Judgment
Title: | Wall -v- Director of Public Prosecutions |
Neutral Citation: | [2013] IESC 56 |
Supreme Court Record Number: | 416/2008 & 433/2008 |
High Court Record Number: | 2007 863 JR |
Date of Delivery: | 12/11/2013 |
Court: | Supreme Court |
Composition of Court: | Denham C.J., Hardiman J., O'Donnell J., Clarke J., MacMenamin J. |
Judgment by: | Denham C.J. |
Status: | Approved |
Result: | Dismiss |
Details: | Five judgments delivered |
| Judgments by | Link to Judgment | Concurring | Denham C.J. | | | Hardiman J. | | | O'Donnell Donal J. | | Denham C.J., Clarke J., MacMenamin J. | Clarke J. | | MacMenamin J. | MacMenamin J. | | Denham C.J., Clarke J. | |
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THE SUPREME COURT
Appeal Nos. 416/2008 and & 433/2008
Denham C.J.
Hardiman J.
O’Donnell J.
Clarke J.
MacMenamin J.
Jason Wall
Applicant/Appellant
and
The Director of Public Prosecutions
Judgment delivered on the 11th day of December, 2013, by Denham C.J.
1. Justice is administered in Ireland by judges appointed under the Constitution, who have made a declaration:-
“In the presence of Almighty God I ___________ do solemnly and sincerely promise and declare that I will duly and faithfully and to the best of my knowledge and power execute the office of Judge of the _________ Court without fear or favour, affection or ill-will towards any man, and that I will uphold the Constitution and the laws, may God direct and sustain me.”
2. It is the duty and responsibility of each judge to administer justice and conduct all hearings fairly and with due process.
3. In each jurisdiction civil and criminal litigation proceeds daily before judges who administer justice in accordance with the declaration.
4. A jurisprudence has been developed, however, whereby in certain circumstances a trial may be prohibited before it commences.
5. This jurisprudence grew out of situations where cases were excessively delayed. It also developed where there was lost evidence, and where there was a real risk by reason of other circumstances (e.g. pre-trial publicity) that the applicant could not obtain a fair trial. At the core of the jurisprudence is the concept of a fair trial.
6. In State (O’Connell) v. Fawsitt [1986] I.R. 362 at 379 Finlay C.J. held:-
“I am satisfied that if a person’s trial has been excessively delayed so as to prejudice his chance of obtaining a fair trial, then the appropriate remedy by which the constitutional rights of such an individual can be defended and protected is by an order of prohibition. … A person charged with an indictable offence and whose chances of a fair trial have been prejudiced by excessive delay should not be put to the risk of being arraigned and pleading before the jury.”
Having referred to the excessive delay, Finlay C.J. then stated:-
“The determining feature, in my view, is the non-availability of one of the witnesses who would have been a material witness for the defence.”
Prohibition of the trial was ordered on the ground of the excessive delay and the absence of the material witness for the defence.
7. The protection of the fair trial process may be seen also in the jurisprudence which has developed in relation to lost evidence.
8. Thus, in Murphy v. Director of Public Prosecutions [1989] I.L.R.M. 71, Lynch J. described the duty of An Garda Síochána to preserve evidence so far as is necessary and practicable.
9. Braddish v. The Director of Public Prosecutions [2001] 3 I.R. 127 held that evidence relevant to guilt or innocence must, as far as was necessary and practicable, be kept until the conclusion of a trial. An Garda Síochána, because of their unique and investigative role, are under a duty to seek and preserve all evidence having a bearing or potential bearing on the issue of guilt or innocence.
10. In Savage v. Director of Public Prosecutions [2009] 1 I.R. 185, I reviewed relevant case law and held:-
“(i) each case should be determined on its own circumstances;
(ii) it is the courts' duty to protect due process;
(iii) it is the duty of An Garda Síochána to preserve and disclose material evidence;
(iv) this duty to preserve and disclose material evidence is to do so as far as is necessary and practicable;
(v) the duty to disclose and preserve, as qualified by Lynch J. in Murphy v. Director of Public Prosecutions [ 1989] I.L.R.M. 71 cannot be precisely defined as it is dependent on all the circumstances of the case;
(vi) the duty does not require the gardaí to engage in a disproportionate commitment of manpower and resources;
(vii) in the alternative to keeping large physical objects as evidence, such as motor vehicles, it may be reasonable in certain circumstances for the gardaí to have a forensic report on the object;
(viii) the duty should be interpreted in a practical manner on the facts of the case;
(ix) if evidence is destroyed the reason for the destruction, whether bona fide or mala fide, is part of the matrix of the facts, but it is not a relevant factor in the test to be applied by the court;
(x) all of the above are subject to the fundamental test to be applied by the court, that of “real risk” as described by Finlay C.J. in Z. v. Director of Public Prosecutions [1994] 2 I.R. 476 at p. 506:-
‘This court in the recent case of D. v. Director of Public Prosecutions [1994] 2 I.R. 465 unanimously laid down the general principle that the onus of proof which is on an accused person who seeks an order prohibiting his trial on the ground that circumstances have occurred which would render it unfair is that he should establish that there is a real risk that by reason of those circumstances (which in that case also were pre-trial publicity) he could not obtain a fair trial.’
He continued at p. 507:
‘... where one speaks of an onus to establish a real risk of an unfair trial it necessarily and inevitably means an unfair trial which cannot be avoided by appropriate rulings and directions on the part of the trial judge. The risk is a real one but the unfairness of trial must be unavoidable unfairness of trial.’
(xi) the focus of the inquiry is on the issue of the fairness of the intended trial, and not on shortcomings in the garda investigation. It is not a garda disciplinary process.”
11. Thus, at the core of the jurisprudence, and any analysis, is the query as to whether there is a real risk, by reason of the circumstances, that an appellant could not obtain a fair trial.
Charge
12. Jason Wall, the applicant/appellant, referred to as “the appellant”, was charged on the 7th September, 2006, that on the 14th August, 2005, at Church Road, Killiney, Co. Dublin, he intentionally and recklessly engaged in conduct while being the passenger in motor car registration no. 95 KE 4841, driven by another, in that he pulled the steering wheel of the car, which created a substantial risk of death or serious harm to another, contrary to s. 13 of the Non-Fatal Offences Against the Person Act, 1997.
Judicial Review
13. The appellant brought judicial review proceedings seeking an order prohibiting the Director of Public Prosecutions, the respondent, referred to as “the D.P.P.”, from proceeding with the prosecution.
Grounds
14. The grounds upon which the appellant sought to prohibit his trial was that the D.P.P. had acted contrary to national and constitutional justice and in breach of fair procedures in:-
(a) Failing to conduct fingerprint testing on the steering wheel of motor car registration no. 95 KE 4841 where the appellant is alleged to have pulled on, on the 14th August, 2005, which action is alleged to have caused a car crash which resulted in the death of one passenger and injury to others.
(b) By failing to ensure that all probative evidence which came into the hands of An Garda Síochána, including the two cars involved in the crash and in particular the car the appellant was a passenger in were preserved for inspection, examination and for the trial of the offence alleged.
15. In essence, what is alleged against the appellant is that while a back seat passenger in a car driven by his girlfriend, he reached forward and grabbed the steering wheel and pushed it to the right, so as to cause the car to cross to the incorrect side of the road, causing a collision, in which one of the passengers in the car died.
The High Court
16. The High Court (O’Keefe J.) in an ex tempore judgment delivered on the 13th November, 2008, dismissed the application. The High Court reviewed the jurisprudence and held:-
“I have come to the conclusion that this onus, which is on the [appellant], has not been discharged. I am not satisfied on the basis that has been set out in relation to the absence of the fingerprint evidence, the opportunity to have the fingerprinting on the steering wheel and also the examination of the car in relation to the mechanical condition, that such absence has posed a real risk of an unfair trial insofar as the [appellant] 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 cautioned statement, alleged that the appellant caused the collision as set out above.
(v) A surviving passenger, Ciara Brack, remembers nothing between the beginning of the journey and waking up in hospital.
(vi) Stephen Wall made two cautioned statements on the 30th August, 2005, in two separate Garda Stations. In one of the statements he said that he did not remember anything from the night. In the other, he stated that he could remember lights coming towards them and snapping back out of it outside the car. However, in a statement of the 7th February, 2006, he stated that the appellant had reached for the steering wheel and he moved the wheel, stating also “I reckon he moved it with his right hand”
(vii) The two vehicles involved in the accident were still at the scene on the 14th August, 2005, when they were examined by Sergeant Finn, a Forensic Collision Investigator (Witness 15).
(viii) On the 17th August, 2005 a public service vehicle inspector, Garda McCallion, (Witness 14) examined both cars at Gannon’s recovery yard, Blackrock, to which they had been brought.
(ix) The car in which the appellant was a passenger was extensively damaged according to Garda McCallion’s statement.
(x) Sergeant Finn examined the cars on the 23rd August, 2005 at the yard. His conclusions include that there were no mechanical defects in either vehicle that could have contributed to the collision, and that the primary cause of the collision lay with the driver Lyndsey Hudson, who failed to keep her vehicle on the correct side of the road.
(xi) The appellant was first questioned on the 19th December, 2005, and again on the 25th January, 2006, when his fingerprints were taken, with his consent.
(xii) The appellant was charged on the 13th July, 2006.
(xiii) He was returned for trial on the 8th September, 2006.
(xiv) It was alleged that the appellant was and is prejudiced by the destruction of the motor vehicles, and by their unavailability for inspection by an expert on his behalf.
(xv) In his submissions, the appellant referred to the unavailability of the cars for inspection, which was prejudicial to him in relation to the issue of their mechanical condition, and as to the issue of speeding; submitting that he was prejudiced in relation to the likely evidence of Sergeant Finn.
(xvi) It was also submitted that there was a probability that Mr. Foley would not be available at the trial.
(xvii) It was stressed that the failure of the prosecution to take fingerprints from the steering wheel of the motor car had significantly prejudiced the appellant in the conduct of his defence.
(xviii) It was submitted that the presence of the appellant’s fingerprints on the driving wheel would have little, if any, evidentiary value since it was his girlfriend’s car and he was frequently in it. However, it was submitted that the converse was emphatically not the position: the absence of the appellant’s fingerprints from the steering wheel could be highly relevant in the context of the allegations by the prosecution witnesses that he grabbed the wheel. If the appellant’s fingerprints were not on the steering wheel, it could and would have been submitted to a jury that he had not in fact grabbed the wheel and a jury properly instructed could have been fully entitled to take that inference from the lack of fingerprints, or it could have considerable probative value that he had not grabbed the wheel.
(xix) It was submitted that the prejudice is greater as the appellant has not been able to recall the events of that night, that he maintains his innocence, and intends to plead not guilty.
(xx) It was submitted that the appellant cannot receive a fair trial in the circumstances.
(xxi) The circumstances include also that the only witness, apart from Lyndsey Hudson, who implicated the appellant as responsible for the accident was Stephen Wall. Stephen Wall made no allegation against the appellant on the night of the accident or to the Gardaí on the 30th August, 2005, when he said he could not remember anything relevant. But, on the 7th February, 2006, when questioned in Mountjoy Prison where he was serving a sentence he, for the first time, made an allegation against the appellant similar to that of Lyndsey Hudson.
Issue
20. The issue before the Court is whether in the circumstances which have occurred there is a real risk that by reason of those circumstances, the appellant could not obtain a fair trial.
Prism
21. At this stage the Court is looking at the circumstances through the prism of affidavits and statements, in advance of a trial. The Court does not have the advantage of seeing and hearing witnesses. Therefore, it can only consider whether the appellant has discharged the burden of establishing that there is a real and serious risk of an unfair trial.
Judicial Duty
22. A trial judge retains at all times his or her duty to administer justice in accordance with the law and the Constitution, in other words to ensure that a trial is fair.
23. Even where an issue has arisen on an application for judicial review in advance of a trial, the trial judge retains his or her duty at the trial as the evidence unfolds to ensure that a trial is fair in all the circumstances. This includes all issues arising during the trial.
24. On an application for judicial review, the Court is considering issues on affidavits and statements in advance of a trial. There is an onus of proof on an appellant to establish that there is a real and serious risk of an unfair trial. There have been many cases on this jurisprudence. For example, in D. v. Director of Public Prosecutions [1994] 2 I.R. 465, pre-trial publicity was held not to render the proposed trial unfair. On the other hand, in Ludlow v. D.P.P. [2008] IESC 54, it was held that there was a real risk of an unfair trial where the sole issue was the state of the tyres of a vehicle, and the accused had no access to the tyres since the tyres were lost.
25. In this proposed prosecution witnesses will be called. There will be cross-examination on all the issues raised, which will include the car, and all the circumstances of the collision. This will be overseen by a trial judge, who will ensure that the trial is and remains fair.
26. As the appellant had frequent and ready access to the car prior to the collision, it was necessary for the appellant, when raising the issue, to explain why his fingerprint would not be present on the steering wheel, from other occasions, or that there was a probability that such evidence would be available, so as to meet the onus required on an application to prohibit his trial.
27. The evidence in this case against the appellant will not be circumstantial.
28. The appellant will be able to raise all the issues he has raised on this application at the trial, and will be in a position to cross-examine the key witnesses.
29. In B. v. DPP [1997] 3 I.R. 140, I stated that:-
“The community’s right to have offences prosecuted is not absolute but is to be exercised constitutionally, with due process. If there is a real risk that the applicant would not receive a fair trial then, on the balance of these constitutional rights, the applicant’s rights would prevail.”
In this case the lack of evidence relating to the absence or presence of the appellant’s fingerprints on the steering wheel of the car does not give rise to a real risk of an unfair trial so as to prohibit a trial, it is one of many factors which may be considered by a trial judge while ensuring that there is a fair trial.
Conclusion
30. In all the circumstances, the appellant has failed to discharge the onus of proving that the failure on the part of the State to preserve the vehicles, or to seek evidence of fingerprints on the steering wheel of the car in which he was a passenger, has exposed him to a real risk of an unfair trial. The circumstances are not such that the trial should be prohibited.
31. I would affirm the decision of the High Court, and dismiss the appeal.
32. I agree also with the judgments to be delivered by O’Donnell and MacMenamin JJ.