 2 7 Finally it does seem to me to be important to emphasise that while there are undoubtedly connections between the two points there is a difference between the issues which arise on the question of how the accident actually occurred on the one hand and the issues which arise in relation to foreseeability on the other The question of fact depends on whether the Wrights and AIB Finance and Geary s had discharged the respective onus of proof which undoubtedly lay on them to show how the accident occurred and whether the trial judge s assessment of the evidence permitted her to come to a sustainable conclusion on the facts in the way in which she did The issues which arise in relation to the findings of the trial judge on the facts are concerned therefore with the onus of proof the evidence and the trial judge s assessment of that evidence Those issues must of course be viewed against the backdrop of the limited basis on which an appeal court can seek to interfere with findings of fact of the trial judge 2 8 Assuming that any findings of fact of the trial judge are sustained then the question of foreseeability involves a purely legal question as to whether the test of foreseeability is met on the facts as found 2 9 Against the background of those issues it is perhaps appropriate to start with an account of the uncontroversial facts of this case passing over for the moment while identifying them the areas in respect of which there was conflict 3 The Uncontroversial Facts 3 1 The Wrights are agricultural contractors and were engaged as such in collecting silage in Co Limerick in the summer of 1995 At the relevant time Mr Scollard was 22 years of age and had been employed by the Wrights for about four years The harvester which Mr Scollard was using was manufactured by John Deere and bears Model No 6810 It had been the subject of a trade in of a previous John Deere Harvester for a more powerful model being the 6810 the previous year with the new harvester being supplied by Geary s by means of a leasing arrangement with AIB Finance to whom Geary s sold the harvester to enable AIB Finance to lease it to the Wrights 3 2 It is of some relevance to the way in which the case ran in the High Court to note that the Wrights obtained with the harvester a manual running to some 400 or so pages but including a one page summary which made clear at point no 14 that work should not be done on the machine while the engine was running or if someone was in the cab It was clear on the evidence and found by the trial judge that blockages within the harvester were a regular feature which required clearing out It was in the course of attempting to clear such a blockage that Mr Scollard unfortunately suffered his significant injuries 3 3 As pointed out Mr Scollard commenced proceedings against the Wrights Record No 1995 No 8526P which were compromised As pointed out by the trial judge there was nothing surprising in the pleadings in this case with the Wrights asserting that the machine did not reach the standard required by virtue of it being possible to gain access to a potentially moving part and thus being dangerous and with AIB Finance and Geary s asserting that if the Wrights were correct in that regard the machine was subject to a design fault such that they were entitled to a complete indemnity from John Deere 3 4 Certain features of the harvester model 6810 were also not controversial At pp 4 and 5 of her judgment Irvine J set out a helpful synopsis of the relevant evidence Having referred to a diagram produced in the course of the Wrights evidence she went on to state the following Starting at the left hand side of the diagram the first pair of inwardly rotating feed rollers are those designed to pick up the silage from the ground The grass is thereafter fed into a pair of smaller rollers prior to entering a large cutter drum The cutter drum shreds the grass which is then propelled from that drum into a further drum known as the blower drum via a short chute The kernel processor shown on the diagram is not a feature on the harvester at issue in this claim The purpose of the blower drum is to drive the grass up and out of the harvester through a lengthy chute from whence the grass is ultimately discharged onto a trailer which is driven alongside the harvester The blower box has four paddles which when the engine is running and the clutch is engaged rotate 30 times per second The grass is then propelled into the lengthy exit chute by reason of the fact that there is a deflector plate at the point where the blower box meets the chute and this deflector plate diverts the grass into the chute rather than permitting it to travel around the blower box In other words on the diagram presented and using the dial of the clock for assistance the grass enters the blower box at approximately 7 00 o clock and leaves it at approximately 1 00 o clock It was accepted by all parties that harvesters of this nature do experience blockages In this particular case Mr Wright marked the areas where such blockages were most likely to take place on the first exhibit These blockages can be seen just prior to where the cut grass enters the blower box and immediately beyond the blower box at the start of the exit chute Red Xs on the diagram reflect the positions referred to by Mr Wright in his evidence The method used for clearing such blockages was described by Mr Wright and was not disputed by any of the parties Leaving aside the appropriate steps to be taken in relation to the engine prior to clearing any blockages the court received evidence as to how the respective blockages would be cleared Blockages of grass in the chute entering into the blower box would be cleared by the operative opening up the hatch of the blower box itself 3 5 Irvine J went on to describe the operation of the blower box as follows at pp 5 and 6 Additional information in relation to the blower box which is of relevance to this action is the fact that the blower box when the engine is running and the clutch engaged revolves at a speed of 1 800rpm with each paddle rotating 30 times per second Very late in the day and in the course of the evidence given by the second last witness in this trial evidence emerged on cross examination that the front rollers could be engaged in a reverse motion and that if this occurred that the blower box would be operating at 540rpm 3 6 Irvine J then went on to describe the manner in which access was obtained for the purposes of attempting to clear blockages which involved the removal of knobs retaining an inspection plate which is difficult enough to access in that the person concerned must bend down and crawl between the two side wheels of the harvester before opening the inspection hatch and gaining access to any grass which has caused the blockage in question There seems no doubt but that it was while Mr Scollard was engaged in attempting to clear such a blockage in the manner just described that the accident occurred However the precise circumstances of the incident were in significant dispute at the trial That leads to the key question which was found against John Deere by the trial judge and which forms the basis of the first main issue on this appeal How did the accident happen 4 How did the accident happen The account given by those present 4 1 The starting point has to be the evidence given by Mr Scollard Having told the court that there had been several clogging incidents on the day in question he gave evidence of a further blockage occurring at approximately 5 p m Mr Scollard stated that when he removed the panel he was faced with a solid wall of grass which he commenced pulling out with his hands He described the grass as tightly packed and difficult to disengage About 4 or 5 minutes later he felt something come down and squash his left hand which he then pulled out of the chute As a result all of his fingers were badly crushed but remained intact Mr Scollard gave evidence that between the time when the blockage occurred and when the accident happened the engine was running but that the blower box was switched off by virtue of the clutch not being engaged 4 2 Mr Tom Wright the first named plaintiff gave evidence that when the blockage occurred he left the engine idling and disengaged the clutch Mr Wright gave evidence that while Mr Scollard went to free the blockage in question he spoke to two farmers including a Mr McCarthy who also gave evidence who appeared to have been next in line to have their silage harvested Mr Wright as the trial judge put it was adamant that he did not get back into the harvester for the purposes of re engaging

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/f0d4ced36e2c0f7c80257c3e005b3394?OpenDocument (2016-02-09)
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  • that person determine or in the case of a notice served under section 132 dismiss the appeal Section 138 gives the Board an absolute discretion to dismiss an appeal where it considers it inter alia to be vexatious frivolous or without substance or foundation or is made with the sole intention of delaying the development 31 It is submitted by the Board that these provisions show that there is a distinction between the determination of an appeal and its dismissal without a determination In either of these cases there would still have to be a formal Order of the Board It follows as I understand the argument that the formal order can never be characterised as the determination since in the case of a dismissal the Board will have decided not to determine the appeal 32 More generally the Board says that the certified point is of singular importance to it It argues that because there will necessarily be an interval of a day or more between the meeting of the Board at which an appeal will be considered and the drawing up of a formal order to reflect the decision that has been made there is a risk of pressure being brought to bear on Board members and staff to divulge the outcome of appeals which have been dealt with at Board meetings before the formal paperwork reflecting those decisions has been completed 33 It submits that there is a danger of the creation of difficulties with the need to respect the laws of the European Union especially in respect of conservation of natural habitats by reference to Council Directive 92 43 EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora O J L 206 22 7 1992 p 7 The Board cites the decision of the Court of Justice in Case 127 02 Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw Natuurbeheer en Visserij 2004 ECR I 7405 That case concerned the licensing of mechanical cockle fishing in the Waddenzee SPA in the Netherlands The Court held that The competent national authorities taking account of the appropriate assessment of the implications of mechanical cockle fishing for the site concerned in the light of the site s conservation objectives are to authorise such an activity only if they have made certain that it will not adversely affect the integrity of that site That is the case where no reasonable scientific doubt remains as to the absence of such effects emphasis added 34 The Board draws attention to the principle of conforming interpretation laid down in many cases notably in Case C 106 89 Marleasing 1990 ECR I 4135 paragraph 8 It says that Irish legislative provisions ought to be interpreted in light of European law and obligations under same 35 In essence the Board submitted that from the moment of the determination of the appeal respectively on 16th March 2011 and 25th January 2011 the Board was functus officio Counsel accepted that it followed from this proposition that the Board had no power to reconsider its decision between that time and the time usually several days later when the matter was reduced to writing in the form of an order expressing the decision of the Board This would be so even if a member of the Board in the intervening period adverted to an important point of substance which should persuade the Board to reconsider It simply would not have the power to do so 36 Each of the respondents submits that the appeals having been withdrawn in each case the Board no longer had anything before it to decide Thus it had no jurisdiction to decide the appeal the appeal it is submitted is not finally determined until the Order of the Board is drawn up signed and sealed Therefore prior to the making of an order the Board is free to consider and reconsider what its decision will be 37 The respondents rely on the judgment of MacMenamin J They argue that because it has been held that for the purposes of the time limit for applying for judicial review the decision of the Board dates not from the time the Board meets and decides internally on the outcome of an appeal but from the date of its written and sealed decision the same date should apply for the purposes of s 140 1 a and the date of withdrawal of an appeal It is submitted that logic demands that the date of the formal written order or decision of the Board and its determination should be the same Conclusion 38 The entire debate on the appeal centres on the use of the word determine when the Board carries out its functions in relation to appeals pursuant to the Planning and Development Act 2000 as amended 39 However the key question is whether the combined effect of the use of the term determine in s 37 relating to the consideration and conclusion of an appeal in s 111 4 in its general reference to meetings of the Board and in s 140 1 a concerning the withdrawal of an appeal is that an appeal cannot be withdrawn at any time between the meeting of the Board where the matter is considered and concluded and the reduction of that determination to writing in the form of a decision 40 The essence of the submissions of the Board is that the Act makes a considered and deliberate distinction throughout between a determination and a decision Considering the matter at the most general level I find it difficult to understand why such a distinction should be necessary There is no obvious reason a priori pointing to a conclusion that the legal effect of an important administrative act should for one legal purpose date from the moment when it is verbally arrived at or concluded and for another from the time of its embodiment in a formal document having legal form and incorporating the reasons for its adoption That however is the clear effect of the submissions of the Board The Board claims that MacMenamin J decided the issue by reference to a point which was not in issue in the Urrinbridge case namely the date from which time limit for commencing judicial review proceedings is to be calculated It accepts that for the purposes of judicial review the time limit runs from the date of the decision for the purposes of s 50A 6 leaving aside the question of whether or not it is the date of notification which applies Once that proposition is accepted the implications of the Board s argument is that the determination has legal effect for the purposes of an application for judicial review only from the date of adoption of the decision but that an appeal cannot effectively be withdrawn between the time of the Board s determination of the matter and the formal adoption of the decision 41 A further counter intuitive implication of the argument that the Board is functus officio from the moment of its determination is that as was frankly accepted at the hearing it has no power to reconvene and reconsider a determination made through error oversight or inadvertence At the hearing it was postulated that a Board member might on further reflection come to realise that a mistake had been made whether of law or of appreciation of the facts Such an error might be fundamental It might be less serious For example it might have been agreed to impose a condition involving an erroneous calculation of technical matters On the Board s submission it would be powerless to correct such an error Its legal obligation would be to continue with the adoption of a clearly erroneous decision The answer to this undoubted dilemma which was proposed at the hearing was that the matter would have to await correction through the process of judicial review That to my mind would be an unnecessarily cumbersome and costly remedy 42 It seems to me obvious that in the ordinary way any deliberating body should be in a position to review its decisions before they have become irrevocable Indeed it is the long established position in law that a court or a judge has power to revise a judgment orally delivered until such time as it has been incorporated in a perfected order of the court 43 It is in the light of these considerations that I turn to consider whether contrary to these instincts the Act mandates such a distinction between the meaning of the words determination and decision as is propounded 44 The words themselves are as used in everyday English language natural synonyms Where the context is the resolution of a legal issue or dispute it would be natural to use them interchangeably That is indeed what MacMenamin J thought about their use in the context of the Act The Oxford English Dictionary 2nd Ed Clarendon Press Oxford 1989 Vol 4 treats them as synonyms of each other Decide as a transitive verb means To determine a question of controversy or cause by giving a victory to one side or the other to bring to a settlement settle resolve a matter in dispute doubt or suspense emphasis added Determine after a first range of meanings connoting putting an end to or limiting means To settle or decide a dispute question matter in debate as a judge or arbiter emphasis added The Thesaurus offered on the computer on which I am preparing this judgment offers decide settle on conclude as synonyms for determine and resolve determine as synonyms for decide 45 As a matter of law the matter must of course be decided in the light of the words as they are used in the Act It is true that the Act uses the word determine when referring to the Board in deciding a word I find it impossible to avoid on the result of an appeal Section 37 1 b provides Subject to paragraphs c and d where an appeal is brought against a decision of a planning authority and is not withdrawn the Board shall determine the application as if it had been made to the Board in the first instance and the decision of the Board shall operate to annul the decision of the planning authority as from the time when it was given and subsections 1 2 3 and 4 of section 34 shall apply subject to any necessary modifications in relation to the determination of an application by the Board on appeal under this subsection as they apply in relation to the determination under that section of an application by a planning authority 46 It is immediately obvious that the language changes almost imperceptibly from determine to decision Does the Act mean to distinguish in the same sentence between the determination of the Board at its meeting and its decision which annuls the decision of the planning authority It seems to me obvious that in this provision at any rate no distinction can have been intended Admittedly the second part of the paragraph returns to the term determination However it does so in a way which further undermines the proposition that the Act makes the consistent distinction suggested It refers explicitly to the determination under section 34 of an application by a planning authority However s 34 does not use the term determine or determination Section 34 1 envisages that a planning authority may decide to grant the permission Section 34 2 a speaks of the planning authority making its decision Thus s 37 1 b which is at the heart of the Board s submissions demonstrably uses the terms interchangeably What the Board determines in the first sentence becomes its decision later in the same sentence The decision of the planning authority under s 34 is its determination when 37 1 b needs to refer to it 47 Accordingly when s 140 1 a provides for the withdrawal of an appeal at any time before that appeal is determined by the Board it does not or at least does not necessarily refer to the moment at which the Board determines in the sense of deciding the appeal Taking those provisions together the natural and obvious conclusion is that s 140 1 a envisages that an appeal may be effectively withdrawn at any time prior to the incorporation of the determination of the Board in the form of its written decision 48 It remains to consider the effect of s 111 4 Every question at a meeting of the Board relating to the performance of its functions shall be determined by a majority of votes of the members present and in the event that voting is equally divided the person who is chairperson of the meeting shall have a casting vote 49 The function of that provision is to state what might be considered obvious namely that every question is to be decided by a majority vote of those present It does not apparently permit absentee voting though that is not a matter we need to decide The sub section is addressed not to the time at which a determination is deemed to be made but rather how the question is to be determined 50 Section 111 6 quoted above casts light on this That provision envisages that a member of the Board may finally determine points of detail relating to a decision on a particular case if the case to which an authorisation under that paragraph relates has been considered at a meeting of the Board prior to the giving of the authorisation and that determination shall conform to the terms of that authorisation 51 Three points emerge from that provision Firstly there may and presumably very often will be a need to address and decide on points of detail following the decision at the Board meeting and before the matter is reduced to writing Secondly the authorised Board member decides on those points of detail but the sub section uses the word determine for that activity Thirdly the final use of the term determination is consistent only with its being referable to the final written decision 52 It follows that s 111 4 when read in the light of s 111 6 does not mean that the determination for all purposes of the Act and in particular for the purposes of s 140 1 a takes place at the time of the Board meeting 53 I am also persuaded that the Act did not intend to draw a distinction between a determination and a decision by the express obligation imposed on the Board to state reasons for its decisions Section 34 10 imposes on every planning authority and on the Board in the following terms A decision given under this section or section 37 and the notification of the decision shall state the main reasons and considerations on which the decision is based and where conditions are imposed in relation to the grant of any permission the decision shall state the main reasons for the imposition of any such conditions provided that where a condition imposed is a condition described in subsection 4 a reference to the paragraph of subsection 4 in which the condition is described shall be sufficient to meet the requirements of this subsection The reasons on which the decision is based must necessarily be those which motivated the members of the Board to vote as they did when determining the matter under s 37 at their meeting Here they are treated as the reasons for the decision It is clear that no differentiation is intended 54 I am satisfied therefore that the terms determine and determination on the one hand and decide and decision on the other are used interchangeably for the purposes of s 140 1 a 55 I am not persuaded by the argument based on European Union law This is not a case of the interpretation of a provision of national law implementing a provision of a directive a regulation or any other provision of EU law The provisions of the Planning Act relating to the making of decisions on appeals by the Board and the withdrawal of appeals are items of national procedural law 56 It is possible of course that the withdrawal of an appeal may have the effect in a particular case of depriving the Board of the opportunity to decide that a particular permission may have the effect of contravening EU law However that result does not flow from the provisions concerning the time when an appeal is deemed to be withdrawn Those provisions are completely neutral on the point If the present appeals had been withdrawn before the date of the Board determination in each case the result would have been the same Indeed if the withdrawal of the appeal in the Urrinbridge had been sent in on 21st January instead of being delivered on 28th there would have been no question about the matter In other words whether the withdrawal of an appeal has an effect in the sense of causing the grant of a permission which contravenes provisions of EU law is not the result of the interpretation of the Act proposed in this judgment It is a random effect which is the same as if an appeal had never been served or had been withdrawn in good time 57 I do not find it necessary to consider the matter before the Court in the present appeals from the point of view of rights The rights of access to the courts for the purposes of applications for judicial review are of course highly relevant when considering the date of a decision of a planning authority or the Board and fixing the date when time begins to run The interpretation of s 140 1 a does not raise any issue of rights In my view it is a straightforward matter of statutory interpretation I am satisfied that an appeal can be validly withdrawn for the purposes of that provision at any time prior to the formulation of the written decision of the Board I would answer the question in each appeal accordingly 58 For these reasons I would dismiss the appeal in each case THE SUPREME COURT Appeal No 45 2013 Fennelly J O Donnell J Clarke J BETWEEN ECOLOGICAL DATA CENTRES LIMITED Applicant Respondent and AN BORD PLEANÁLA Respondent Appellant and WICKLOW COUNTY COUNCIL NATIONAL ROADS AUTHORITY CLAUS MICHEL IRIS MICHEL and MARC MICHEL ALAN BUTLER and AINE BURKE Notice Parties Appeal No 102 2012 THE HIGH COURT Record No 2011 248JR Between URRINBRIDGE LTD Applicant Respondent And AN BORD PLEANÁLA Respondent Appellant And WEXFORD COUNTY COUNCIL AND AILEEN O CONNOR Notice Parties JUDGMENT of Mr Justice Fennelly delivered the 10 th day of December 2013 1 This single judgment deals with the two appeals listed above They concern the same point of law and arise from practically identical circumstances In each case the planning authority had made a decision to grant planning permission which was appealed to the respondent appellant An Bórd Pleanala hereinafter the Board In each case the Board met and determined that it would allow the appeal and refuse the application for planning permission Finally in each case the third party appellant withdrew the appeal before the Board had reduced its determination to the written form of a decision 2 The point of law is as follows the Board says that once it had met and as it says determined the appeal there was no appeal remaining which could be withdrawn The notices of withdrawal of the appeal were ineffective Its determination of the appeal had the effect of annulling the decision of the planning authority to grant permission In short each of the respondents lost the benefit of the planning decision in its favour 3 The whole matter turns on the language of a small number of provisions of the Planning and Development Act 2000 No 30 of 2000 from here on referred to as the Act For the Board it is crucial that the Act uses the word determine or its cognates when referring to the act of the Board members when they meet and conclude whether a permission should or should not be granted The decision it says merely formalises that act an appeal cannot be withdrawn after the date of the Board s determination 4 The respective applicants in each case applied for judicial review of the decisions of the Board to refuse them permission claiming that in each case the appeal had been withdrawn before the Board had decided it and that the Board s decision had no legal effect In the second above name appeal the appeal of Urrinbridge Limited MacMenamin J held in a judgment of 28th October 2011 that the decision of the Board to refuse permission had been null and void He made an order of certiorari quashing the decision In the first above name appeal that of Ecological Data Centres Limited Hedigan J in a judgment delivered on 22nd January 2013 held that case to be indistinguishable from the earlier case He also found the decision of MacMenamin J to be correct and granted an order of certiorari 5 The Board has appealed both cases The facts Ecological Data Centres Limited 6 On 28th July 2010 the planning authority Wicklow County Council the first named notice party made a decision to grant to the respondent in the first named appeal hereinafter Ecologic Data planning permission for the development of a very substantial technology park on a site between Newtownmountkennedy and Kilpedder near the N11 in County Wicklow The second to seventh named notice parties appealed that decision to the Board within the statutory period The second sixth and seventh named notice parties withdrew their appeal on dates from September 2010 7 On 15th March 2011 the Board met and decided to refuse the application for planning permission On 16th March 2011 the third fourth and fifth named notice parties i e all the remaining appellants gave notice in writing withdrawing their appeals 8 On 18th March an officer of the Board wrote to the agent for those appellants stating that the letter withdrawing the appeals had not been received in time and that a decision had already been taken in the case 9 On 21st March 2011 the authorised member of the Board gave the Board Direction recording that the matter had been considered by all available Board members on 15th March 2011 stating that it had decided by a 5 2 majority to refuse permission generally in accordance with the Inspector s recommendations in accordance with the following draft reasons and considerations The document then set out the reasons and considerations On the same date the Board issued its formal order under its seal in accordance with the Direction Urrinbridge Limited 10 On 7th October 2010 Wexford County the first named notice party as planning authority decided to grant to the applicant respondent in the second appeal hereinafter Urrinbridge planning permission for a substantial residential and commercial development at Bloody Bridge Lyre County Wexford 11 The second named notice party served notice of appeal to the Board on 7th October 2010 12 The Board considered the appeal including a report from its Inspector at a meeting of the Board on 25th January 2011 It determined that it would refuse the application for planning permission 13 It appears from the affidavit sworn on behalf of Urrinbridge that the second named notice party had written a letter of withdrawal of her appeal on 21st January but this was not delivered to the Board until 28th January 2011 14 On 31st January 2011the Board following a like direction as in the Ecologic Data case made its order under its seal refusing the permission By letter dated the 1st February 2011 the Board notified Urrinbridge that an order had been made by the Board determining the appeal and enclosed a copy of the Board s order dated 31st January 2011 15 The essential facts therefore are identical The only extant appeal was withdrawn in each case after the Board as it says had determined the appeal but before it had embodied that determination in the form of its written decision The High Court 16 Leave to apply for judicial review was granted in each case As already stated MacMenamin J and Hedigan J respectively decided in favour of the applicants and made an order quashing each decision of the Board Since Hedigan J adopted the reasoning of MacMenamin J it is the latter judgment which needs to be considered 17 Having referred to the relevant statutory provisions at paragraph 22 he noted the effect of the Board s submissions as being as follows On foot of these the argument is made that a decision of a Board at its meeting is ipso facto the Board s determination that for example the preliminary submission of documents or particulars could only imply that the decision which then takes place on an appeal by the Board members where they meet to decide a matter is a final one It is said that these provisions preclude construing what occurs after the board meeting as being any part of a determination However the learned judge added at paragraph 24 However elsewhere provisions in the Act itself undermine any such misconception To some extent the argument resembles a house of cards if one vital base card is removed the edifice begins to crumble for reasons I will now explain 18 The learned judge referred to the Board s interpretation as being absolutist Since these provisions will be considered later it is not necessary to refer to them in extenso at this point MacMenamin J attached crucial importance to the question of the meaning of the word decision and the time limited by the Act for the making of application for judicial review of planning decisions He cited extensively from ss 50 and 50A of the Act He cited in particular the judgment of Kelly J in Friends of the Curragh Environment Ltd v An Bord Pleanála Others 2009 4 I R 451 At paragraph 31 MacMenamin J said The decision did not take effect until it was finalised or issued That date of notification was the date of the decision from the point of reckoning of time In that case as here the critical question is the reckoning of time How can the Board decision in this case be seen differently or as having taken legal effect until it was finalised or issued Any interpretation other than that applied by Kelly J would imply the rights of a hypothetical applicant could be seriously compromised Such rights include the right of access to the courts to seek relief by way of judicial review and property rights they therefore have a constitutional provenance To my mind and I use the term unavoidably that authority is a determination on the issue in question here Furthermore by way of illustration that very determination was made known by a judgment of the court which took effect at the time of its pronouncement or notification Why then should the principle be different in this Board determination It is difficult to escape the conclusion that the Board s stance here may have been attributable to concerns as to the unusual timeline of this case 19 Following this line of reasoning he thought that the words decision and determination were used interchangeably in the Act MacMenamin J emphasised the need to construe a statute strictly where it interferes with a constitutional right namely the right of access to the courts 20 In each case the High Court certified the same point of law of exceptional public importance pursuant to s 50A 7 of the Act as amended as being a point in respect of which it is desirable in the public interest that an appeal should be taken to this Court It is as follows When does the Board determine an appeal for the purposes of section 37 1 b and section 140 1 a of the Planning and Development Act 2000 as amended The appeal 21 The Board argues for a distinction in meaning between the words determine and decide and their cognates It says that the words are not mere synonyms The concept of determination implies the application of reason in light of the statutory criteria The Board determined the appeals when it considered the substantive merits of the appeal and decided the outcome not when the Board member signed the formal Board order bringing the appeal to an end The determination does not crystallise into a decision until it is formalised in writing 22 In essence the Board relies on the combined effect of the following provisions in which each use of the word determine is underlined 23 Section 37 1 b of the Act provides that where an appeal is brought against a decision of a planning authority and is not withdrawn the Board shall determine the application as if it had been made to the Board in the first instance 24 The same paragraph goes on to provide that subsections 1 2 3 and 4 of section 34 shall apply subject to any necessary modifications in relation to the determination of an application by the Board on appeal under this subsection as they apply in relation to the determination under that section of an application by a planning authority 25 Section 140 1 a provides A person who has made an appeal may withdraw in writing the appeal planning application or referral at any time before that appeal or referral is determined by the Board 26 These combined references to determining do not of course specify the exact point when the determination takes place It is for that reason that the Board invokes s 111 4 which provides Every question at a meeting of the Board relating to the performance of its functions shall be determined by a majority of votes of the members present and in the event that voting is equally divided the person who is chairperson of the meeting shall have a casting vote 27 Section 111 6 Act however provides a Subject to paragraph b and c the Board may perform any of its functions through or by any member of the Board or other person who has been duly authorised by the Board in that behalf b Paragraph a shall be construed as enabling a member of the Board finally to determine points of detail relating to a decision on a particular case if the case to which an authorisation under that paragraph relates has been considered at a meeting of the Board prior to the giving of the authorisation and that determination shall conform to the terms of that authorisation c Paragraph a shall not be construed as enabling the Board to authorise a person who is not a member of the Board finally to determine any particular case with which the Board is concerned 28 The Board rejected the suggestion that the member of the Board authorised under this sub section was involved in making any determination of final points of detail That member was merely formally drawing up the Board s determination in the form of a decision that could then be notified to the parties 29 There are other uses of the term determine Section 137 1 provides The Board in determining an appeal or referral may take into account matters other than those raised by the parties or by any person who has made submissions or observations to the Board in relation to the appeal or referral if the matters are matters to which by virtue of this Act the Board may have regard 30 The Board makes a number of other points based on the text of the Act S 37 1 c provides that paragraph b is to be construed subject to sections 133 138 and 139 Section 132 permits the Board by notice to require the provision of any document particulars or other information which in its opinion may be necessary for the purpose of enabling it to determine an appeal It may give notice that in default of compliance with its request it may pursuant to section 133 dismiss or otherwise determine the appeal Section 133 enables the Board having served a notice under section 131 or 132 and having considered any submissions documents particulars or information supplied without further notice to that person determine or in the case of a notice served under section 132 dismiss the appeal Section 138 gives the Board an absolute discretion to dismiss an appeal where it considers it inter alia to be vexatious frivolous or without substance or foundation or is made with the sole intention of delaying the development 31 It is submitted by the Board that these provisions show that there is a distinction between the determination of an appeal and its dismissal without a determination In either of these cases there would still have to be a formal Order of the Board It follows as I understand the argument that the formal order can never be characterised as the determination since in the case of a dismissal the Board will have decided not to determine the appeal 32 More generally the Board says that the certified point is of singular importance to it It argues that because there will necessarily be an interval of a day or more between the meeting of the Board at which an appeal will be considered and the drawing up of a formal order to reflect the decision that has been made there is a risk of pressure being brought to bear on Board members and staff to divulge the outcome of appeals which have been dealt with at Board meetings before the formal paperwork reflecting those decisions has been completed 33 It submits that there is a danger of the creation of difficulties with the need to respect the laws of the European Union especially in respect of conservation of natural habitats by reference to Council Directive 92 43 EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora O J L 206 22 7 1992 p 7 The Board cites the decision of the Court of Justice in Case 127 02 Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw Natuurbeheer en Visserij 2004 ECR I 7405 That case concerned the licensing of mechanical cockle fishing in the Waddenzee SPA in the Netherlands The Court held that The competent national authorities taking account of the appropriate assessment of the implications of mechanical cockle fishing for the site concerned in the light of the site s conservation objectives are to authorise such an activity only if they have made certain that it will not adversely affect the integrity of that site That is the case where no reasonable scientific doubt remains as to the absence of such effects emphasis added 34 The Board draws attention to the principle of conforming interpretation laid down in many cases notably in Case C 106 89 Marleasing 1990 ECR I 4135 paragraph 8 It says that Irish legislative provisions ought to be interpreted in light of European law and obligations under same 35 In essence the Board submitted that from the moment of the determination of the appeal respectively on 16th March 2011 and 25th January 2011 the Board was functus officio Counsel accepted that it followed from this proposition that the Board had no power to reconsider its decision between that time and the time usually several days later when the matter was reduced to writing in the form of an order expressing the decision of the Board This would be so even if a member of the Board in

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  • is whether the surrender of the respondent would in the terms of s 37 1 a i of the European Arrest Warrant Act 2003 be contrary to the State s obligations under the European Convention on Human Rights The issue which arises in this case is net It is not necessary to conduct a broad ranging analysis of the Constitution or of sentencing practices in other European States A broad analysis is not necessary in the circumstances of the case Arbitrary 18 In James Wells and Lee v The United Kingdom App Nos 25119 09 57715 09 and 57877 09 Unreported European Court of Human Rights 18th September 2012 the European Court of Human Rights referred to as the ECtHR stated that in order to assess whether the applicants detention post tariff was arbitrary the ECtHR must have regard to the detention as a whole The ECtHR held at para 221 In these circumstances the Court considers that following the expiry of the applicants tariff periods and until steps were taken to progress them through the prison system with a view to providing them with access to appropriate rehabilitative courses their detention was arbitrary and therefore unlawful within the meaning of Article 5 1 of the Convention 19 The ECtHR held that there had been a violation by the United Kingdom of Article 5 1 of the Convention in respect of the applicants detention following the expiry of their tariff periods and until steps were taken to progress them through the prison system with a view to providing them with access to appropriate rehabilitative courses 20 Thus under the prior law of the United Kingdom there was a system of indeterminate sentencing as identified by the ECtHR which contravened Article 5 1 of the European Convention on Human Rights It is a system which the United Kingdom has itself now abolished However the new statutory scheme in the United Kingdom does not apply retrospectively Thus the prior arbitrary law would apply to the respondent if he was surrendered 21 For clarity I stress that this is a net decision based only on the prior law of the United Kingdom which has been abolished and which was found to be arbitrary and contrary to the European Convention on Human Rights by the ECtHR 22 In these circumstances I am satisfied that the respondent should not be surrendered to serve a term of imprisonment in accordance with the former statutory regime of the United Kingdom which has been found to be in contravention of Article 5 1 of the European Convention on Human Rights Accordingly that prior statutory regime under which this particular respondent would be detained if surrendered constitutes a fundamental and systemic breach of the European Convention on Human Rights To surrender the respondent to the United Kingdom in those circumstances would be a breach of Ireland s obligations under the European Convention on Human Rights Accordingly the surrender must be refused in accordance with s 37 1 a i of the European Arrest Warrant Act 2003 which provides that a person shall not be surrendered under the Act if his or her surrender would be incompatible with the State s obligations under the European Convention on Human Rights 23 Thus I would dismiss the appeal for the reasons given THE SUPREME COURT Appeal No 316 2012 Denham C J Murray J MacMenamin J Between The Minister for Justice and Equality Applicant Appellant and Laurence Kelly aka Gavin Nolan Respondent Judgment of Denham C J delivered on the 10th day of December 2013 by Denham C J 1 This is an appeal by the Minister for Justice and Equality the applicant appellant referred to as the appellant against the judgment and order of the High Court Edwards J delivered on the 24th May 2012 2 The surrender of Laurence Kelly aka Gavin Nolan the respondent referred to as the respondent was sought by the authorities in the United Kingdom pursuant to a European Arrest Warrant issued on the 5th October 2010 and was refused by the High Court 3 The European Arrest Warrant was endorsed in accordance with s 13 of the European Arrest Warrant Act 2003 as amended and the respondent was arrested on the 24th October 2011 and brought to the High Court The hearing of the request took place on the 8th March and 12th March 2012 and on judgment being delivered on the 24th May 2012 surrender was refused and the respondent was discharged from the proceedings 4 On the 18th June 2012 an application was made by the appellant for an order certifying a question for this Court The learned trial judge granted the application and the order of the High Court was perfected on 25th June 2012 The certified question posed to this Court is Is the sentence which the respondent is sought to serve so contrary to the scheme and order envisaged by the Constitution that surrender must be refused by the Court Background 5 In the early hours of the 9th April 2005 in Kilburn London the respondent attacked a woman committing the offences of attempted rape and assault causing actual bodily harm 6 On the 4th April 2005 a new form of sentencing had come into force in the United Kingdom which applied to offences committed after that date and which in certain circumstances obliged a sentencing court to impose an indeterminate sentence for public protection 7 On the 1st August 2005 the respondent pleaded guilty at Harrow Crown Court and on the 8th November 2005 he was sentenced to a determinate period of two and a half years imprisonment to be followed immediately by an indeterminate sentence for the protection of the public 8 On appeal the Court of Appeal Criminal Division in the United Kingdom varied the sentence but only in that the imprisonment was to be served in a young offenders institution Thus the sentence had two parts The first was the minimum term of imprisonment sometimes referred

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