Savage -v- DPP
SUPREME COURT
Judgments delivered on July 3rd, 2008, by Ms Justice Denham, Mr Justice Hardiman and Mr Justice Fennelly.
JUDGMENT
The Garda Síochána were urged by the court to inform an accused of the intention to destroy evidence which may reasonably be relevant to a trial, and to give that person the opportunity to examine it if they so wished. However, an application for an order prohibiting the trial from going ahead because of the destruction of evidence was refused, as the applicant had not demonstrated that there was a real or serious risk he could not obtain a fair trial as a result.
BACKGROUND
The applicant, Ciaran Savage, was charged with using a vehicle without the consent of its owner, and dangerous driving causing serious injury.
He had been the driver of a car which the owner said had been taken without his consent, and which crashed into a lamp-post in Kilmainham on June 3rd, 2001, injuring the driver and seriously injuring the passenger, who died five months later.
The vehicle was inspected by a Public Service Vehicle Inspector on June 13th, and on June 28th Mr Savage, who was still in hospital, was notified of an intention to prosecute for dangerous driving. He was discharged from hospital on July 10th. On July 25th the vehicle was destroyed by the Garda.
When the accused came before the Circuit Criminal Court in July 2002 his lawyer inquired whether the vehicle was available for inspection. On July 30th the DPP informed him that the vehicle had been destroyed. In January 2003 the DPP stated that the condition of the vehicle would not be an issue in the trial.
The applicant took judicial review proceedings in the High Court seeking to stop the trial, which was refused in March 2005. Mr Justice Quirke ruled that Mr Savage had not shown that the failure to preserve the vehicle had given rise to a real or serious risk that he would receive an unfair trial. Mr Savage appealed to the Supreme Court.
DECISIONS
Having considered in detail the case law, particularly the importance of considering each case according to its specific merits, the three judges of the Supreme Court upheld the High Court judgment. They pointed out that expert evidence from an engineer on behalf of Mr Savage, that the car was in a condition which could have led to it going out of control, could still be brought before the trial court, and that there was independent witness evidence relating to the manner in which the car had been driven prior to the collision, all of which could be presented to the court.
However, they all emphasised the importance of the preservation of evidence that might be relevant to the trial, as far as practicable, outlining the principles gleaned from previous cases on the preservation of evidence.
Ms Justice Denham said: "It would be best practice for An Garda Síochána to give notice, to inform an accused, or a potential accused, of the intention to destroy a vehicle, or evidence which may reasonably be materially relevant to a trial, giving such person time to have the vehicle, or evidence, examined, if they so wished. Such a notice could be served at the same time as a Notice of Intention to Prosecute.
"The notice could inform of the place where the vehicle was, that it could be examined, and of the intention to destroy the vehicle at a future date, perhaps one month hence. The receipt of such a notice, at the same time or shortly after the notice of intention to prosecute, would alert a person to the situation and give time to have the car examined if they so wished, or to make a reasonable request that it not be destroyed."
Mr Justice Hardiman agreed with this recommendation, saying: "If the eminently practical and extremely straightforward suggestion of Denham J were followed by gardaí as a matter of routine, cases like the present would be avoided." He added that "exhortations to the proper custody to evidentially significant items have come from the court for the past five years or so without any apparent effect".
He continued: "However, in all the circumstances and having regard to the not inconsiderable number of 'missing evidence' cases that come before the courts, I wish to say that the fact that relief is being denied in this case does not support the proposition that it was legitimate to destroy or dispose of the motor vehicle involved in the accident. It was not.
"It is never legitimate to dispose of or to lose evidential material which may have a bearing on guilt or innocence."
Mr Justice Fennelly said: "The inspector does not appear to have adverted at all to the fact that a necessary step, the service of notice of intention to prosecute, in the initiation of a prosecution against the appellant, had taken place.
"Less than four weeks after service of that notice and before charging, the car was destroyed. At that stage, the defective condition of the vehicle was clearly going to be material, even if that is no longer the case. The appellant was most unlikely to have engaged a solicitor.
"In my opinion, the gardaí committed a breach of their obligation to preserve potential evidence. They ought not to have had the car destroyed without considering the possible interests of the appellant. That conclusion, of course, does not determine the matter. It is necessary to consider whether the appellant has established that he faces the real risk of an unfair trial by reason of the absence of the motor car."
The court considered he did not, dismissed the appeal, and upheld the decision of the High Court.
The full text of this judgment is available on www.courts.ie
Michael O'Higgins SC and Giollaoisa O Lideadha SC, instructed by Hanahoes, Dublin (for the applicant); Tom O'Malley BL, instructed by the Chief Prosecution Solicitor (for the DPP)