![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
High Court of Ireland Decisions |
||
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Dutton v. D.P.P. [1997] IEHC 119 (9th July, 1997) URL: http://www.bailii.org/ie/cases/IEHC/1997/119.html Cite as: [1997] IEHC 119 |
[New search] [Printable RTF version] [Help]
1. This
matter comes before the Court by way of an application for Judicial Review for
an injunction restraining the Respondent from proceeding with prosecution of
the charges laid out on Dundrum Garda Station Charge Sheet No. 600/1 1994 1(1)
and (2) and in Kilmainham Garda Station Charge Sheet No. 109/1995 (3) upon the
ground set forth in the Statement grounding the application for leave for
Judicial Review dated November 8th, 1996 and in particular upon the ground that
the Respondent failed to comply with the principles of natural justice, the
basic fairness of procedure and is in breach of the Criminal Procedure Act,
1967 by way of disposing with evidence relevant to the guilt or innocence of
the Applicant, which must, so far as is necessary and practical, be kept until
the conclusion of the trial offending Article 38.5.1 of the Constitution and
Articles 40.5.4 and 40.5.1.
4. The
Accused was returned for trial to the Dublin Circuit Court on December 8th,
1995 and after several adjournments the Accused trial is fixed for a date in
June, 1997.
5. It
is alleged by the Prosecution in this matter that on November 23rd, 1994 there
was a high speed car chase from Goatstown through Dundrum, Churchtown,
Ranelagh, South Circular Road and Inchicore to Ballyfermot. The State case is
that the said vehicle crashed at Ballyfermot. It is said that the said vehicle
was a stolen car. The owner of the said car being the Educational Building
Society. It was prior to the said events in the lawful possession of their
manager, John Flanagan. In addition to the damage done to the said car, number
93D 25088, the garda car 93D 28429 was rammed and damaged. It is further
alleged that motorcar registration number 93D 25088 was at the material time
driven by the Applicant.
6. According
to the Book of Evidence the said stolen car was abandoned in O'Hagan Road,
Ballyfermot and the driver of the car was pursued and apprehended by Garda Liam
Farrell who says he is the same man that he saw driving the car earlier at
Churchtown Road. The Applicant denies that he was the driver of the said car
and denies that he was in or about the said car on the said occasion. In his
Affidavit grounding this application he says that on the day of his arrest he
asked for the services of Michael J. Staines, Solicitor, Lincoln House, Lincoln
Lane, Smithfield and requested him to enable him to have the motorcar the
gardai say he was driving inspected as he claims in the said Affidavit that he
had never been in the said car. He says that Mr. Staines indicated that he
should leave the matter in his hands and accordingly he assumed that the
request had been forwarded to the gardai and was being complied with.
7. In
fact the gardai returned the said car to the owner thereof on November 23rd,
1994 having had it forensically examined. No forensic evidence was found in
the said car to establish a connection between the Plaintiff and the said car.
8. In
fact no request was received by the Prosecution for inspection of the said car
from Mr. Michael Staines and there is no evidence before this Court of the said
request being made to Michael Staines other than the Statement of the Appellant
in his said Grounding Affidavit. According to Garda Gerrard Mulally, one of
the gardai involved in the said chase, that no such request was received to
examine the said vehicle or to have it examined on behalf of the Applicant
until the issue was raised before the second date fixed for his trial, namely,
the 11th November, 1996. Further, Michael J. Staines and Company were acting
for the Applicant at all times and in particular on November 14th, 1995 Michael
J. Staines and Company informed the Chief State Solicitor's Office of the
details of an alibi which it was proposed to give in evidence at the trial.
Neither in that letter nor in any prior or subsequent correspondence have that
firm intimated a desire to have any particular item of evidence forensically
examined or to have any particular item of evidence inspected. On the
foregoing account by Garda Mulally the first time any mention was raised of or
concerning inspection of the said car was a period of approximately
twenty-three months after the event.
9. It
is in these circumstances that the Applicant says that he has been deprived or
denied basic fairness of procedures, deprived of a reasonable opportunity of
rebutting evidence referred against him and that vital evidence relevant to his
guilt or innocence has been disposed of and irrevocably changed due to the
actions of the gardai in returning the said car on the day of his arrest to the
owners for overhaul.
10. Counsel
for the Applicant relied heavily upon the decision of Mr. Justice Lynch in
Murphy
-v- The D.P.P
.,
1989 I.L.R.M. at 71. The facts in that case are materially different to the
facts herein. The charges in question related to the driving of a motor
vehicle on the 11th April, 1987. The applicant therein was remanded to the
12th May, 1987 and on that date counsel for the applicant advised the sergeant
in charge of the case that the applicant's legal advisors wished to examine the
results of any forensic examination made in relation to the alleged stolen
motor vehicle and in particular the results of any fingerprint tests done on
the motor vehicle. The gardai advised counsel for the applicant that there had
been no forensic examination of the car as that such examination was not
considered necessary since the prosecution case would rely entirely upon visual
identification. Subsequently, on May 20th, 1987 the gardai contacted the
applicant's solicitor and advised him that the motorcar was available for
inspection. Subsequently, on the 11th June, 1987 the applicant's solicitor was
informed that the vehicle had been removed from its place of storage on May
26th, 1987 by the insurance company concerned. The applicant's case therein
was that by virtue of the disposal of the motorcar before any forensic
examination had taken place his defence was prejudiced. It was in these
circumstances that Mr. Justice Lynch found the gardai's actions in the
circumstances amounted to a breach of the rule of fair procedures. The
situation herein is wholly different. No application was made for inspection
until some twenty-three months after the event. Forensic examination had taken
place and revealed nothing which would in any way prejudice the applicant
herein. In my opinion the instant case as far as facts are concerned is
virtually on all fours with the decision of Mr. Justice O'Hanlon in
Rogers
-v- The Director of Public Prosecutions and Ors.
,
1992 I.L.R.M. 695. Mr. Justice O'Hanlon held dismissing the application:-
11. In
my view Mr. Justice O'Hanlon correctly stated the law and I propose to follow
his decision. I have also had opened to me the decision of the Supreme Court in
Daly
-v- The Director of Public Prosecutions
,
judgment of Finlay C.J. delivered the 11th day of April, 1994. In my view this
judgment is binding on me and fortifies my decision to refuse this application.