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  • than in good faith An order of certiorari was sought to quash the decision of the Board to invoke clauses 7 3 and 7 4 of Primary Circular 10 05 Injunctions were sought including one restraining the Board from excluding the appellant from St Mary s Touraneena National School until the appellant had attended a medical assessment by Dr Mohan or other psychiatric assessment at the behest of the Board The reliefs sought against the Minister included an injunction restraining the Minister from facilitating the invocation by the Board of clause 7 of Primary Circular 10 05 in relation to the appellant and an injunction restraining the Minister from doing anything to facilitate the exclusion of the Board of the appellant from the resumption of her responsibilities as a teacher Thus the core of the matter was clause 7 3 of the Primary Circular 10 05 8 The High Court ordered that the application be refused and that the appellant pay to the Board and the Minister the costs of the proceedings 9 The High Court was satisfied that the Board acted intra vires at the time it invoked its right to have the appellant subjected to an independent specialist medical review pursuant to clause 7 3 of the Circular of 27th January 2006 The High Court concluded that the Board in seeking to set in train the procedure whereby the appellant would be referred for independent medical examination did not act in breach of its contract with the appellant and found that there was nothing invalid in the manner in which the appellant was referred for examination by Dr Mohan 10 The High Court concluded that at all times the Board invoked its rights under clause 7 3 at a time when it had reason to have bona fide concerns regarding the appellant s potential fitness to return to work 11 The High Court rejected the sinister motivation imputed to the Board by the appellant and also rejected the assertion that the decision of the Board to invoke clause 7 3 was irrational 12 In relation to the application against the Minister the High Court held that the appellant s claim was predicated on an assumption that the Minister permitted the Board to act in a manner which was unlawful The High Court concluded to the contrary and held that the Minister could not be accused of standing idly by and permitting the appellant to be subjected wrongfully to a medical examination under clause 7 3 Further having regard to the High Court s conclusion that the Minister was under no obligation to conduct any inquiry prior to terminating payment of a teacher s salary where the teacher had exceeded the period of paid sick leave provided for in the Circular the High Court rejected the appellant s claim against the Minister 13 The appellants have appealed the decision of the High Court to this Court Notice of Appeal 14 The appellant filed a notice of appeal setting out 42 grounds of appeal which included inter alia the following grounds In relation to the appellant s claim as against the Board the learned High Court judge erred in law and in fact i In holding that the Board of Management had validly invoked clause 7 3 of Primary Circular 10 05 and did not act ultra vires its powers ii In concluding that the decision of the Board to have the appellant independently medically examined under clause 7 3 was bona fide for the purposes for which the clause was intended iii In failing to construe clause 7 3 of Primary Circular 10 05 by reference to the appellant s constitutional rights and to her rights under the European Convention on Human Rights Act 2003 iv In construing clause 7 3 of the Circular to mean that the clause can be invoked once there were bona fide concerns regarding the teacher s potential return to work and the clause is not confined to concerns which relate solely to ill health v In holding that it was unnecessary for the Court to reach any conclusion as to whether or not there was any breach of natural justice or want of fair procedures in relation to the medical examination proposed with Dr Damian Mohan on the grounds that the examination never in fact took place vi In failing to hold that the concerns document was grossly prejudicial and reflected a lack of bona fides on the part of the principal and chairperson and or the Board of Management and vii In failing to hold that the individual appointed to carry out her medical examination was not in the circumstances independent In relation to the appellant s appeal against the Minister it was claimed that the learned trial judge erred in fact and in law i In failing to find for the appellant as against the Board as a preliminary finding of liability against the Minister ii In holding that the Board had acted intra vires in invoking clause 7 3 of the Circular and that the Minister was entitled in the circumstances to discontinue the payment of the appellant s salary and iii In holding that there is no onus on the Minister once the permitted period of sick leave has expired to conduct any further enquiry prior to withdrawing salary payments in pursuit of the Circular Submissions 15 Written and oral submissions by the appellant the Board and the Minister were received and considered by the Court 16 The submissions centred on the proper interpretation and application of clause 7 3 of Primary Circular 10 05 This clause has since been superseded and consequently this decision is of historic value and does not refer to the current law 17 The appellant s submissions focused on two main issues that the invocation of clause 7 3 was for an improper purpose and was ultra vires the Board s powers and that the manner in which clause 7 3 was applied was in breach of natural justice 18 The Board s submissions essentially maintained that there had been no error by the learned High Court judge It was submitted that the appellant had failed to discharge the burden of proof upon her in these matters and that the trial judge correctly decided the issues on all the evidence before her 19 It was submitted on behalf of the Minister that he is neither a necessary nor a proper party to the proceedings Time 20 This appeal comes on for hearing seven years after leave to apply for judicial review was granted and five years after the decision of the High Court which is under appeal The delays are not the fault of the parties but are very unfortunate 21 In the years since the High Court decision events have moved on The appellant is now on a different panel and is teaching in a different school Thus the primary relief sought by the appellant in relation to St Mary s Touraneena National School has a degree of unreality However events which occurred after the hearing in the High Court and which have altered the situation are not part of the evidence in this hearing This case is based on the leave granted by the High Court in 2006 and on the judgment of the High Court in 2008 Matters outside the leave granted in 2006 may not be part of this appeal Clause 7 3 of Primary Circular 10 05 22 The case relates to Primary Circular 10 05 which has been superseded and to actions of the Board which it took under clause 7 3 of Primary Circular 10 05 The Board was the employer of the appellant Teachers who are employed by a Board agree to comply with the Rules for National Schools and are then paid by the Minister 23 The Circular in issue in this case revised rr 93 112 and 113 of the Rules of National Schools There is an employment contract between the appellant and the Board and the Circular is part of the contractual relationship between the parties However the Circular brings a public law element to the circumstances 24 The Circular established a new sick leave scheme at the time It was a new scheme agreed between the Department the Irish National Teacher Organisation the INTO and schools organisations whereby teachers who were employed by Boards could avail of sick leave 25 Clause 7 was entitled Resumption of duty following paid unpaid sick leave It read inter alia as follows 7 1 A permanent teacher cannot resume teaching following a period of paid sick leave of more than three consecutive months without providing a medical certificate of fitness to resume full time teaching This certificate should be provided to the Board of Management at least two weeks prior to the proposed date of resumption of teaching duties 7 2 A teacher may apply to the Board of Management to resume duty at or before the end of the unpaid sick leave period subject to the teacher furnishing a comprehensive report from a recognised medical doctor stating that s he is fit to resume duty This report is referred to the Chief Medical Officer who will determine if the teacher is fit to resume duty 7 3 If the Board of Management has any concerns regarding the teachers proposed resumption of duty it may refer the teacher for an independent medical assessment prior to the proposed date for resumption of teaching It is recommended that each Board of Management should have a local medical advisor for dealing with routine occupational medical matters preferably with some occupational medical experience or training When referral for independent specialist assessment is required the local medical advisor to the Board of Management should nominate the appropriate specialist suited to the teacher s underlying medical disorder A teacher who fails to attend for independent medical assessment at the request of the Board of Management will cease to be paid incremental salary until such time as s he attends for assessment Costs in respect of the independent medical assessment will be borne by the Board of Management 26 The appellant s case was that the Board failed to comply with the Circular and failed to comply with the sick leave scheme 27 Under clause 7 1 a permanent teacher cannot resume teaching following a period of paid sick leave of more than three consecutive months W ithout providing a medical certificate of fitness to resume full time teaching This certificate should be provided to the Board of Management at least two weeks prior to the proposed date of resumption of teaching duties 28 It appears that the appellant had taken approximately 360 sick days over a four year period and that she had been off sick since the previous September Thus she came within clause 7 1 29 The appellant did forward medical certificates to the Department of Education and Science so that the Department could verify her illness and pay for a substitute teacher This meant that the Department was paying two salaries during her sick leave 30 The appellant argued that the Board did not have sufficient reason to seek an independent medical opinion 31 The appellant contended on this appeal that the Board did not have concerns or bona fide concerns for the purpose of clause 7 3 in that its concerns related only to the threat of litigation It was submitted that the Board did not have concerns for the purpose of clause 7 3 and did not act bona fide and or acted unreasonably and ultra vires 32 The threat of litigation is not a ground set out in the statement of grounds There was no application for an extension of the grounds The High Court rejected the submission that the threat of litigation was the basis for the Board s action under Circular 10 05 Thus there is no basis for an appeal on this issue as it was not in the grounds granted for the judicial review and those grounds have not been extended 33 The primary issue on the appeal is whether the Board was entitled to invoke clause 7 3 of the Circular in circumstances where the appellant had been certified as fit to return to work by her GP Dr Tom Higgins by Dr Stephen Browne her Consultant Psychiatrist and by the Chief Medical Officer the CMO 34 The learned High Court judge held that such medical certificates were not a bar to the operation of clause 7 3 The High Court held that the Board was entitled to apply clause 7 3 provided it had bona fide concerns regarding the appellant s fitness to return to teaching duties 35 It was raised as a ground of appeal by the appellant Was the referral by the Board of the appellant for an independent medical assessment for an improper purpose such that its invocation of 7 3 by the Board was ultra vires its powers The learned High Court judge decided that the Board had acted bona fide In seeking to determine whether the Board invoked clause 7 3 in response to bona fide concerns held by it regarding the applicant s health or alternatively for any one of the numerous sinister or improper motives attributed to the Board by the applicant the Court must first of all note that the burden of proof in this respect is on the applicant Further the Court must reach its conclusions having regard to the denials made by the chairperson of the Board as to the motivation which has been imputed to it by the applicant given the applicant has not sought to cross examine the chairperson in respect of such denials Secondly as was submitted on behalf of the first named respondent the Board knew from its legal advisors that once personal injuries litigation was commenced by the applicant it would be entitled in any event not only to have the plaintiff medically examined but also to discovery of any documentation pertaining to her health issues The Court having considered the entirety of the evidence placed before it concludes that it would be entirely artificial to determine this issue as urged by the appellant The Court concludes that the only reasonable approach to determine this issue is to consider all the evidence emerging from the affidavits and exhibits and having done so to assess whether the appellant has discharged the burden of proof in relation to her assertion that the invocation by the Board of clause 7 3 was not motivated by bona fide concerns which permit the operation of the relevant power Having carried out the exercise referred to in the immediately preceding paragraph the court concludes that it is disingenuous for the appellant to characterise her referral for independent medical specialist assessment as some type of retaliatory measure instigated by her employer arising from her complaints of bullying and harassment The Court in seeking to determine the likely dominant purpose for the invocation by the board of clause 7 3 simply cannot ignore the full facts which emerge from the affidavits and exhibits and in particular the following facts which are not disputed The learned High Court judge referred to uncontested facts There is nothing in the documentation to support the appellant s assertion that the decision to invoke clause 7 3 was irrational Neither can the Court conclude that the dominant purpose for which the clause was invoked was as suggested by the appellant for the purpose of impeding her pursuit of her potential personal injury litigation It appears to this Court that the decision of the Board to have the appellant independently medically examined under clause 7 3 was bona fide for the purposes for which that clause was intended 36 It is clear that the High Court was not satisfied that the appellant had discharged the required onus of proof in her application for judicial review 37 The High Court concluded on this aspect of the case The Court therefore concludes that the Board in invoking the provisions of clause 7 3 did not act ultra vires its powers and that its decision to invoke clause 7 3 was entirely rational in all of the circumstances of the case The court s conclusion that the Board had bona fide concerns regarding the appellant s health is fortified by the content of notes produced on the appellant s behalf 38 The query was also raised as to whether there was a failure to comply with the provisions of clause 7 3 of the Circular and if so whether the appellant was entitled to any declaratory or injunctive relief as claimed in the proceedings 39 The High Court held inter alia The court accordingly concludes that the Board was not in breach of the provisions of clause 7 3 of the Circular Further if the Court is incorrect in this respect the fact that the Board may have been in error on its first attempt to implement the provisions does not render in any way irregular the subsequent referral of the applicant by Dr Mahony for review by Dr Lawler Consultant Psychiatrist for the purposes of obtaining the appropriate independent medical report sought under the provisions of the said clause 40 The fact that the appellant did not attend Dr Lawler was starkly described by the High Court Neither the appellant nor her solicitors nor her trade union representative has chosen to advise the Court as to why in the light of the above correspondence the appellant has failed to attend a medical examination with Dr Lawler in circumstances where the only matter standing between the appellant and her return to teaching duties is a supportive report from Dr Lawlor 41 It appears that the appellant s decision to seek judicial review overtook events 42 On the face of it the referral to Dr Lawler is within Clause 7 3 However the

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  • can be said that there is also a public law element to this case The Immediate Background 17 In December 2005 against the backdrop of the allegations so made para 5 supra the Chairperson was curious to know where Mrs Fitzpatrick was in terms of her sick leave and what her next move might be He wrote to her on the 22nd December 2005 and referred to the requirement Clause 7 1 of the Circular of a permanent teacher having to submit a medical report to the Board if she intended to resume duty after a paid period of sick leave of more than three consecutive months He wanted to ensure that the Board had time to consider any such report within the parameters of Clause 7 3 but save for that reference he did not otherwise invoke its provisions or outline any grounds upon which the Board might do so in the future His anticipation of what might occur came to pass when in a letter dated the 26th January 2006 hand delivered the following day Mrs Fitzpatrick gave notice of her intention to resume duties on the 13th February 2006 and enclosed a certificate of fitness from her G P in that regard 18 The receipt of this notification provoked a great deal of immediate activity on the part of Fr Kelleher He wrote two letters that day one to the applicant and one to Dr Mahony whom it can be taken was then performing the role of the local medical advisor as envisaged by Clause 7 3 of the Circular He told the plaintiff of the Board s concerns regarding her proposed return to work these were based on the allegations of bullying and harassment which were the cause of her sick leave in the first place He invoked Clause 7 3 and referred her to Dr Mahony whom he said will nominate the appropriate specialist suited to your underlying medical disorder He ended the letter by directing her to remain absent from work as per section 8 as he put it presumably of the Circular It is however highly doubtful if this Clause had any bearing on the applicant s circumstances at the time but nothing turns on that in this appeal 19 The second letter of the 27th January 2006 as stated was sent to Dr Mahony and as appears from its content was evidently preceded by a phone call between them The Chairperson who enclosed a copy of the G P certificate para 17 supra sought to appraise the doctor of certain background information He included also the September 2005 letter and his robust response of the 19th October 2005 He said that he was very concerned about the allegations of bullying and harassment which the appellant claimed had been caused by her employer and had occurred in the workplace all of which had resulted in damage to her health He went on to say that the school is a safe place of work but that the position of Deputy Principal is inherently stressful Finally he felt that she should be assessed by a consultant psychiatrist and asked the doctor to make the necessary referral if possible within the week 20 To keep the narrative as it continues in context reference must now be made to what the Department was doing during that same time By letter of the 25th November 2005 it wrote to the plaintiff pointing out by reference to Rule 112 3 RNS that the maximum sick leave in any period of four consecutive years was 365 days that she had accumulated 272 days in such period up to the date of the letter and that the maximum would be exceeded by the 1st March 2006 if she had not returned to work on or before that date Relying on Rule 93 1 b RNS the letter sought a comprehensive Doctor to Doctor medical report on both her illness and the prognosis for the future Significantly it was also pointed out that if she wished to return to work on or before the March date she would also be required to submit a medical certificate of fitness to the Chairperson of your Board of Management 21 When a teacher is out on sick leave she has the option of submitting medical reports either to her Board of Management or as the applicant decided to do directly to the Department In January 2006 in preparation for her return to work the appellant sent a report to the Department from Dr Stephen Browne a consultant psychiatrist attached to Waterford Regional Hospital That report was reviewed by the CMO who in her Consultation Report of the 24th January 2006 records that Dr Browne advise d that Mrs Fitzpatrick is currently well and fit to return to work however he feels that she is likely to have a recurrence of her medical problem if the inter personnel difficulties she is experiencing at work are not resolved 22 On the 27th January 2006 the applicant was informed by the pay section that having reviewed the medical report of Dr Browne the CMO had advised the Department that she was currently well and fit to return to work It went on to say that a certificate of fitness had been submitted to the Board On the 28th January a letter probably intended to have the same content as that just mentioned was sent to the Chairperson but unlike what was stated to Mrs Fitzpatrick the review by the CMO was quoted more fully and made reference to the likelihood of her medical problems reoccurring if the inter personnel difficulties she is experiencing at work are not resolved 23 That letter prompted more correspondence between Fr Kelleher and Dr Mahony This communication was by way of an undated letter but evidently one sent prior to the appellant s first appointment with the doctor which took place on the 8th February 2006 It also and significantly included a very detailed and lengthy memorandum prepared by the school Principal the Nix Memo or the Memo a person against whom the allegations of bullying and harassment were also being made The letter conveyed the information referred to in the preceding paragraph and pointed out with particular emphasis that the Nix Memo will be important to you and Dr Mohan the consultant psychiatrist to whom Mrs Fitzpatrick will be referred As the Memo runs to several pages I will refrain from detailing its contents other than to offer the appellant s description of it as containing material grossly prejudicial to her position 24 On the 8th and 13th February 2006 Mrs Fitzpatrick met Dr Mahony during which she became aware for the first time that documentary material had been sent to him regarding her position She requested but was declined a copy apparently on the instructions of Fr Kelleher 25 The applicant s Union s representative queried later that month why any referral under Clause 7 3 of the Circular was necessary given the CMO s certification of her fitness for work Further it was stated that any referral was a matter for the local medical advisor and not for the Board In response on the 22nd March 2006 the Chairperson said that Mrs Fitzpatrick was nominated by Dr Mahony in compliance with section 7 3 for assessment by Dr Damien Mohan 26 On the 31st March 2006 Fawsitt Solicitors wrote to the Chairperson on behalf of Mrs Fitzpatrick Having referred to certain matters and noting with particular concern the Nix Memo which was described as being highly contentious they complained of the Board s motive in sending it to Dr Mohan whom it was claimed had been hand picked by you i e by Fr Kelleher In such circumstances their client would not be attending Dr Mohan However and despite an assertion that no referral was in fact either necessary or appropriate the applicant would agree nonetheless to attend a different specialist who would not in her words be so tainted by such information That specialist however would have to be nominated by Dr Mahony as provided for by Clause 7 3 of the Circular 27 There then followed between May and the 19th July 2006 what I consider to be a significant exchange of correspondence On the 26th May 2006 the solicitors for the applicant reaffirmed their client s objection to being examined by Dr Mohan but also repeated her willingness to attend a different doctor for any such examination as might be thought fit The response on the 15th June was by Arthur O Hagan Solicitors acting on behalf of the Board Having taken some issue with how the dispute had been previously characterised and having made some offer as to how the impact on Dr Mohan of the material sent to him might be neutralised the letter goes on to say that The issue between us would appear to come down to a right of a medical specialist nominated on behalf of the Board to request a briefing from school management prior to carrying out the assessment Should your client remain unwilling to attend Dr Mohan our client is prepared to request Dr Mahony to refer her for assessment to another relevant specialist on the understanding that both our respective clients would comply fully with any requirements the specialist concerned might have with regard to the assessment 28 The response of the 10th July 2006 was that whilst the applicant was prepared to accept any reasonable nomination by Dr Mahony she was not prepared to agree to any preconditions The reason for this was stated as being that this proposal appears inter alia conceived as a device to validate the strategy already adopted by the Board of Management in the dispatch to Dr Mohan of the Concerns document or indeed some repetition thereof Whilst further matters are referred to and other demands made including an insistence on the part of Mrs Fitzpatrick of her unconditional right to return to duty these do not add to the dispute information above outlined 29 This series of correspondence bar one further letter finalised with Arthur O Hagan s response of the 19th July 2006 which stated We understand from our clients that they are requesting Dr Mahony to make a further referral of your client as proposed in our letter the 15th June last We do not understand your reference to preconditions It is a matter for our client s medical advisors as to what they may require in advance of a consultation and both our client and Mrs Fitzpatrick must cooperate with that Lastly for completeness it should be noted that Dr Mahony informed the appellant on the 19th July that he had referred her to Dr Martin Lawlor in Cork University Hospital 30 At this juncture this sequence of correspondence ends as immediately afterwards leave to institute these proceedings was obtained from the High Court The High Court Decision 31 The trial judge determined the application as made against the first defendant by considering what had been urged under six different headings Whilst I do not consider it necessary to traverse each of these issues to the same extent as in my view the appeal can be determined on narrower grounds nonetheless some comment is required on a number of these matters As against the second named defendant the application was dismissed as the learned judge rejected the composite ground of allegation as next described The Appeal As Against the Minister 32 The grounds upon which the appeal was argued as against this defendant which very much replicated those presented at the Court of trial are grounds which by law the appellant may not be capable of relying upon This results from the provisions of O 84 r 23 1 of the Rules of the Superior Courts 1986 to 2013 when read in conjunction with the leave order As appears from the judgment of the High Court the allegation against the Minister as generally described is that as he was aware of the steps being asserted by the Board against the appellant and as he stopped the payment of her salary by reference to such steps he must in these circumstances noting in particular his supervisory role in the operation of Clause 7 of the Circular be taken as having adopted and as being identified with his co defendant in respect of the wrongs perpetrated by it 33 Leaving aside for a moment whether or not this point is arguable as a matter of law it must be recalled that the only legal ground upon which leave was obtained against the Minister was that as set out at para 8 of the Statement of Grounds which reads as follows The respondents have acted and continue to act in disregard inter alia of the constitutional rights and legitimate expectations of the applicant her rights under the ECHR and in breach of the principles of fair procedure and of constitutional and natural justice 34 It is quite difficult to see how within this ground the allegation as mentioned can be accommodated particularly in view of the express concession by the appellant that neither the Convention nor the Constitution are being relied upon at this stage that the validity of the Circular is not being challenged and that no complaint is being advanced in respect of the Department s reliance on Rule 93 1 b RNS In addition and quite obviously no point is taken about the CMO s so called certification of Mrs Fitzpatrick s fitness for duty Therefore I cannot see the existence of any connection certainly not any of substance between the allegation as formulated and the terms of ground no 8 35 On a judicial review application moved under O 84 of the Rules of the Superior Courts 1986 to 2013 the scope of the relief sought and the grounds upon which such might be obtained are to be identified from the order of the High Court granting leave subject only to any amendment or variation subsequently allowed Unless expressly or by interpretation implicitly within such order no relief or ground which differs therefrom can be argued This also applies to an appeal in this type of application save of course that the Notice of Appeal is also a defining document However that Notice cannot enlarge the scope of the application as originally granted or later amended 36 In McCormack v The Garda Síochána Complaints Board Ors 1997 2 I R 489 Costello P in this context said at p 503 that the courts jurisdiction to entertain the application is based on and limited by the order granting leave This statement has been subsequently repeated in several decisions of both the High Court and this Court including Keegan v Garda Síochána Ombudsman Commission 2012 2 I R 570 Fennelly J at p 576 Such expression of the law is reflective of O 84 r 23 1 which states that no grounds shall be relied upon or any relief sought at the hearing except the grounds and relief set out in the statement As no amendment to the leave order of the 31st July 2006 has ever been sought this legal ground of appeal cannot be established with regard to the second named defendant 37 In fact the position of the Minister no matter how the argument is addressed is put beyond issue given my conclusion on the case as made against the Board The Appeal Against the Board 38 The first point for resolution is whether Clause 7 3 of the Circular could ever be invoked given the certificates submitted by the appellant s medical advisors and the Consultation Report of the CMO dated the 24th January 2006 This in turn requires an examination of the provisions of that Clause and an understanding of the relationship between the Circular and the Rules 39 From an interpretive point of view the Circular which forms part of the appellant s terms of employment can be considered as having a contractual basis and as such in private law its true meaning can be ascertained by reference to general principles This means that the parties intentions must be ascertained from the language used when considered within the surrounding circumstances and in light of the nature object and purpose of the contract One must add to this what Fennelly J said in Analog Devices B V Ors v Zurich Insurance Company Ors 2002 1 I R 272 at p 294 that i nsofar as Irish law is concerned the contract is to be interpreted objectively in accordance with the meaning of the words the parties have used The opinion of Lord Hoffman in Investors Compensation Scheme Ltd v West Bromwich Building Society Same v Hopkin Sons a firm Ors 1998 1 W L R 896 is to the same effect 40 In addition however in this case one must also be mindful of a public law element which comes about as a result of the manner of the Circular s creation the subject matter of its remit and the employment status of those to whom it applies 41 Whilst there is an obvious and perhaps even close association between the Rules and the Circular nonetheless like the trial judge I too would accept that the underlying purpose of operating Clause 7 3 of the Circular is different to the purpose for which Rule 93 RNS exists The former is a means or measure of assistance to the Board in the discharge of their statutory and common law duties which involve not only the day to day management of the school and the provision of educational needs but also a requirement to provide a safe working place and environment for its staff with due regard to their individual and collective health and welfare 42 On the other hand Rule 93 is a procedure which allows the Minister who is not only the pay master

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  • legal advice But for the future courts may well in cases such as this ask the question why was there no mediation process Why did communication break down Was one party or the other acting unreasonably Should one or other party have taken the initiative These are legitimate questions particularly so as the courts are now frequently being asked to deal with many bullying and harassment cases Such cases obviously require case management if they come to court at all At the outset of litigation the courts may have to enquire whether procedural steps have been taken to avoid litigation Is there a system of mediation or arbitration in being governing the particular employment situation at hand Have the parties availed of such a scheme and if not why not 5 Returning to the appeal at hand one cannot but have some regard to the fact that the appellant from her own point of view felt there was some form of conspiracy against her Her case was that her employers had acted mala fides in seeking a medical assessment prior to allowing her return to work Perhaps she believed that they were engaging in a course of action designed to lead to her compelled resignation on ill health grounds However a sense of apprehension of a conspiracy and objective proof for justifying such an apprehension are two different things 6 As there was to be an assessment of the appellant s medical condition prior to any return to work the appellant s lawyers on instructions objected to one psychiatrist as an assessor That psychiatrist was replaced by another who was designated for the purpose But the appellant herself has not given any explanation as to why she did not attend that alternative psychiatrist who had been retained to carry out just such an assessment One can only speculate as to her thinking on this issue But it meant the situation remained unresolved 7 It is profoundly unfortunate that the appellant has now been engaged in this dispute for almost 10 years of her working life It is fortunate that she has now obtained alternative employment It is not clear that the steps she took to obtain this alternative employment were directly conveyed to her legal advisors however One is left with the impression that the appellant became so immersed in her own problems that she did not always communicate with those who were there to assist and advise her 8 By the time this matter came before this court on appeal fixed positions had been adopted The parties had perhaps become more entrenched in their views Consequently even efforts this court made to resolve the issue albeit at the eleventh hour unfortunately came to nothing 9 S I No 502 2010 Rules of the Superior Courts Mediation and Conciliation 2010 came into effect on the 16th November 2010 It sought to achieve in the ordinary courts a procedure similar to that adopted in the Commercial Court whereby a High Court

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  • by counsel in the appeal as the written submissions in the High Court were sufficient The statement seeking judicial review 9 An applicant who is a litigant in person will often draft a statement of grounds seeking judicial review without legal assistance He she may have to seek assistance with legal terminology A court will extend a degree of latitude to such litigants But the obligation to identify the real issue and to properly frame and plead a judicial review binds all litigants A pleading which does not identify the issue in such a case is a flawed pleading As matters transpired the nub of the appeal as presented to this Court is that the mother says that she could stop the vaccinations because of her unenumerated right as a mother under Article 40 3 of the Constitution She claims a form of constitutional veto which she contended had not been recognised by the Circuit Judge or by the High Court in the following judicial review This point was not adequately pleaded It might be suggested the point emerges very obliquely from the statement of grounds but no more Whatever its merits the point was central to this case The appellant was legally represented for this appeal However no application was made at any stage to amend the statement of grounds to plead this point fully The statement of grounds did not comply with the Rules of the Superior Courts therefore 10 On a number of occasions this Court has reiterated the principle that judicial review proceedings must be conducted within the parameters or framework identified in the statement of grounds the notice of opposition and the order granting leave see most recently A P v The Director of Public Prosecutions 2011 1 I R 729 It cannot be sufficiently emphasised that judicial review proceedings must operate within the framework of Order 84 of the Rules of the Superior Courts 11 It is necessary to point out also that this appeal was heard and delivered at a time prior to the final determination of a petition challenging the validity of the referendum on the Thirty First Amendment of the Constitution Children Bill 2012 At the time of this judgment an appeal against an order of the High Court dismissing the petition is still pending Consequently this Court cannot have regard to the provisions of the proposed amendment as it is not part of the Constitution While there may also be other proposals to amend the law in this area the Court must apply the law as it stands It is also necessary to emphasise that no challenge was brought in these proceedings to the constitutionality of s 11 of the Guardianship of Infants Act 1964 as amended The relationship between the parties 12 The lengthy nature of the relationship between the father the mother and the child is material to this appeal The parents commenced their relationship as long ago as the year 2000 By the time of T B s birth in 2007 the parents had lived together for approximately four years Subsequent to the birth the couple remained together for approximately a further two years Thereafter the relationship broke down and they ceased cohabitating Thus while not coming within the definition of a family as recognised in Articles 41 and 42 of the Constitution the parents and their son had to use Finlay C J s terminology in J K v V W 1990 2 I R 437 nearly all of the characteristics of a constitutionally protected family 13 D B s involvement in his son s life continued after the break up As outlined earlier in 2009 he had applied to the District Court for an order making him a guardian of the child This order pursuant to s 6A 1 of the Act of 1964 as amended was made on consent The section provides that Where the father and mother of a child have not married each other and have not made a declaration under section 2 4 or where the father was a guardian of the child by virtue of a declaration under section 2 4 but was removed from office under section 8 4 the court may on the application of the father by order appoint the father to be a guardian of the child By virtue of this order he enjoys extensive rights of interest and concern per Hamilton C J and Denham J in W O R v E H 1996 2 I R 248 14 In his judgment the learned High Court judge observed that the father had abided scrupulously by his duties regarding access and maintenance and that the mother and father enjoyed shared custody of the child although with most of the day to day care and control being vested in the mother 15 D B was named as T B s father on the child s birth certificate He notified the Registrar of Births of T B s birth on the 10th April 2007 for the purpose of registration The circumstances show that he has been engaged to a very significant degree in T B s life and continues to be so Evidence in the District Court proceedings 16 The unfortunate dispute in issue arose between the mother and father when T B was about to go into primary education The HSE routinely administer booster vaccinations to children at this time The mother objected to the procedure By then she had strongly felt objections and beliefs as to the effect of such injections She contended that as a mother holding rights recognised under Article 40 3 of the Constitution and deriving automatic rights to guardianship under statute she was entitled to exercise a veto on the vaccinations The father applied to the District Court for an order directing that the vaccinations be carried out 17 At the District Court hearing on the 23rd May 2012 the father produced and relied on a HSE booklet advocating the need for booster vaccinations a record of immunisations previously administered by consent to T B and a letter from the child s GP outlining the desirability of the further vaccination procedures The mother did not produce any such evidential material for that hearing The procedure in the Circuit Court 18 The appeal came for mention before the Circuit Court in early June 2012 The matter was adjourned then on the mother s application She was by then legally represented and had the services of solicitor and counsel at the hearing of the appeal in the Circuit Court which came on for hearing two weeks later Both the mother and her legal representatives were aware of the evidential basis upon which the father was making his case The matter obviously received careful attention in the Circuit Court The hearing of the appeal lasted for over two hours The only witnesses were the father and mother Ultimately the judge ruled against the mother on the veto point which her counsel raised After that ruling counsel for the mother then but only then applied to adjourn the case to adduce further evidence as to the basis of her concerns about the practice The judge declined to adjourn the matter further dismissed the appeal and affirmed the District Court order The mother then initiated these judicial review proceedings The issue before the High Court 19 The application before the High Court was for judicial review The sole issue for determination was therefore whether the learned Circuit Judge had acted in excess of jurisdiction or misdirected herself on the law to the extent that any such error went to jurisdiction Evidence on the efficacy or risks of the booster procedures was not material to a judicial review application despite the fact that the mother called such evidence in the High Court The High Court judge permitted some evidence on the merits issue nonetheless Ultimately he rejected the contention that by reason of her constitutional status the mother held a higher position in the hierarchy of rights such as would make her views on the booster injections determinative In so holding the High Court judge relied on the principle of the best interests of the child He put the point this way Section 3 of the Guardianship of Infants Act 1964 mandates that the welfare of the child forms the first and paramount consideration in the making of any order under the Act Where there are situations where guardians both having equal say and input into their child s well being differ to such degree that an agreement cannot be reached it seems to me imperative that a mechanism exist to act in the best interests of the child He concluded that the Circuit Judge had not erred in the exercise of her jurisdiction The mother appealed The family as recognised in the Constitution 20 It is necessary now to consider some of the main authorities which address this issue Can the mother avail of the rights vested in the family as recognised in the Constitution In McD v L 2010 2 I R 199 this Court reaffirmed that the concept of the family as recognised in the Constitution did not encompass the relationship between a mother and a father when they are not and never were married In her judgment Denham J as she then was summarised the case law on this issue Throughout our case law the family is defined as the family based on marriage In The State Nicolaou v An Bord Uchtála 1966 I R 567 Henchy J stated at p 622 For the State to award equal constitutional protection to the family founded on marriage and the family founded on an extra marital union would in effect be a disregard of the pledge which the State gives in Article 41 3 1 to guard with special care the institution of marriage Walsh J stated at p 643 that It is quite clear that the family referred to in Article 41 is the family which is founded on the institution of marriage and in the context of the Article marriage means valid marriage under the law for the time being in force in the State Therefore arising from the terms of the Constitution family means a family based on marriage the marriage of a man and a woman 21 Article 41 3 1 provides The State pledges itself to guard with special care the institution of Marriage on which the Family is founded and to protect it against attack Article 41 of the Constitution cannot therefore afford special protection to the mother in this case as she is unmarried and her constitutional entitlement is based on unenumerated rights under Article 40 3 of the Constitution The mother nonetheless contends that by virtue of the fact her status is so derived this in itself gives her a higher place than the father in the hierarchy of rights in an application to the courts under s 11 of the 1964 Act 22 In McD v L Fennelly J stated a mother outside marriage enjoys a personal right under Article 40 3 of the Constitution But it is very well established that the protection which is afforded to the family not only under Article 41 but also under Article 42 of the Constitution is based on the family as established by marriage Thus to prevail the mother s case would have to rely significantly on a contention that she and her son constituted a family cognisable by the Constitution But this cannot be so as the law provides that the recognition given to the constitutional family is only one that is based on marriage Thus any claim that she has right to veto on vaccination based on the constitutional protection for the family cannot succeed Were the mother to have a veto it would set at naught the father s rights and status as a legal guardian appointed by the District Court The rights of a family recognised under the Constitution 23 Counsel for the mother relies on the well known judgments of this Court in North Western Health Board v H W and C W 2001 3 I R 622 But the facts of that authority are very different from this case In North Western Health Board both the parents objected to a state vaccination scheme They were married There the parents and their children constituted a family under Article 41 and Article 42 and were protected from State intervention in decision making in such matters The parents were united on the question The case concerned an issue between the State and married parents of family cognisable under the Constitution 24 By contrast the issue here is one between two unmarried guardians not one between the State on the one hand and a constitutional family on the other For the District Court or on appeal the Circuit Court to have a role in a dispute of this nature it is not necessary to show a failure of parental duty It is true that Article 42 5 of the Constitution provides In exceptional cases where the parents for physical or moral reasons fail in their duty towards their children the State as guardian of the common good by appropriate means shall endeavour to supply the place of the parents but always with due regard for the natural and imprescriptible rights of the child But there is no evidence of any failure of duty here as properly understood The State is not endeavouring to supply the place of the parents A failure of duty in the sense envisaged under Article 42 5 would necessitate an abandonment of normal parental duties see N v HSE 2006 4 I R 374 This is not the position here There is a clear distinction between an abandonment of parental duty on the one hand and a dispute between legal guardians as to how their duties are to be exercised 25 Section 11 1 of the Act specifically provides that an application may be made by a guardian having regard to any issue pertaining to the child s welfare The matter in issue undoubtedly relates to T B s physical welfare see the definition of welfare as cited earlier The operation of s 11 1 does not proceed on the basis that there has necessarily been any failure of parental duty By virtue of the recognition contained in s 6 4 of the 1964 Act the mother is T B s guardian By virtue of the District Court order of 2007 the father is T B s guardian 26 It is true that a previous judgment of this court affirms that a father of a non marital child does not enjoy the same constitutionally derived right as the mother see J K v V W cited above It is important to emphasise however the extent of the court s finding in that case It is simply that a non marital father does not ipso facto by virtue of his paternal status alone enjoy a constitutional right to guardianship However once the father is appointed a guardian the position substantially alters The concept of guardianship 27 The concept of guardianship encompasses both duties and rights These involve duties to maintain and properly care for a child and rights to make decisions about that child s religious and secular education health requirements and general welfare The right to custody of a child is one of the rights that arises under the guardianship relationship However the concept of custody and guardianship must not be conflated Custody involves the notion of the day to day care of the child The fact that one or other parent enjoys custody does not always in itself mean that by virtue of this fact alone that custodial parent enjoys rights which take precedence over the other parent who is also a guardian It is necessary then to address what is the determining factor The welfare of the child 28 The central issue in all decisions of this nature is the welfare of the child Section 3 of the 1964 Act so provides in explicit terms Thus in applying that principle a judge is acting in accordance with law and is not acting in excess of jurisdiction Not infrequently by virtue of the child being in the custody of one or other parent the circumstances of custody and its consequences may point to the direction as to which way some decision regarding the child s welfare should go This may derive from the links or emotional attachments derived from the fact of custody But this does not derogate from the rights of a non custodial parent who is a legal guardian to be heard and involved in the decision making process By contrast a failure to apply for guardianship rights can have serious consequences in issues such as the right to move a child from one jurisdiction to another without consultation see J McB v L E 2010 4 I R 433 High Court 2010 IESC 48 Supreme Court and Case C 400 10 PPU McB 2010 E C R I 8965 European Court of Justice The extent of the natural father s rights 29 The extent of rights that a non marital legal guardian father enjoys may be measured in accordance with a number of factors Although observing that a natural father enjoyed a right to apply to be appointed as a guardian Finlay C J commented in J K v V W The extent and character of the rights which accrue arising from the relationship of a father to a child to whose mother he is not married must vary very greatly indeed depending on the circumstances The then Chief Justice continued The range of variation would I am satisfied extend from the situation of the father of a child conceived as the result of a casual intercourse where the rights might well be so minimal as practically to be

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  • both in large measure were considered together in the High Court and likewise unless otherwise stated are so treated in this judgment The Affidavit Evidence 13 The factual conflict upon which the applications were moved and the legal assertions which this gives rise to are narrowly focused and can easily be stated it is said on behalf of all of the defendants firstly that the delay was inordinate and that in the absence of justification is also inexcusable and secondly that each defendant suffers not only general prejudice by a dimming of memories but also specific prejudice which in the case of Mr Doyle relates to certain documents allegedly in the possession of the Department of Enterprise in 2001 but which are not now available In the case of the Sunday Times it is stated in this regard that the then Editor is no longer with the company Thus in these circumstances justice demands that the proceedings should be terminated 14 The response whilst denying prejudice at any level offers as a justification for the delay the belief on the plaintiff s part supported by Senior Counsel s verbal advices that given its terms of reference the Tribunal of Inquiry was likely to make findings on or at least to explore matters which would be directly relevant to these proceedings accordingly a decision reasonably arrived at was made to defer their further prosecution until the Tribunal had concluded that part of its brief However as by December 2005 it was self evident that the work of the Tribunal still had some distance to run it was decided to proceed with the actions 15 This explanation which as a matter of fact was never communicated to the defendants is also contested by them in that in their view on any reading of the Tribunal s terms of reference it was highly unlikely that it would ever involve itself in matters relating to the actions in suit This in turn is rejected by the plaintiff who asserts the contrary position 16 This was the state of the evidence upon which the trial judge was asked to determine the issues Judgment of the High Court 17 In a combined judgment dealing with both applications the learned trial judge commenced his judgment by making a number of general observations and findings He held that no inference could be drawn from the correspondence to the effect that the defendants had agreed to either a deferral or a reactivation of the proceedings that it was not reasonable for the plaintiff to expect that the Tribunal would make findings relevant to the issues in the proceedings that the issues calling for resolution involved matters both of fact and law and that no substantial prejudice in the classical sense had been established by the defendants He further noted evidently in the context of memory recollection that there was no plea of justification or fair comment in either action 18 Proceeding on that basis and applying the tripartite analysis set out in Primor plc v Stokes Kennedy Crowley 1996 2 I R 459 Primor the Court found that the delay complained of particularly in a libel action which by its nature imposes an even greater sense of urgency on the plaintiff was inordinate Further when looking at whether the delay was inexcusable or excusable as the case may be the trial judge referred with approval to the High Court s judgment in Comcast International Holdings Inc Ors v The Minister for Public Enterprise Ors 2007 I E H C 297 However by the hearing date of this appeal the Supreme Court in Comcast had taken a view different from that of the learned High Court judge In addition Stephens v Paul Flynn Ltd 2008 4 I R 31 Stephens was cited so as to emphasise a viewpoint that delays heretofore defensible may no longer be so On such basis the delay was also inexcusable 19 The third aspect of the test was then considered again by reference to Primor and also having regard to what Fennelly J had said in Anglo Irish Beef Processors Ltd v Montgomery 2002 3 I R 510 at p 520 Being satisfied that no specific prejudice existed the learned judge categorised what had been established in that regard as being marginal or potential Accordingly in all of the circumstances an order conditional on terms permitting the action to proceed was appropriate These conditions were i that the costs liability should fall on the plaintiff as and from the 7th April 2000 being one year after the defence was delivered as that is when the legal advice might first have been reviewed ii that any outstanding issues on Discovery be listed within 21 days and iii that the case be certified for hearing by the 5th June 2008 Appellants Submissions 20 The appellants whilst wholly supportive of the inordinate and inexcusable delay findings take issue with the trial judge s conclusion on the balance of justice test alleging that a failure to take any step in the action for over five years nor any meaningful step for over eight years justified an unconditional dismissal of the proceedings They agree that the Primor test remains appropriate but urge that in the application of its criteria there should be a tightening up in the manner first mentioned by Hardiman J in Gilroy v Flynn 2005 1 I L R M 290 and later by the Supreme Court in Stephens Such an approach was they say reaffirmed recently by Clarke J in the Supreme Court in Comcast International Holdings Inc Ors v Minister for Public Enterprise Ors Persona Digital Telephony Ltd Anor v Minister for Public Enterprise Ors 2012 I E S C 50 Comcast and although in the same case McKechnie J adhered to the view espoused by Geoghegan J and Macken J in Desmond v M G N Ltd 2009 1 I R 737 M G N the former if necessary should be preferred 21 It is also submitted that the trial judge did not give sufficient or appropriate weight to a number of factors when adjudicating on the balance of justice issue In this regard it is said that the plaintiff should not be permitted with impunity to tactically defer the further prosecution of his action at least without informing the defendant so that such defendant has an opportunity to adjust his position if he so decides Such a move even if supported by legal advice should strongly hold against him Further in proceedings involving a cause of action such as libel it is particularly incumbent on the moving party to process the action with all due expedition and a failure to do so will not be lightly excused Keane C J in Ewins v Independent Newspapers Ireland Ltd Anor 2003 1 I R 583 Ewins at p 590 22 In addition it was said that there was a further matter of some significance which should not be disregarded It relates to what was alleged to have been a campaign of litigation engaged in by the plaintiff against Times Newspapers Ltd which has involved the institution of several other libel actions arising out of articles published by it from 1997 to 1999 These actions like the instant proceedings were not progressed with any dispatch such that the High Court in June 2009 dismissed them for want of prosecution Although Notices of Appeal were filed in response to such decision the same were without explanation unilaterally withdrawn in November 2012 It was alleged that this pattern of conduct had adversely impacted on the publisher s right to free expression under Article 40 6 1 i of the Constitution and Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Protocol 1950 more commonly known as the European Convention on Human Rights the Convention and should decisively tilt the issue of justice in favour of this appeal 23 Finally it is also claimed that the High Court s assessment on the question of prejudice leading to a finding that it was but marginal or potential did not accurately reflect the evidential situation of the defendants and in any event it was positioned far too centrally within the third limb of Primor In reality there was evidence of real prejudice which was somehow overlooked in the analysis 24 In all of the above circumstances the appeal should be allowed Respondent s Submissions 25 The plaintiff s response which is premised on his full support for and acceptance of the High Court s decision can as a matter of summary be described as follows i that the learned trial judge gave due consideration to all relevant matters in accordance with Primor which is the correct test accordingly the resulting exercise of his discretion should not be disturbed by this Court Martin v Moy Contractors Ltd Unreported Supreme Court 11th February 1999 and Geoghegan J in M G N at p 743 ii that wherever ultimately the appropriate measure or standard of expedition should be set for and applied to either a defamatory action such as this or all cases the courts regardless of that outcome should continue to exercise the dismiss jurisdiction most sparingly and should do so only in the most clear cut of cases Sun Fat Chan v Osseous Ltd 1992 1 I R 425 iii that there was a genuine reason for the decision not to proceed a reason supported by experienced Counsel specialising in this area of law That fact and a review of that decision in December 2005 renders the delay excusable Even however if such reason is not accepted as justifying the delay the same nonetheless represents a factor favourable to a continuation of the proceedings Comcast even though distinguishable on the facts in several ways is supportive of this general position See in particular the judgment of Denham C J iv that the Court s assessment on the prejudice issue was fully in conformity with the evidence and in effect was the only conclusion available v that if the action is not permitted to proceed the pleas in mitigation which closely resemble a justification plea and which reflect badly on the plaintiff s character will remain unchallenged vi that in several ways the appellants have acquiesced in the delay vii that the additional urgency spoken of in the context of libel actions must be seen in context viii that the reference to the plaintiff as being involved in a campaign of litigation against Times Newspaper Ltd is without fact or substance No evidence of any description was presented to this effect and the first reference thereto is to be found in the appeal submissions made to this Court In such circumstances such should be entirely disregarded and finally ix that in any event the stark consequences of a dismissal involving the immediate termination of the proceedings would be excessive and in the presenting circumstances not justly warranted Judgment 26 During the course of the hearing Counsel on behalf of the plaintiff clarified that his client accepted the High Court s finding of inexcusable delay having already done so in respect of inordinate delay Thus the appeal is a single issue one only and falls to be determined in accordance with the third limb of Primor The sole question therefore is whether justice favours a continuation of the proceedings or their immediate termination with irreversible effect 27 Before outlining my conclusion on this issue which must of course be based on the facts specific to this case there are a number of perhaps general matters which it is convenient to deal with at this stage 28 As can be seen from the above summary of the submissions some discussion took place about the desirability or otherwise of readjusting the weight to be attached to various factors commonly found in this type of application In the process a number of cases were opened where this point has been judicially commented upon Whilst it is said that there is some divergence on the issue it remains unclear what the substance of these differences might be but in either case such would be unlikely to have much impact on the balance of justice test In any event for the purposes of this case it is in my view not necessary to further consider the issue as on any approach broad or narrow I would adopt the same view and arrive at the same conclusion as I have Therefore on this basis I do not believe that further debate is required as the appeal can be determined in this manner 29 As I read the documentation it seems to me that the applications moved under O 122 r 11 of the Rules of the Superior Courts 1986 were neither set up nor legally advanced in such a way as would require from this Court a consideration of in what circumstances if any an action might be dismissed for want of prosecution purely on the grounds of delay in other words on delay simpliciter These applications were opened and outlined along traditional grounds and debated by reference to established principles which call into play several matters including the question of prejudice Therefore I would propose to treat the applications as they were presented and to determine them on the basis indicated 30 The third matter which I wish to refer to relates to the sense of objection even grievance which the Times Newspaper Ltd purports to have see para 22 supra arising out of the number of legal actions which Mr Desmond has instituted against it throughout the years It appears that all such actions which are based on various articles published from 1997 to 1999 arose out of the Moriarty Tribunal or else were related to events or personnel associated with its inquiry Several pages of submissions on this appeal are taken up with a detailed history of those proceedings and with a very definite assertion that their institution had in the first place an ulterior motive 31 Mr Desmond entirely disputes what is alleged and irrespective of where the merits or truth may lie goes on to make the point that none of the allegations are supported by evidence and moreover that they have only been raised for the first time in the appeal submissions Basically it is his contention that in such circumstances he should not have to deal with them whilst at the same time asserting that he has a good answer if necessary 32 I agree with his submission there is in fact no evidence at all in the affidavits about this matter and neither was it aired in any way in the High Court Evidently it does not feature in the resulting judgment To assert such matters now for the first time in the submissions to this Court is not appropriate In such circumstances it would be unfair to have regard to them 33 That leads me back to Primor whose principles were recently re affirmed by this Court in Comcast and in particular to the third limb of the analysis Insofar as is material the test under this heading was summarised by Hamilton C J at pp 475 and 476 of the report as follows a b c even where the delay has been both inordinate and inexcusable the court must exercise a judgment on whether in its discretion on the facts the balance of justice is in favour of or against the proceeding of the case d in considering this latter obligation the court is entitled to take into consideration and have regard to i the implied constitutional principles of basic fairness of procedures ii whether the delay and consequent prejudice in the special facts of the case are such as to make it unfair to the defendant to allow the action to proceed and to make it just to strike out the plaintiff s action iii any delay on the part of the defendant because litigation is a two party operation the conduct of both parties should be looked at iv whether any delay or conduct of the defendant amounts to acquiescence on the part of the defendant in the plaintiff s delay v the fact that conduct by the defendant which induces the plaintiff to incur further expense in pursuing the action does not in law constitute an absolute bar preventing the defendant from obtaining a striking out order but is a relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim the weight to be attached to such conduct depending upon all the circumstances of the particular case vi whether the delay gives rise to a substantial risk that it is not possible to have a fair trial or is likely to cause or have caused serious prejudice to the defendant vii the fact that the prejudice to the defendant referred to in vi may arise in many ways and be other than that merely caused by the delay including damage to a defendant s reputation and business 34 It is accordingly clear that the conduct of all parties is relevant as is of course prejudice to the defendants but above all the question is one of fairness and whether having regard to all of the circumstances the possibility of a fair trial is imperilled Before elaborating on these issues however the delay complained of must first be noted 35 It will be recalled that the offending publications took place in February and March 1998 Proceedings were instituted pretty much immediately with the reply to the defence having been filed within 12 months From April 1999 until October 2000 there was some correspondence between the parties regarding Discovery No point is therefore taken on this period 36 From October 2000 to December 2005 when a Notice of Intention to Proceed was served is the 1st period in issue a further

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  • 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 is concerned Ultimately Fennelly Hardiman and Denham JJ have said in the various cases these are the tests that have to be applied It is significant that the only evidence that has been proffered is that of the appellant There is no satisfactory evidence or link in relation to the evidential chain the absence of which would make me come to the conclusion that the appellant has been denied the opportunity of a fair trial I also think that the matters complained of can be put to the various witnesses and commented upon at the trial of the action and that ultimately the trial will be in the hands of the trial judge and the trial judge will be in a position to deal with the matters that are raised and the comments that are raised Therefore I would dismiss the application Notice of Appeal 17 The appellant filed a notice of appeal on the 16th December 2008 The specific grounds of appeal were that the learned High Court judge had misdirected himself in law or in fact or on a mixed question of law and fact as follows 1 That the learned High Court judge erred in not holding that the D P P had acted contrary to natural and constitutional justice and contrary to fair procedures in creating a real risk of an unfair trial in a Failing to conduct finger print testing on the steering wheel which the appellant allegedly pulled on the 14th of August 2005 thereby causing a car crash which resulted in the death of one passenger and injury to others b Failing to ensure that all probative evidence in the hands of An Garda Síochána including the two cars involved in the crash were preserved for inspection and examination by or on behalf of the appellant and for the trial of the offence alleged c Failing to seek out and preserve probative evidence in respect of the consumption of alcohol by Lyndsey Hudson the driver of the car in which the appellant was a passenger and in particular in failing to require her to permit a designated doctor to take a specimen of her blood or her urine for that purpose 2 That the learned High Court judge erred in not holding that the D P P had acted contrary to natural and constitutional justice and contrary to fair procedures in creating a real risk of an unfair trial in not affording the appellant an opportunity to inspect and have expertly examined the cars involved in the collision he is alleged to have caused and or the steering wheel he is alleged to have pulled thereby depriving him of the opportunity of adducing expert evidence in respect thereof 3 That the learned High Court judge erred in failing to hold that the failure by the D P P to carry out appropriate forensic testing and in particular fingerprinting the steering wheel and testing the driver of the car for alcohol consumption and to make available and preserve from destruction or loss the relevant physical evidence of the two cars involved in the collision all potentially probative in respect of the alleged offence and or capable of assisting the appellant in establishing his innocence gives rise to an apprehension of bias in the investigation and presentation of evidence on the part of the objective bystander 4 That the learned High Court judge erred in failing to hold that the conflicts of evidence in the prosecution case taken in conjunction with the failure to seek out and preserve all possible forensic evidence deprived the appellant of fair procedure and a fair trial and created a real risk of an unfair trial and in further holding that those conflicts were capable of being fairly and or properly dealt with by the trial judge 5 That the learned High Court judge erred in holding that the onus on the appellant had not been discharged and that the only evidence proffered in favour of the reliefs sought was that of the appellant and in failing to take into consideration the conflicted and incomplete nature of the prosecution evidence in this regard 6 That the learned High Court judge erred in holding that there is no satisfactory evidence or link in the chain of evidence the absence of which would mean an unfair trial 7 That the learned High Court judge erred in holding that matters complained of by the appellant herein could be dealt with at 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

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  • will now be aware that a charge of causing death by dangerous driving is one of the few offences not requiring specific intent in which a person of good character is likely to receive a substantial prison sentence for a first offence especially if the circumstances are aggravated by drink or speed It was in this context that the allegation against Mr Wall was first made Position of persons in the car 63 It seems essential to the prosecution case against Mr Jason Wall that he was positioned in the middle of the back seat of the car enabling him to reach forward and touch first the radio and the steering wheel according to Ms Hudson 64 In the statement referred to Ms Hudson described the positioning of the persons in the car as follows Emma Wall was sitting in the front passenger seat Ciara Brack was behind me Jason was in the middle in the back and Stephen was behind Emma 65 Turning to the actions she then for the first time alleged against Jason Wall she said Jason leaned through the two front seats He turned up the radio 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 66 In the immediate aftermath of the accident according to Garda Keogan Stephen Wall spoke to him on the scene and He Stephen told me he had been sitting in the rear of the Honda Civic in the middle 67 The Guard observed that he was dazed and confused and had a cut to his head 68 In Stephen Wall s statement taken on the 30th August 2005 he described the position of persons in the car as follows There was Lyndsey the driver my sister Emma Wall in the passenger seat I was in the back in the middle Ciara Brack was on my right behind the driver and Jason Wall was on my left behind the passenger Emphasis added 69 According to Ciara Brack from what I can remember Lyndsey was driving Emma Wall was in the passenger seat I was behind Lyndsey in the back Stephen Wall was in the middle and Jason Wall was on the far side behind Emma Emphasis added 70 While Ms Hudson describes Jason as leaning through the two front seats Stephen Wall says that he Jason leaned over the passenger chair He does not allege that he interfered with the radio Date of charge and associated events 71 The appellant was not charged with these offences until July 2006 He was returned for trial on the 8th September and was then served with the Book of Evidence 72 Six days later on the 14th September 2006 the appellant s solicitor wrote to the prosecution s solicitor saying amongst other things Please note that the defence rely on the prosecuting authority to ensure that full enquiries are made in relation the availability of any evidential sources such as video recordings and any physical evidence that exists is obtained in order that these categories of evidence may be available for inspection by the defence 73 Subsequently on the 21st December 2006 the defence solicitor sought Copy of fingerprint analysis carried on the steering wheel of the car driven by Lyndsey Hudson in which Jason Wall was a passenger and or documentation relating to the taking of fingerprints 74 After a number of email reminders this request was repeated on the 23rd January 2007 The solicitor asked on that occasion whether the car was available for inspection 75 On the 20th February 2007 the defence solicitor was informed for the first time that No fingerprint analysis was taken from the steering wheel 76 In response to this on the 6th March 2007 the defence solicitor said amongst other things We note with surprise and concern that no fingerprint analysis at the steering wheel was carried out in the course of the investigation of this matter The allegation against Mr Wall namely that he pulled the steering wheel of the car was known to the investigating Gardaí within at most four days of the incident It must have been absolutely clear to them that the presence or absence of Mr Wall s fingerprints on the steering wheel had the potential to be a highly material and probative piece of evidence We note that in our letter to you of the 23rd January last and earlier correspondence we asked for a copy of the fingerprint analysis carried out and all documentation relating to the question of taking fingerprints In your letter of the 20th February you simply say that no fingerprint analysis was taken This also appears to indicate that there is no documentation relation to the taking of fingerprints We would ask you to note that we have the clearest instructions from Jason Wall that he did not grab pull or in any way interfere with the steering wheel of the car on the night in question we have advised him that the failure of the gardai to carry out basic elementary fingerprint analysis of the steering wheel appears on the face of it capable of significantly impairing his ability to defend himself and to significantly breach his entitlement to fair procedures during the course of the trial 77 The solicitor went on to request an explanation for the failure to fingerprint the car which has not been forthcoming to this day Applicable Law 78 The topic of missing evidence or unobtained evidence has been the subject of a considerable number of decisions of the Superior Courts The modern authorities on the issue date from the decision of Mr Justice Lynch in Murphy v Director of Public Prosecutions 1989 ILRM 71 In what follows I propose to refer only to what is directly relevant 79 In Savage v Director of Public Prosecutions 2009 1 IR 185 Fennelly J summarised the modern law as follows a It is the duty of the prosecution authorities in particular An Garda Síochána to preserve and maintain all evidence which comes into their possession as having a bearing or potential bearing on the issue of guilt or innocence of the accused This duty flows from their unique investigative role as a police force see Braddish v Director of Public Prosecutions 2001 3 IR 127 The extent of which that duty extends to seeking out evidential material not in the possession of the Gardaí does not arise in the present case but see Dunne v Director of Public Prosecutions 2002 2 IR 305 b The missing evidence in question must be such as to give rise to a real possibility that in its absence the accused will be unable to advance a point material to his defence this is like the garda obligation to retain and preserve evidence to be interpreted in a practical and realistic way and no remote theoretical or fanciful possibility will lead to the prohibition of a trial see Dunne above c The fact that the prosecution intends to rely on evidence independent of the missing evidence at issue in order to establish the guilt of the accused does not preclude the making of an order of prohibition In Dunne above the prosecution intended to rely on a confession This did not defeat the applicant s complaint of the failure of the Gardaí to take possession of the video tape covering the scene of the robbery 80 In giving the judgment of the Court in Braddish I said at p 133 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 This 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 it important to bear in mind that the evidential items to which the foregoing applies are not only those with a directed established evidential significance but include those which in the words of Lynch J in Murphy v DPP 1989 ILRM 71 at 76 may give rise to the reasonable possibility of securing relevant evidence 81 The passage goes on to adopt in the context of the criminal case the standards applicable to civil discovery as laid down in Sterling Wintrope Group Ltd v Farben Fabriken Bayer AG 1967 IR 97 Forensic evidence 82 All of the foregoing applies with particular force to forensic evidence In Dunne v DPP 2002 2 IR 305 I said We are long habituated to the idea that technology and science can snare the criminal From the familiar photograph and fingerprint to the microscopic fragment of hair or tissue the role of their products in detection and the proof of guilt has entered into the public consciousness The work of the criminalist the SOCO chemist the photographer above all the DNA expert are firmly established The law itself has changed to accommodate them A suspect may be fingerprinted photographed compelled to give up his clothing and possessions for testing and to supply samples of his hair tissue or bodily fluids under a variety of statutes Apart from specific powers the essential criteria for such testing is set out in the Criminal Justice Forensic Evidence Act 1990 in Section 2 5 b that there is reasonable ground for believing that the sample will tend to confirm or disprove the involvement of the person from whom the sample is to be taken in the offence See also the Road Traffic Act 1994 Sections 12 15 the Measuring and Photography of Prisoners Regulations 1955 made under the Penal Servitude Act 1981 Criminal Justice Act 1984 Sections 4 6 and 28 Criminal Evidence Act 1992 Section 16 Criminal Justice Act 1997 Sections 7 11 12 19 the Health Safety and Welfare Act 1989 Section 34 None of this is controversial If science or technology can provide certainty in matters of great importance which would otherwise be determined on human testimony which may be fallible or worse who but a guilty man would not willingly invoke its aid On this theory both individuals on whom suspicion has fallen mandatorily and whole populations voluntarily have been submitted to scientific and technological tests The balance has long been struck in favour of the use of technology in the search for the perpetrators of crime even when the processes involved are minimally invasive or transiently painful or undignified for innocent people The greater good prevails This development is due in large measure to the development of techniques of previously unimagined sophistication from the telephoto lens and the video camera to the extraordinary precision of DNA analysis Additionally and at much the same time our faith in some older techniques has been undermined From visual identification to alleged confessions the last three decades have provided excellent reason for avoiding over reliance on them 83 Dunne was a case where a robbery had taken place in a premises undoubtedly equipped with a video camera There was simply no evidence as to whether the Gardaí had ever sought or obtained the tape from the video camera Commenting on this the judgment continued This case does not challenge any of these above mentioned developments It seeks to take them further It raises the question is it open to the authorities on whom such wide powers and resources have been conferred by law or by technology to decide in a particular case that they will not use them Alternatively if for no stated reason the authorities simply do not avail of some technical assistance in the detection of crime which might have inculpated or exculpated the suspect is this relevant to their ability to prosecute him using evidence of a more traditional sort Fingerprints 84 The Dunne case was about video footage an obviously directly relevant sort of evidence once it was established that the location of the crime covered by a video camera Much of the balance of the judgment in Dunne relates specifically to video evidence 85 Fingerprint evidence the technology of which goes back to the latter part of the 19th century is perhaps the oldest and best established sort of forensic evidence Its significance was considered by the Superior Courts in Murphy v DPP 1989 ILRM 71 86 In Murphy the applicant was charged with being the driver of a stolen car which was wrecked in a collision He denied this though he admitted being a passenger in the car The Gardaí did not carry out any fingerprint examination on their own behalf and intended to rely solely on Garda visual identification When the applicant s solicitor sought to get access to the car for the purpose of his own forensic examination he was informed by the Gardaí that the car as in the present case had been given to an insurance company and destroyed 87 The applicant therefore sought to restrain his prosecution 88 On these facts Lynch J restrained further prosecution of the applicant holding 1 Evidence relevant to guilt or innocence must so far as is necessary and practicable be kept until the conclusion of the trial This principle also applies to the preservation of Articles which may give rise to the reasonable possibility of securing relevant evidence In this regard the learned judge followed Dillon v Byrne and Davies 1887 20 LR 300 2 An accused person must be afforded every reasonable opportunity to inspect all material evidence which is under the control and power of the prosecuting authorities in order adequately to prepare his defence 3 The Gardaí ought not to have parted with possession of the car without examining it forensically or alternatively they should have notified the applicant s legal representatives of their intention of giving it back to the insurance company 4 The Gardaí s actions in the circumstances amounted to a breach of the rules of fair procedures in that they deprived the applicant of the reasonable possibility of rebutting the evidence against him Emphasis added 89 In this connection the learned trial judge applied State Healy v Donoghue 1976 IR 300 90 In the course of the judgment Mr Justice Lynch held Nevertheless the Gardaí s action in the circumstances amount to a breach of the rule of fair procedures The applicant has accepted that he was in the stolen car unlawfully when it crashed but he has denied driving it The Court of trial will now only have evidence of garda visual identification and the applicant s denial upon which to base its decision It has in effect been deprived of possible corroborative evidence of the applicant s denial Consequently I am satisfied that the applicant s opportunities of defending his case have been materially effected to his detrement 91 I may say that all of the learned judge s observations about that case in the paragraph just quoted appear to me to apply to the present case as well 92 Lynch J continued The authorities establish that evidence relevant to guilt or innocence must so far as is necessary and practicable be kept until the conclusion of the trial These authorities also apply to the preservation of articles which may give rise to the reasonable possibility of securing relevant evidence 93 It appears to me that Murphy is a case of great importance in the present circumstances Like this case it was about a failure either to examine a motor vehicle for fingerprints or to permit the defendant to do so in good time It will be seen from the last citation in particular that it appeared axiomatic to Mr Justice Lynch that examining the vehicle for fingerprints would lead to a reasonable possibility of securing relevant evidence If that were so in that case it is equally so here Indeed having regard to the notorious and very long established prospects of obtaining inculpatory or exculpatory evidence from fingerprint examination it seems to me axiomatic that it should have taken place once the driver s allegation that the collision was not her fault but was caused by the defendant s action in grabbing the steering wheel and manipulating it became known But it did not take place because the Gardaí quite apart from not telling the appellant against whom the allegation was made did not even tell their own Garda Collision Expert who examined the car five days later in complete ignorance of what Ms Hudson had alleged Fingerprints the State s response 94 The State argued that it has not been established on the evidence that a forensic examination of the car for fingerprints gave rise to a reasonable possibility of securing relevant evidence Braddish The difference between this case and the Murphy case where fingerprints were also an issue is that in Murphy the vehicle was a stolen vehicle where it was alleged that the accused drove the vehicle The only evidence was visual identification 95 It is omitted from this summary that the defendant in Murphy admitted to being a passenger unlawfully in the vehicle but disputed that he was the driver 96 The prosecution continued The only evidence was visual identification Given that the vehicle was stolen the presence of the accused s fingerprints on the steering wheel would have a materiality which it does not have in this case where the appellant was in the car on a daily basis over a very protracted period and had sat in the driver s seat 97 It is certainly true that the appellant had been going out with Lyndsey Hudson for about a year before the accident therefore had often been in her father s car which she seems to have driven a good deal It is true and is agreed that he had never driven the car but Ms Hudson claimed that on a number of occasions he sat in the driver s seat 98 The prosecution go on to cite from my judgment in McFarlane v DPP 2008 4 IR 117 where it is said that In order to demonstrate that risk i e the risk of an unfair trial there is obviously a need for an appellant to engage in a specific way with the evidence actually available so as to make the risk apparent 99 The prosecution denied that the appellant has done so in the present case The prosecution however has itself wholly failed to engage with the question of why the car was destroyed before telling Mr Wall of the driver s allegation 100 The prosecution considerably emphasised the connection between the appellant and Lyndsey Hudson and the fact that as a result of it he had often been in the car 101 It appears to me that that circumstance would make it unremarkable that his presence in the car might leave traces in the form of fingerprints or otherwise But the absence of his fingerprints or other forensic traces on the radio dial and still more relevantly on the steering wheel might be very significant evidence with which to contradict the allegations against him which are contained solely in the evidence of Lyndsey Hudson and very belatedly by Stephen Wall The relevant evidence of the former was provided for the first time some days and of the latter some months after the fatal accident In each case the witnesses allegedly incriminating version followed an earlier and inconsistent version of events 102 It is not incumbent on the appellant to establish to a mathematical certainty that the missing evidence in the case would definitively establish his innocence If that were the criterion for relief in a case such as the present then it could never be met because by definition the missing evidence is not available That is why the case is to be decided in terms of the reasonable possibility of securing relevant evidence as Lynch J put it in Murphy 103 The prosecution further say that it is possible that the steering wheel they made no reference to the radio dial might be of a material which would not take fingerprints This point seems utterly lacking in reality The appellant referred the Court to the transcript of the proceedings in this case before the Circuit Court There it is recorded that as long ago as 2007 counsel for the prosecution told the learned circuit judge before whom the criminal case came that the Gardaí were in the process of testing a car of identical make and model to see if the steering wheel would take fingerprints Nothing has been heard of the result of these tests carried out some six years ago and counsel for the State was not able to put the matter further even on the hearing of this appeal The State Solicitor had no instructions on the point It therefore appears on the basis of what State counsel said that the Gardaí are affirmatively aware of whether or not the steering wheel would take fingerprints They have not shared this information with the State solicitor or with the Court If the result of the tests they carried out supported the view that the steering wheel could be grasped and turned without leaving fingerprints it is inconceivable that that evidence would not have been deployed in the High Court or on this Appeal Their silence speaks volumes on this point 104 It appears to me that it has been clearly established that the appellant has lost the real possibility of developing evidence to rebut the allegations of Lyndsey Hudson and Stephen Wall which is the only evidence against him on these serious charges The action of the Gardaí themselves in asking the appellant to provide them voluntarily with his fingerprints seems to me to establish that in their view at that time a fingerprint comparison might have been useful to the investigation The test which the prosecution told the learned circuit judge that the Gardaí were carrying out on the steering wheel of a car of identical make and model seems to me to confirm that even if the test itself were never carried out or the results for some reason withheld There is no third possibility 105 There is no doubt that had Jason Wall been charged with these offences before the vehicle was destroyed he would have been entitled to examine it or more likely to have it professionally examined on his behalf This is so because on the authority of Murphy cited above there is a reasonable prospect that such examination could yield material useful to the defence It arises from the State s own allegation that Mr Wall grasped and turned the steering wheel with his bare hand 106 It is possible that Mr Wall would have been entitled to have the car examined before he was charged after he had been told of the allegation that the driver was making against him He would surely have been able at that stage to prevent the car being destroyed without such an examination But the car had already been destroyed months before he was told anything at all by the Gardaí or was aware of any reason to examine the vehicle or its steering wheel This circumstance stymied any prospect of forensic examination by the Defence 107 The request by the Gardaí for Mr Wall to provide his fingerprints on a voluntary basis made after they had told him of the driver s allegation demonstrates their view that a fingerprint examination of the car had a reasonable prospect of assisting justice in the circumstances of the case This request was made it appears between five and six months after the driver had made her allegation This in turn seems to suggest that the Gardaí who made the request were unaware that the vehicle had been destroyed They would hardly have concealed that information from the man whose prints they were seeking on a voluntary basis if they themselves knew it 108 If the above propositions are accepted it appears to follow that Mr Wall has been deprived of a legitimate measure of defence and one which offered a reasonable prospect of helping his defence that is how the test is formulated in Murphy by reason of the fact that the car was destroyed before the driver s allegation was communicated to him by the Gardaí 109 That is plainly a state of affairs for which Mr Wall can bear no responsibility The Gardaí have offered no explanation of any kind for it and I am at a loss to think of one even on a speculative basis We do not even know who released the car for destruction The Gardaí know this but they have not shared the information 110 It appears to me therefore that Mr Wall has suffered the loss of a reasonable prospect of evidence which would favour his defence There is ample authority for the proposition that that entitles an applicant to relief I would therefore grant the relief sought The United States authorities 111 Because we were not referred to these authorities I have not in any way grounded my conclusion on them I agree with O Donnell J that the U S and other jurisdictions law on this topic may be useful to examine As he elegantly puts it the Irish jurisprudence in this area and others can benefit from a careful analysis of the law of other jurisdictions and not least the lucid and penetrating analysis often to be found in the jurisprudence of the Supreme Court of the United States 112 I would add only that the decisions of other Courts in the United States are often persuasive as well and that the vast size of that jurisdiction throws up factual situations which may take longer to come to attention in a smaller jurisdiction like ours In particular the appalling consequences in two specific cases of the prosecution action in losing or concealing evidence is salutary to record Because these materials were not argued or presented before us I have set them out in Appendix II Another view 113 In the course of reaching the contrary conclusion to that proposed by me the Murphy case is sought to be distinguished on the basis that the present case unlike Murphy is not a case where the Gardaí were directly on notice of any requirement for a forensic fingerprint examination within days of the event giving rise to the prosecution and also on the basis that unlike Murphy the present is not a case where the guards disposed of or allowed the destruction of the car knowing that a request for forensic examination had been made by the appellant s solicitor 114 I am disturbed that Murphy is sought to be distinguished in this way It is perfectly true in the present case no request for a forensic fingerprint examination was made within days of the crash and equally true that the guards had not been told of the need for a forensic examination of the car before its destruction But neither Mr Jason Wall nor his solicitor could have done either of these things before the car was destroyed for the simple reason that the Gardaí had not told them that there was any allegation whatever against Jason Wall before they permitted the car to be destroyed Accordingly the matters mentioned are par excellence distinctions which do not amount to a difference from the ratio of Murphy Because of the failure to make him aware of the driver s allegation it is obvious that Mr Wall was never at any time before the car was disposed of in a position to arrange that the Gardaí were put on notice of the requirement for a forensic examination By the time Mr Wall was told of the allegation the car was lost and gone for ever 115 I am frankly astonished that his inability to demand a fingerprint examination which inability was caused by the Gardaí themselves should be used as a reason for denying him relief I consider this to be a classic catch 22 I consider that it risks grave unfairness to the appellant to reason thus or to distinguish Murphy on that basis 116 In Murphy v DPP 1989 ILRM Lynch J held The Gardaí ought not to have parted with possession of the car without examining it forensically or alternatively they should have notified the applicant s legal representatives of their intention of giving it back to the insurance company 117 In my view this finding makes it impossible to distinguish Murphy as my colleague seeks to do on the basis that in that case the car had been disposed of while a positive request for the examination of the vehicle was outstanding having been made by the defendant s solicitor 118 At the risking of stressing the obvious I repeat that that position could not have been replicated in the present case by reason of the Gardaí s action in making the car available for destruction without telling either the appellant or their own Garda Collision Expert of the allegation made by the driver But the finding quoted above makes it clear that even without such a request which the Gardaí themselves prevented from being made they ought not to have parted with the car without examining it forensically or alternatively they should have notified the applicant s legal representatives of their intention of giving it back to the insurance company 119 By reason of these two failures again in the words of Lynch J The Gardaís actions in the circumstances amounted to a breach of the rules of fair procedures in that they deprived the applicant of the reasonable possibility of rebutting the case against him 120 Later the question is raised what was the position in the investigation here at the end of September 2005 This question is answered as follows 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 applicant The forensic test reports lay the blame for the accident squarely on the driver There is no evidence that the Gardaí then 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 them blamed the appellant Obviously the investigation subsequently evolved The Gardaí clearly came to the view that the appellant should be interviewed There is no evidence as to when they came to that 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 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 duty of the Gardaí at the relevant time that is before the end of September 2005 The possibility of there being such relevant evidence is raised in this appeal but no more 121 To my mind this analysis can only be described as extraordinarily indulgent of the garda position It is of course true that there is no evidence about when the Gardaí decided to interview the appellant That is a fact within the exclusive knowledge of the Gardaí and they have elected to withhold it from the Court The omission to request fingerprint examination of the steering wheel was directly caused by the Garda action of parting with the car before telling Mr Wall what had been alleged They did not tell their own expert either They have given no explanation of either failure I do not know why emphasis is placed on the position at the end of September 2005 when the fact is that the Gardaí parted with possession of the car on the 29th August 2005 eleven days after Lyndsey Hudson made her allegation against Jason Wall We do not know who specifically gave the car away and therefore do not know what reasons specifically he or she had for doing so There is no explanation as to why the Gardaí parted with possession of the car without communicating the fact of the allegation to Sergeant Finn the forensic collision investigator who was going to examine it or to Jason Wall himself That is also within the Gardaí s exclusive knowledge and they have likewise seen fit to withhold it from the Court 122 The same judgment says There is no evidence that the Gardaí then placed substantial credence in Lyndsey Hudson s uncorroborated allegation which on its face might appear an unusual explanation for what happened 123 Once again the Gardaí have elected to say nothing at all as to what degree of credence they placed on Lyndsey Hudson s allegation But it must be borne in mind that this was not a trivial case it was an investigation into a road traffic event in which a young woman lost her life The case looked black against Lyndsey Hudson the collision had occurred on her incorrect side of the road The Garda collision investigator blamed her for the crash She had stated that she could not say how her car came to be on the incorrect side road That no doubt is why she was interviewed under caution The law on the need to caution a person being questioned has been set out above so far as relevant She then for the first time made the allegation that Jason Wall had deprived her of control of the car by grabbing the steering wheel and turning it to the right This was plainly an allegation of a very serious kind and has led to Mr Wall being charged with an offence with a maximum penalty of fifteen years imprisonment Having heard what she alleged the Gardaí did not charge Ms Hudson though the caution suggests they had previously made up their minds to do so This is consistent only with their placing significant importance on the allegation she made exculpating herself by inculpating Jason Wall 124 Most important of all there is with great respect nothing even remotely retrospective about the hypothesis that the appellant s fingerprints might or might not be on the steering wheel It is common sense that there was at all times since Ms Hudson s allegation of 18 August 2005 an obvious possibility of the fingerprints being there and an obvious significance to be attached to the possibility of the fingerprints not being on there In Murphy in the absence of any expert evidence Mr Justice Lynch held that the failure to examine a steering wheel for the fingerprints of the accused he being alleged to have driven the car deprived him of a reasonable possibility of making a specific defence I would do so in this case as well 125 I must express my grave apprehension that a refusal of relief in this case would represent a diminution in the rights of citizens in cases featuring lost or missing evidence and a very marked coarsening of the standards which the Court applies to applications of this kind 126 The existing jurisprudence is not of recent origin has its roots as far back as the 1880s It represents in my view the minimum requirements of a trial in due course of law which is required by the Constitution The modern cases dated from the 1980s Many of the earlier cases in this sequence deal with delay and sometimes gross delay But these cases overlap with case of lost or missing evidence since a feature of delay frequently is that it makes evidence unobtainable and permits witnesses to die or disappear

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  • 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 where the decision as to whether or not a trial can be conducted fairly is made by the very person under a duty to ensure that if such trial proceeds it will be fair in fact and not just in theory and who furthermore can keep that decision under review as a case develops Also the division of function which the current law permits between Superior Courts exercising what is now recognised as exceptional jurisdiction in advance of trial and a residual jurisdiction in a trial court can be unhelpful A trial court when or if it comes to address questions of unfairness by reason of the absence of evidence may feel constrained by the prior determination on the judicial review There is much therefore to be said at both a practical and theoretical level for the trial court having the initial jurisdiction to determine the impact on the trial of the absence of evidence 14 Since I agree that the experience of other common law jurisdictions can shed valuable light on issues which are required to be determined by this court it is I think significant that in other jurisdictions such as Northern Ireland R v Mc Nally and Mc Manus 2009 N I C A 3 R v Glen 2003 NIJB 99 England and Wales R Ebrahim v Feltham Magistrates Court 2001 E W H C Admin 130 Australia Jago v District Court of NSW 1989 168 C L R 23 and The Queen v Edwards 2009 H C A 20 New Zealand Hazlewood v The Queen 2013 N Z C A 406 and of course the United States of America Brady v Maryland 373 U S 83 1963 California v Trombetta 467 US 479 1984 and Arizona v Youngblood 488 U S 51 1988 it appears that the issue is addressed by motion or application at or in the trial and then is subject to appeal in the ordinary way Irish law however requires the matter to be addressed primarily and almost exclusively through what might be thought to be the imperfect and ill adapted lens of judicial review on the basis of affidavit evidence alone That position in my view requires detailed analysis careful scrutiny and justification What test should be applied 15 Wherever the issue of the impact of missing evidence on the fairness of a trial is to be determined it is also necessary to determine the onus and perhaps more importantly the standard of proof It appears that the onus lies upon the applicant and currently that obligation is to establish a real risk that the applicant could not obtain a fair trial see Finlay C J Director of Public Prosecutions v Z 1994 2 I R 476 cited in C D v Director of Public Prosecutions 2009 IESC 70 by Fennelly J As was observed in C D the test is subject to the important qualification addressed in Director of Public Prosecutions v Z namely that 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 an unavoidable unfairness of trial Finlay C J in Director of Public Prosecutions v Z at p 507 and cited by Fennelly J in C D v Director of Public Prosecutions at para 18 16 I recognise that superficial differences of language may have little impact in substance particularly when applied in a context which places such emphasis on the response of the judge to the individual facts of the particular case Debates about the precise formulation of a legal test much loved by lawyers can easily become sterile Nevertheless it is worth observing that there is a potential confusion in the test which is applied with at least the possibility of a significant difference in the standard applied in different cases Thus for example in the case of Daly v Director of Public Prosecutions referred to above the Supreme Court dealing as it happened with a question of a failure to obtain fingerprint evidence from a steering wheel referred to the test from D v Director of Public Prosecutions 1994 2 I R 465 and Director of Public Prosecutions v Z in terms that the court can and should intervene if but only if there is an unavoidable or inevitable unfair trial to be seen as occurring one which cannot be avoided by directions and proper charges given to a jury by a trial judge This is capable of being a somewhat different and more exacting test than the real risk formulation The tension is encapsulated in a portion of the judgment of Hamilton P in Director of Public Prosecutions v Z as follows When is a court justified in intervening with the usual criminal law process by granting a permanent stay of criminal proceedings and what is the standard of proof which the court should require from the applicant for such an order based on his allegation of the likelihood of an unfair trial These questions were considered by the Supreme Court in the D v Director of Public Prosecutions hereinbefore referred to In the course of his judgment in that case the Chief Justice stated at p 467 of the report the standard of proof which the court should require from the applicant in this case concerning his allegation of the likelihood of an unfair trial is that he should be required to establish that there was a serious risk of that occurring This standard of proof was accepted by the other members of the Supreme Court In the course of his judgment in Jago v The District Court of New South Wales Chief Justice Mason stated To justify a permanent stay of criminal proceedings there must be a fundamental defect which goes to the root of the trial of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences Hamilton P in Director of Public Prosecutions v Z continued If the phrase real or serious risk was inserted before a permanent in that passage the tests would be the same p 494 While this last observation is perhaps correct it rather inverts the natural conclusion which might be drawn from the two passages The absence of a phrase such as real or serious risk in the formulation of Jago might more reasonably be thought to demonstrate that the two tests are different and indicate therefore that some analysis is required to determine if such distinction was intended and if so justified 17 It may be arguable that the test of a real risk of an unfair trial particularly in the context of anticipatory judicial review sets the test too low If there is a real risk of an unfair trial there is nevertheless a real probability of a fair trial Why should that fair trial be prohibited Put in simple mathematical terms I would consider a 30 risk of an event occurring to be a real risk Nevertheless that means that 70 of the time that risk will not supervene If the decision is to be taken on a once and for all basis where there is no control over the outcome then it might be readily accepted that the concepts of fair procedures fair trial and the administration of justice might all lead to the conclusion that such a risk is unacceptable But that analysis does not address the position of the trial judge whose role it is to uphold the constitutional guarantee of a fair trial and that of the court of appeal whose function it is to correct errors at the trial stage The test of real risk is not one which is applied in other circumstances in which it is sought to prohibit a trial It is for example not unknown for parties to seek to prohibit trials on the grounds that the offence does not exist or that the statute creating it is unconstitutional In any such case I do not apprehend that the court could apply a test of real risk of unconstitutionality Instead a court would require it to be demonstrated as a matter of law that the offence or procedure was unconstitutional 18 As the judgments referred to above indicate the test of real risk can itself be traced to D v The Director of Public Prosecutions As that case in turn make clear the test was imported from that used the context of extradition cases and the controversial decision in Finucane v McMahon 1990 1 I R 165 The difference in context is however significant and might benefit from scrutiny and analysis 19 The factual underpinning of Finucane was that there was an allegation that the extradition of the appellant should be refused because it was alleged that his constitutional rights would be violated in the jurisdiction to which it was sought to extradite him Such a claim was necessarily anticipatory More importantly the theory on which the case was decided involved the twin propositions which it is not necessary to analyse in this case that the Constitution protected rights of the citizen outside the jurisdiction but that there was nothing an Irish court could do once the person was extradited if his constitutional rights were indeed violated in any way It therefore made sense in that context to apply a test of real risk of a breach of constitutional rights But that situation is not immediately comparable to an application to restrain a trial being conducted in the jurisdiction where it is presided over by a judge whose duty it is to uphold the Constitution and the laws and where the decision of that trial court is subject to appeal In that context the test of real risk of a fair trial arguably sets too low a test The prohibition of a fair trial is not itself consistent with the administration of justice As O Higgins C J observed in In the Matter of The Criminal Law Jurisdiction Bill 1975 1977 I R 129 the phrase due course of law in Article 38 requires a fair and just balance between the exercise of individual freedoms and the requirements of an ordered society p 152 There are a number of possible formulations of the test and in my view it would be desirable for the matter to be carefully considered and authoritative guidance given Is there a duty to seek out evidence which if breached may lead to the prohibition of a trial 20 It is possible to either analyse this case as one which can be characterised by evidence the steering wheel and or the car which is in the possession of the gardaí and is lost as Hardiman J does or one in which evidence in this case fingerprints is not obtained although on an objective analysis it ought to have been as per MacMenamin J On balance I prefer the approach of MacMenamin J The steering wheel is not evidence itself or at least cannot be said to be either inculpatory or exculpatory evidence per se It is however an item from which evidence may be obtained Whether or not this particular case is to be analysed as a failure to seek out case is not however my present concern It is apparent that there are two categories although the dividing line may be blurred and contestable in particular cases and therefore a question arises as to the justification for prohibition of trials where it is alleged that there has been a failure to seek out evidence 21 In Braddish v The Director of Public Prosecutions it was held obiter Hardiman J Denham and Geoghegan JJ concurring that the gardaí were under a duty arising from their unique investigative role to seek out and preserve all evidence having a bearing or potential bearing on the issues of guilt or innocence That was so whether the prosecution proposed to rely on the evidence or not and regardless of whether it assisted the prosecution s case or not The material itself had to be preserved and disclosed and any notes or records of it could not be destroyed or rendered unavailable This duty was derived in part from the decision of Chief Barron Palles in Dillon v O Brien Davis 1887 20 L R Ir 300 The test of what material must be sought out obtained and retained was to be interpreted in a practical fashion but guidance was to be obtained from the leading Irish case on discovery in civil proceedings Sterling Winthrop Group Ltd v Farben Fabriken Bayer Aktiengesellschaft 1967 I R 97 where it was held that every document related to a matter in question which not only would be evidence but also which contained information which may not which must either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary p 102 Although obiter in this respect Braddish was approved and applied by a majority in this court in Dunne v The Director of Public Prosecutions Hardiman and McGuinness JJ Fennelly J dissenting where McGuinness J may have qualified the test somewhat in acknowledging that Fennelly J s anxieties in dissent were reasonable and dangers did exist It was essential therefore that the duty on the part of gardaí to seek out relevant evidence should not be too widely interpreted Citing the judgment of Hardiman J in Braddish she approved the statement that the duty must be interpreted realistically on the facts of each case p 309 This qualification understandable in itself may risk introducing a further level of uncertainty into an already notoriously difficult test and thus increasing the chances of protracted applications for judicial review and appeals to this court with consequent delays If this can be demonstrated to be an unavoidable consequence of a trial in due course of law then it must be accepted unhesitatingly but at a minimum the conclusion deserves some thoughtful scrutiny 22 It is sometimes said that the jurisprudence in relation to failure to seek out evidence is not of recent origin but dates back to the 1880s and follows inexorably from the judgment of Palles C B in Dillon v O Brien Davis I am not sure that this is so and would wish to have the question more closely analysed before accepting it Dillon v O Brien Davis is a case itself reflective of the turbulent history of its time in which police officers seized and retained evidence in the nature of books and money at the time of executing a warrant for the arrest of the plaintiff on a charge of conspiring at common law to solicit tenants in breach of their contracts to refuse to pay to the owners of farms the rent lawfully due Such an offence was a misdemeanour at common law The plaintiff sought to recover the material seized by commencing civil proceedings by way of an action in detinue The issue determined in the case was the entitlement of the police to retain the items seized in the course of an arrest for a misdemeanour it being accepted that such power existed in the case of arrest for felony The court Palles C B Dowse B and Andrews J rejected the plaintiff s claim The Chief Baron stated the interest of the State in the person charged being brought to trial in due course necessarily extends as well to the preservation of material evidence of his guilt or innocence as to his custody for the purpose of the trial His custody is of no value if the law is powerless to prevent the abstraction or destruction of this evidence without which a trial would be no more than an empty form But if there be a right to production or preservation of this evidence I cannot see how it can be enforced otherwise than by capture p 317 23 Dillon v O Brien Davis is an important common law case establishing a right to detain items of evidential value found during the course of a lawful arrest The entitlement of the police to do so can be described as a right as indeed it was in Dillon or a power duty or function and any such description would suffice for the purposes of the case which established that the police seizing material on arrest had a defence to a claim for detinue It is not clear that Dillon establishes any duty owed to the public to seek out evidence although I would willingly accept that such is in general terms the public duty function power and task of police investigating a crime But the more important issue not considered at all in Dillon is what consequences follow from a failure to perform that duty or function or to exercise that power It would be a large step to deduce from a duty owed to the public any common law duty to any individual in private law actionable in the case of breach Recent authorities suggest that a private law duty is not necessarily to be derived from a public duty or obligation and indeed the existence of a duty owed to the public may negative a private law duty to individuals see for example cases such as Kennedy v Law Society no 4 2005 3 I R 228 and Beatty v Rent Tribunal 2006 2 I R 191 However it would be an even larger step to derive from a power to detain evidential items and a power to resist a civil claim for detinue a duty to seek out evidence or material or information pursuant to the Sterling Winthrop test breach of which will give rise to an entitlement of an accused to have his or her trial prohibited In my view it seems arguable that if such a legal duty arises and is enforceable as such it is to be derived from the modern jurisprudence from Braddish thereon and cannot be deduced inexorably or otherwise from Dillon v O Brien Davis In that respect it is noteworthy that although Dillon v O Brien Davis is a respected authority and has been cited in important cases on search and seizure in the courts of the United Kingdom Elias v Pasmore 1934 50 T L R 196 Chic Fashions West Wales Ltd v Jones 1968 2 Q B 299 Ghani v Jones 1970 1 Q B 693 and R Rottman v Commissioner for the Metropolis 2002 2 A C 692 and the United States see for example Weeks v US 232 U S 383 1914 and U S v Robinson 414 U S 218 1973 neither jurisdiction has sought to derive from it the duty to seek out all relevant information or material breach of which may give rise to the likely prohibition the trial 24 The test set out and adopted in Sterling Winthrop v Bayer is of course that set out in the judgment in the Peruvian Guano case Compagnie Financière du Pacifique v Peruvian Guano Company 1882 11 Q B D 55 Indeed the portion quoted in Braddish is from the well known judgment of Lord Justice Brett in that case It is a case and a test which is however viewed increasingly critically in a modern era where discovery threatens to swamp litigation both in its volume and in its cost But it is not readily applicable in the field of criminal law still less in defining an obligation to seek out evidence In the first place it is a test applied in inter partes litigation where the obligation is bilateral Second the question of relevance is determined by an analysis of the pleadings and increasingly the evidence exchanged between the parties and as refined sometimes by the delivery of interrogatories None of this is easily or readily applicable to the process of the investigation of crime by a police force Furthermore there is no obligation on a party in civil proceedings to seek out evidence not already in its possession or power Indeed it is in part for reasons such as the foregoing that it has been held that there is no power to seek discovery in criminal proceedings see e g Conlon v Kelly 2002 1 I R 10 approved in The People Director of Public Prosecutions v Sweeney 2001 4 I R 102 I am not convinced that the majority decision in Dunne even as qualified by McGuinness J should be taken merely by a process of repetition without analysis to represent an established principle of Irish law If there is to be such a principle then it is one which in my view should be deduced by a rigorous analysis of case law and a close consideration of principle Such a process might consider if any distinction is to be drawn between cases where evidence has not been obtained obtained but lost obtained but not disclosed or positively suppressed and the role culpability on the part of the police and the materiality of any evidence lost not found not disclosed or even suppressed might have in such an analysis By referring to culpability I do not intend to suggest that a trial will only become unfair if there is deliberate wrongdoing by the police Rather it seems to me arguable that the blameworthiness of the failure to find or retain evidence whether deliberate reckless negligent or careless is a factor to be taken into account together with the materiality of the evidence Any test must carefully address the very difficult issues which arise in cases such as this where there are a number of competing and sometimes irreconcilable considerations That is a process which is undoubtedly aided by a consideration of the case law of other common law jurisdictions 25 I fully agree therefore that the Irish jurisprudence in this area and others can benefit from a careful analysis of the law of other jurisdictions and not least the lucid and penetrating analysis often to be found in the jurisprudence of the Supreme Court of the United States Such scrutiny must however be carried out at a level beyond the superficial and must be conscious of the sometimes very different procedural background against which some of the cases are decided Less worthy of emulation however in my view at least is the tendency to dismiss decisions of that court as merely reflective of some ideology or indeed the fact that a polarised modern appointment process and some judicial utterances indeed decisions have encouraged that tendency In my view there remains much wisdom in the observations of Chief Justice Evans Hughes when asked at an earlier fraught period in American legal history whether he was a conservative or a liberal He replied that he set little store by such terms saying that such characteristics are not infrequently used to foster prejudice They serve as a very poor substitute for intelligent criticism The judge who does his work in an objective spirit as a judge should will address himself conscientiously to each case and will not trouble himself about labels 26 Approached in this way it is I think apparent for example that Arizona v Youngblood whatever its rhetorical force is not a particularly useful authority in the resolution of this case Neither that case nor the line of authority it develops gives any support to the proposition that anticipatory judicial review is the exclusive remedy in cases of missing evidence or that the test should be a real risk of an unfair trial or that there is an obligation on the police to seek out and detain all evidence that satisfies the Peruvian Guano test Indeed both the majority and the minority in Arizona v Youngblood were agreed on the court s unwillingness to read the fundamental fairness requirement of the Due Process Clause as imposing on the police an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution Rehnquist C J p 58 Again it is noteworthy that the obligation there rejected was only to retain and preserve and not to seek out Indeed it seems that even the minority judgment in that case would not support the appellant in this case were the standard asserted there applied here not least because in that case the appellant s car had been seized examined turned over to a wrecking company and dismantled without the victim having viewed it and without the police having checked the car to confirm or refute elements of the victim s testimony There is no suggestion however that this alone would have justified a dismissal of the indictment Perhaps most notably of all it has never been suggested that the Irish courts should apply a mala fides test to the question of missing evidence and it is thus hard to see that the issue which so bitterly divided the majority from the minority in that case is of any assistance in the resolution of this case 27 Of greater assistance therefore may be the immediately preceding decision in this line of authority California v Trombetta on which the same court was unanimous In that case the court in a judgment of Marshall J overturned the decision of the California Court of Appeal dismissing an indictment in a drunk driving case because the state had not retained breath samples for independent analysis At p 486 487 Marshall J observed We have however never squarely addressed the government s duty to take affirmative steps to preserve evidence on behalf of criminal defendants The absence of doctrinal development in this area reflects in part the difficulty of developing rules to deal with evidence destroyed through prosecutorial neglect or oversight Whenever potentially exculpatory evidence is permanently lost courts face the treacherous task of divining the import of materials whose contents are unknown and very often disputed Moreover fashioning remedies for the illegal destruction of evidence can pose troubling choices In nondisclosure cases a court can grant the defendant a new trial at which the previously suppressed evidence may be introduced But when evidence has been destroyed in violation of the Constitution the court must choose between barring further prosecution or suppressing as the California Court of Appeal did in this case the State s most probative evidence The court applied Killian v U S 368 U S 231 1961 where the Supreme Court refused to find a violation of the due process clause where on a prosecution for perjury an FBI agent who had prepared the investigatory report had destroyed the preliminary notes made while interviewing the witnesses The petitioner had argued that the notes would have been helpful to his defence and that there was therefore a violation of the due process caused by the destruction of potentially exculpatory evidence The Supreme Court refused to hold that there was a violation of the due process clause These cases it should be observed deal with the loss or destruction of evidence actually in the possession of the police and do not go so far as to suggest a positive obligation to seek out evidence still less information which if in the possession of a civil litigant would satisfy the Peruvian Guano test of relevance 28 In my discussion of the foregoing matters I thought it necessary to explain and illustrate my view that the jurisprudence in this important area deserves review by making reference to authorities in this and other jurisdictions I hope it was clear from the terms and context of that discussion and in any event I am happy to make clear now that these authorities and the issues to which they relate did not all emerge from the submissions and arguments of counsel in this case Accordingly I readily acknowledge that this portion my judgment is obiter and should not be understood as deciding or seeking to decide any point or to indicate anything other than my reasons for considering that this area deserves re examination by way of focussed argument and careful analysis This element of my judgment is therefore correctly characterised as an excursus and it follows that the materials referred to by me were not addressed in argument In fairness however the same can be said for the impressive array of characters and materials ranging from Sir William Herschell the Feltham magistrates Larry Youngblood the Innocence project and the works of Dr Heffernan Messrs Dinger Bay and McGrath and others to the experiences of Captain Dreyfus and the Guildford Four and former Judge Anderson and on to the conservative tendency of a majority of the U S Supreme Court and the case law of the U S which have so been so vividly and tellingly deployed in this and earlier versions of the powerful judgment of Hardiman J in this case and which has prompted my reflections on this area 29 If this difficult area is the subject of detailed forensic scrutiny in a concrete case then I believe the analysis and any outcome will benefit not alone from consideration of the law of other jurisdictions but more immediately from the convictions expressed so powerfully in recent Irish case law For my part I fully agree with the observations of Fennelly J in Dunne All this 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 That applies wherever the issue of lost evidence arises and whatever the court and circumstances in which the issue is raised It is in the interests of all parties and even more importantly in the interests of justice that all possible available material should be gathered and all relevant evidence should be adduced However I am unconvinced that this proper approach should mean that cases of missing evidence should be approached on the basis of an assumption of police suppression of evidence For example I cannot find any evidence which suggests that the Gardaí in this case deliberately ignored the possibility of finger print evidence or decided 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

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