THE SUPREME Court has halted the trial of a truck driver for dangerous driving causing death on grounds of a real risk of an unfair trial, because gardaí failed to retain the allegedly excessively worn tyres of the truck so an expert for the accused could examine them.
The three-judge court repeated its concerns about the number of "missing evidence" cases before the courts, and again urged gardaí to preserve relevant evidence and give sufficient notice to affected persons when they proposed to dispose of evidence.
The court was dismissing the appeal by the Director of Public Prosecutions against the High Court's decision restraining the prosecution of Denis Ludlow for dangerous driving at Roscat, Tullow, Co Carlow, on October 8th, 2002, causing the death of Darren O'Neill.
The tyres' condition lay at the centre of the prosecution case against Mr Ludlow, of Clonmore, Fahy, Rhode, Co Offaly - the driver but not the owner of the truck when the crash occurred in wet conditions, resulting in the death three days later of Mr O'Neill, of Rathrush, Rathoe, Co Carlow. The Iveco box truck had, according to witnesses, slid across the road on to the incorrect side and collided with a car carrying Mr O'Neill, his wife Theresa and their young son Dylan.
A Garda public service vehicle inspector who inspected the truck the same day found the right front and right rear tyres were excessively worn, and concluded this would have contributed to a loss of control in wet road conditions.
He took photographs of the truck and tyres and the lorry was returned to its owner, haulier Ray Snowdon, of Frenchfurze Grove, Kildare, that evening. A prosecution was later brought against Mr Ludlow, alleging dangerous driving causing death, with later charges of driving a vehicle with excessively worn tyres.
Yesterday, Mr Justice Adrian Hardiman noted there was no issue of drink, drugs or excessive speeding in the case. The central role of the tyres in the case against Mr Ludlow was not communicated to him by the prosecution until October 2004, by which time the tyres had been disposed of by Mr Snowdon. Mr Ludlow's solicitors had written to gardaí asking to inspect the tyres, but were told they no longer possessed them.
This created a real risk of an unfair trial to Mr Ludlow, the judge said.
Ms Justice Susan Denham said the case raised the issue of the preservation of evidence before a trial, and the facts were therefore critically important. It appeared it was raining at the time of the incident, the road was greasy, neither vehicle was going excessively fast and the lorry seemed "to slide" across the road.
The judge noted that she had recently expressed the view it would be "best practice" for gardaí to give sufficient notice to an accused, or potential accused, of an intention to destroy a vehicle or evidence which may be materially relevant to a trial.
In this case, the prosecution turned on the state of the tyres and could turn on the tyres' tread depth, and the serious offence of dangerous driving causing death was involved. Mr Ludlow did not have the tyres available to him for forensic examination.
This and every such case had to be decided on its own facts, the judge stressed. It had been argued that the importance of the two tyres was apparent at the scene of the crash. Gardaí should generally take steps to preserve such evidence.
Just as it was not appropriate to return a bloody knife at an assault scene to its owner until evidence was taken, it was best practice not to return defective tyres to their owner at the scene of a serious road traffic incident or to enable them to be destroyed.
The judge did not believe the tyre photographs and the Garda statement were sufficient to ensure Mr Ludlow received a fair trial. Noting that Mr Snowdon was not the subject of a prosecution and that, if he were, his conduct in destroying the tyres might "have a consequence", the judge said there was no reason to suspect Mr Snowdon acted in bad faith, but his acts had deprived Mr Ludlow of significant evidence.
Reacting to the case Michael O'Boyce, president of the Garda Representative Association said there was an ongoing problem with retaining evidence because many older Garda stations had no secure storage space.
An Association of Garda Sergeants and Inspectors spokesman said the issue was one "for Garda management" to deal with, although he noted the subject had not been raised by members.
The Garda press office declined comment on the issue.
