THE SUPREME COURT

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2. However, I also wish to indicate my agreement with the observation of O’Donnell J. to the effect that the jurisprudence in this area deserves, as he puts it, “a comprehensive re-examination”.

3. While this case can, for the reasons advanced by MacMenamin J., be dealt with without any such re-examination and while, therefore, I would leave to another case where any such re-examination might prove decisive, a final judgment as to what the results of any such re-examination should be, I nonetheless would record my agreement with the analysis of the authorities both in this jurisdiction and others engaged in by O’Donnell J.

4. My principal purpose for adding a brief judgment of my own to those other judgments in this case is to indicate one further question which, it seems to me, may require further consideration in the future. One of the points made by MacMenamin J. is that the possibility of obtaining evidence concerning fingerprints on the driver’s wheel (which is at the heart of the issues in this case) might, of course, have been lost in circumstances where no case could conceivably have been made of any culpability on the part of anyone involved in the investigation. The steering wheel could, for example, been destroyed by a combination of the accident and the urgent attempts of emergency services to deal with its aftermath.

5. It is in the context of a comparison between evidence which either never existed or became lost in wholly unblameworthy circumstances, on the one hand, and the sort of cases involving culpability in relation to missing evidence with which the jurisprudence in this area is concerned, on the other, that gives rise, in my view, to a need to consider whether there is a basis for some refinement in the way in which the test is expressed.

6. It may be easiest to move away from the facts of this case and consider, as an example, a case of the most typical type found in the jurisprudence in this area being cases involving CCTV footage.

7. It is, of course, the case that nowadays many areas, and not just in the centres of cities and towns, have CCTV cameras for one purpose or another. Footage from such cameras can often cast useful light on incidents which may be the subject of criminal investigation. But until recent times no such footage would have been available. Many offences of assault and the like involved often conflicting eye witness or participant evidence which finders of fact, be they judges or juries, had to resolve as best they could having regard to the criminal standard of proof. Sometimes there might be forensic evidence available which might assist. However, there can be little doubt that a decent piece of CCTV footage can make the task of those having to decide what actually happened an awful lot easier. But what if, through no-one’s fault, the CCTV footage is not available. Perhaps the camera was not turned on, perhaps it was defective, perhaps it was pointed in the wrong direction. It could not, of course, in those circumstances, be argued that an accused could not get a fair trial.

8. It might, hypothetically, have been useful to the accused had there been such footage for it might have corroborated his account of events. But it is just not there and deciders of fact have, as many predecessors in the past had, to do the best they can. It is important, therefore, to emphasise that the test is not just one of a risk of an unfair trial simpliciter. If it were then the test would apply equally to a case where evidence just was not available as it would to one where the evidence had not been properly sought or preserved by the investigating authorities. Rather the test must be that the relevant difficulty stems not from any intrinsic unfairness in the trial as such but rather the unfairness of a person being tried in the absence of evidence which ought to be available. It seems to me to be clear that the test must be characterised in that way.

9. What further consequences may flow from such an analysis is a matter for further debate. Should, for example, all cases of missing evidence be treated in the same way irrespective of the reason for the non-availability of the relevant evidence and the extent of culpability that might be attributed to those involved in the investigation. Or, in the alternative, is it necessary to weigh in the balance all of the circumstances surrounding why the evidence is missing. Given that some degree of culpability in respect of the evidence being missing is a necessary ingredient of the test it is by no means beyond argument that the actual degree of that culpability may itself form part of the test. However, I would leave a final decision on any such matters to a case where that question might turn out to be decisive.

10. As indicated earlier I agree that, for the reasons advanced by MacMenamin J. in his judgment, this appeal can be disposed off without any definitive re-examination or re-appraisal of the underlying jurisprudence.