Ludlow -v- DPP Supreme CourtJudgment was given by Mrs Justice Denham and Mr Justice Hardiman on July 31st, 2008, the Chief Justice, Mr Justice Murray, concurring.
Judgment
Evidence relevant to a case where the applicant was charged with dangerous driving causing death was not preserved. The Supreme Court upheld a High Court order injuncting the continuation of the prosecution, which the Director of Public Prosecutions (DPP) had appealed.
Background
The case arose out of an accident on October 8th, 2002, in Co Carlow, when the applicant, Denis Ludlow, was driving a truck that collided with a Renault Scenic driven by Darren O'Neill, seriously injuring the driver who died a month later from his injuries.
The truck was owned by a Mr Snowden, for whom Mr Ludlow had started working about three weeks previously.
The accident happened at a bend on the road, which was very wet as it was raining. It was also greasy.
Witnesses stated that neither vehicle was travelling excessively fast, but the truck slid onto the wrong side of the road, colliding with the oncoming car.
The truck was examined on the day of the accident by Sgt Donal Prendergast, a public service vehicle inspector with the Garda.
He stated that the right front and right inner tyre of the truck's rear axle were excessively worn, and concluded that this would have contributed to a loss of direction control of the vehicle in wet conditions.
Mr Ludlow made a statement on January 27th, 2003 and was returned for trial to Carlow Circuit Court on July 24th, charged with dangerous driving causing death.
Subsequently, charges relating to excessively worn tyres were added to the indictment, and the applicant was informed that the trial was likely to start on February 17th, 2004.
Mr Ludlow engaged the services of a consultant forensic engineer, who on January 16th, 2004, asked to examine the tyres.
On August 13th that year, he received a letter and photographs from the Garda describing the tread tracks on the tyres, and informing him that the tyres were not available for inspection, as the truck, along with the tyres, had been returned to the owner, Mr Snowden. The letter outlined the defects found on the tyres.
The gardaí argued that Mr Ludlow was aware that the tyres had been examined, that their condition was an issue and that the truck had been returned to Mr Snowden. If he wished to have them examined by his expert, he should have ensured they were preserved.
Mr Ludlow successfully took proceedings in the High Court seeking the prohibition of the trial on the ground that relevant evidence had not been preserved by the Garda. The DPP appealed.
Decision
Ms Justice Denham said that the law relating to the issue raised by the applicant had been addressed in several cases in recent years.
The principles laid down included that each case had to be determined on its own merits; that it was the duty of the court to preserve due process; that it was the duty of the Garda to preserve and disclose evidence relevant to the guilt or innocence of the accused, which duty must be interpreted in a fair and reasonable manner; the fundamental test to be applied by the court was whether there was a real risk of an unavoidable, unfair trial.
She pointed out that she had already given a judgment in which she said it would be best practice for the Garda to give notice of the intention to destroy evidence.
Here the truck was returned to the owner, who was not the accused. He then disposed of it, and there was no reason to think he had acted mala fides. The accused himself had not destroyed any evidence. The case turned on the state of the tyres. The charge was a very serious one, with the potential for a very significant penalty.
"In general, if it is critical evidence of a serious road accident, steps should be taken to preserve the evidence until trial, or until the accused has had time to have the evidence examined by his experts," the judge said.
There was a real risk of an unfair trial, as the applicant would be impeded in defending himself on the critical issue - the state of the tyres.
Concurring, Mr Justice Hardiman said: "From the fact that 'lost evidence' cases continue to come before the courts, it appears that there is a serious problem at least in some units of An Garda Síochána in relation to the preservation of items of evidential significance."
He pointed out that it was more than a year after the accident occurred that the Carlow State Solicitor indicated that charges specifically relating to the state of the tyres would be added to the indictment.
Until then, the applicant had no reason to think that this would be the main thrust of the case against him.
Referring to the argument of the DPP that the applicant did not seek an examination of the tyres early enough, he said that the public service vehicle inspector had examined the tyres on the day of the accident and concluded they were worn.
If it was clear to him this was crucial, it was indefensible that the Garda had parted with them. If it was not clear to him, then it was unreasonable to expect it to be clear to a lorry driver.
All suggestions that the trial judge could mitigate the unfairness caused by missing evidence led to legal and logical difficulties, he said. It was not legitimate to ask the jury to acquit on the ground that the evidence might have been different had the tyres been preserved, or to consider acquitting on the grounds that the defendant's case might have been stronger had they been preserved. Any case must be tried on the evidence actually available.
He upheld the ruling of the High Court. The full judgment is available at www.courts.ie
John Aylmer SC, Deirdre Hughes BL, instructed by Coonan Cawley, Naas, for the applicant; Maurice Gaffney SC, Tom O'Malley BL, instructed by the Chief Prosecution Solicitor, for the DPP.