Bowes v. D.P.P. [2002] IEHC 49 (15 March 2002)

THE HIGH COURT

JUDICIAL REVIEW

Record No. 777 JR of 2001.

Between:
JAMES BOWES
Applicant

-and-

THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent.

JUDGMENT OF MR. JUSTICE AINDRIAS Ó CAOIMH DELIVERED 15th MARCH 2002

The applicant seeks an injunction restraining the further prosecution of charges pending before the Dublin Circuit Criminal Court  on Bill Number 560/01.

The applicant has been returned for trial to the Circuit Court on a charge relating to drugs offences including a charge of possession of a controlled drug (heroin) for the purposes of selling or otherwise supplying it to another in contravention of the Misuse of Drugs regulations in circumstances where it is alleged that the market value of the controlled drugs at the time exceeded £10,000.  The offences are alleged to have been committed on the  3rd of April 2000.

The prosecution case is that the applicant was stopped at James Street, Dublin on the 3rd of April 2000 when driving a Honda Accord car and that having been stopped the car was searched and in the boot of the car was found a substantial quantity of heroin.

The applicant has pleaded not guilty to the offences alleged against him and in September 2001 he consulted his solicitor in relation to his then pending trial. He says that a number of decisions were taken in relation to the trial and he expressed the wish that the car be subjected to a technical examination.

The applicant’s solicitors initially made informal contact with the Garda Síochána and subsequently a formal contact was made with the Chief State Solicitor’s Office on the 16th November 2001 seeking access to the vehicle.  This was in the form of a fax sent late on that day which was a Friday.

The letter in question sought the following documentation and information

1 	Full details of all technical examination carried out on the car 92 D 7570 to include reports, photographs and any test results;
2 	All photographs taken of the car whilst in Garda custody;
3.	Details of all movement of the car whilst in Garda custody;
4.	Details of the date on which the car was destroyed.
At the time of the writing of this letter the trial was fixed for the following Tuesday the 20th November 2001.

It appears from the evidence in the affidavits before this court that the vehicle in question was stored at all relevant times at Blanchardstown Garda Station and that some time after April 2001 it was removed from the Garda Station and apparently scrapped.  It appears from evidence given before me in the form of testimony under cross-examination that the scrappage of the car was effected without reference to the Gardaí involved in the investigation of the offence alleged against the applicant, namely members of the Garda National Drug Unit.

The Book of Evidence was served on the applicant on the 10th May 2001 and the applicant was sent forward for trial to the Dublin Circuit Criminal Court on the 31st of May 2001.  The matter was listed for mention before the Circuit Court on 29 June 2001 and the applicant was arraigned before the Dublin Circuit Criminal Court on the 17th July 2001.  A date for trial was fixed for 13 November 2001 and on that date the matter was adjourned for one week to the 20th November 2001.  On 15 November 2001 the applicant’s counsel indicated to the presiding judge of the Dublin Circuit Criminal Court that the matter was ready for trial in the following week.  The initial fax from the applicant’s solicitor to the Chief State Solicitor was received at 3.22 p.m. on the 16th November and this was immediately replied to by Denis Butler, Solicitor of the Office of the Chief State Solicitor.  A further fax was sent by the applicant’s solicitor at 10.11 p.m.  that same Friday night indicating that an application to adjourn the trial would be made on the following Monday morning.  While counsel instructed by the Chief State Solicitor attended court with a view to dealing with the application for the adjournment he was informed that the application was  not being made.

On the following morning when the matter was listed for trial the applicant’s counsel indicated to the Court that he was seeking an adjournment until the following day or at least until 2 p.m. on that same day in order to make an application to the High Court for an order prohibiting the applicant’s trial.  A jury was empanelled at the time and the presiding judge indicated that he would take up the matter at 2 p.m.  At this point objection was raised to the presiding judge, Judge McCartan dealing with the matter on the basis that he had dealt with the applicant previously and had made certain comments.  The matter was then referred to another judge of the Circuit Court, namely Judge Lynch.  When the matter was called before him counsel for the applicant indicated to the Court that a stay of proceedings had been granted by order of the High Court.

The background to the case is allegedly as follows.  On the 3rd April, 2000, six members of the Garda National Drugs Unit apprehended the applicant as he attempted to drive a motor car at James’ Street, Dublin.  The boot of the vehicle was opened and on view was a brown packet containing a substance, a black refuse sack containing two packets of a substance and two plastic bags containing 3 packets of a substance and a weighing scales.  On analysis it was found that five of the packets contained 60% diamorphine (heroin).  The applicant was arrested at the time and after detention was charged with the offences alleged against him and he was brought before the District Court on the following day.  On the 3rd April a member of the Garda Technical Bureau carried out a technical examination of the vehicle and it was found that the applicant’s finger-prints were found on a number of the items found in the boot of the car. At no time prior to the 16th November 2001 was any request made to inspect the car in question.

The grounds upon which application is resisted by the respondent is the delay alleged on the part of the applicant in bringing these proceedings.  In other respects the applicant’s grounds of application are traversed in effect.  In particular it is alleged that the applicant will suffer no prejudice in his trial on the charges pending against him.  The respondent further relies upon the fact that the result of the forensic examination of the car is available to the applicant.

It appears that while the applicant was initially charged on the occasion of his arrest that the charges that were preferred at that time were struck out by order of the District Court on the 20th September 2000 due to the absence of a Book of Evidence and the applicant was later re-charged with the same offences on the 26th April 2001 and a Book of Evidence was served on the  17th May 2001.  It is submitted, if the car in question was destroyed during the interval between September 2000 and 8th May 2001, that if the prosecuting authorities intended to re-charge the applicant that they should have preserved the evidence. It is submitted that if it was intended to dispose of the evidence that the gardaí should have warned the applicant of same.  It is submitted that had the car been preserved that there would be a reasonable possibility of relevant evidence being obtained.  It is further complained that the action of disposing of the car without notice to the applicant has deprived him of an opportunity of rebutting evidence against him.

Evidence tendered to this court suggests that the car was destroyed some time after the 8th of April 2001 when the car was checked on the national computer as to ownership. It appears that the sergeant in charge of Blanchardstown Garda Station may have considered the car to be scrap.  There is no record in the instant case of the car being destroyed.  Normally the sergeant in charge of a Garda Station will preserve items of evidence. It is presumed that some enquiry was made by the Sergeant in charge in the instant case. It appears that at no time was the car in question reported as having been stolen.
	On behalf the applicant particular reliance is placed upon the decision of this court in the case of  Mitchell v. Director of Public Prosecutions [2000] 2 ILRM 396 insofar as that case is authority for the proposition that there are cases where the gardaí, in the interests of justice and fair procedures, are quite definitely obliged to inform an accused person of the existence of evidence and notify him of an intention to destroy that evidence.  Counsel has further relied upon the decision of the Supreme Court in the case of Bradish v. Director of Public Prosecutions (unreported, Supreme Court 18 May, 2001) where Hardiman J stated at page 10 of his judgment as follows:
“It is the duty of the Gardaí, arising from their unique investigative role, to seek out and preserve all evidence having a bearing or potential bearing on the issue of guilt or innocence.  This is so whether the prosecution proposes to rely on the evidence or not, and regardless or whether it assists the case the prosecution is advancing or not.”

Earlier in the same case Hardiman J stated as follows at page 6:

		“It is well established that evidence relevant to guilt of innocence must, so far as necessary and practicable, be kept until the conclusion of a trial.  This principle also applies to the preservation of articles which may give rise to the reasonable possibility of securing relevant evidence.” 
which he indicated was a proposition arising from the decision of this court in the case of Murphy v. D.P.P. [1989] ILRM 71.  It is submitted that in the instant case the applicant was deprived of a reasonable opportunity of rebutting evidence against him.
	On behalf of the respondent it is submitted that there are four grounds upon which the application should be refused:
	     (1) only in the most unusual of circumstances will the courts interfere with a trial close to or during the currency of a criminal trial.  In this regard reliance is placed upon the authority of The Director of Public Prosecutions v.  The Special Criminal Court [1999] 1 I.R. 60. 
	     (2) the delay on the part of the applicant in moving to this court;
	     (3) Unlike the cases of Murphy, Bradish and Mitchell, forensic tests were carried out in the instant case; 
	     (4) It is submitted that in its discretion this court should refuse the relief sought.  It is submitted that the court should assess the evidence in the case and engage in a balancing test to establish whether there is evidence bearing on the guilt or innocence of the accused.

It is submitted that in the circumstances of the very late application to the High Court in circumstances where it had been indicated that no adjournment of the trial was being sought, that this Court should not have granted a stay on the proceedings to the applicant and that as the applicant had at all times the benefit of legal advice that it is disingenuous to suggest that the applicant did not know what was going on.

With regard to the suggestion that the applicant did not know that he would be charged afresh it is submitted on behalf of the respondent that in view of the fact that he was caught ‘red handed’ in the possession of drugs that he must have known that he would be charged and that this would happen notwithstanding the earlier striking out of the charges against the applicant by the District Court.
1
With regard to the delay complained of in seeking to inspect the car in question, reliance is placed by counsel for the respondent upon the decision of this court delivered by Geoghegan J in the case of Mitchell v. Director of Public Prosecutions [2000] 2 ILRM 396 where the High Court indicated that on the basis of delay alone that it would not be disposed to grant the relief of prohibition to the applicant, where in that case he sought video tapes from a garda operated recording system.  In the instant case it is complained that the applicant waited 18 months before seeking the car in question while a lesser period of 14 months was in issue in the Mitchell case.

Counsel has sought to distinguish this case from those of Bradish, Murphy and Mitchell where the evidence was not preserved and no forensic examination was carried out.  In particular counsel for the respondent relies upon the decision of this court in the case of Rogers v. Director of Public Prosecutions [1992] ILRM 695 where at page 698 of the judgment O’Hanlon J indicated that in circumstances where a forensic examination had been carried out of the car in question in that case and a length period was allowed to elapse before any application was made to enable the car to be forensically examined that he would refuse the relief sought.  Furthermore, counsel relies upon the judgment of Lynch J in the Murphy case where he indicated at page 76 of his judgment that the gardaí, being aware of the applicant’s wish to inspect and test a motor car at issue in that case, should not have parted with possession of the car without examining it forensically or alternatively they should have notified the applicant’s legal representatives of their intention of giving it back.

With regard to the fourth point raised by counsel for the respondent, namely that the vehicle in question is of no material evidential value in this case, counsel has referred to portion of the judgment of Hardiman J  in the case of Bradish v. Director of Public Prosecutions  (unreported, Supreme Court, 18 May 2001) where at the end of page 14 of his judgment the learned Supreme Court judge stated as follows:
“ Moreover, having regard to what I consider the very important question of the prosecution’s obligation to preserve evidence having an actual or potential bearing on guilt or innocence, I would not be disposed to deny the appellant relief on this ground.”

In the instant case the car in question was forensically examined with apparently negative results, save one print on the door pertaining to the applicant, and in the circumstances where the results of that examination are available to the applicant it is submitted that, in contrast to the position in the Bradish case, the applicant has not been deprived of  “evidence having an actual or potential bearing on guilt or innocence”.

It is submitted that in the instant case that this court in assessing the matter should have regard to the contents of the Book of Evidence in the case against the applicant.  This suggests that certain admissions were made by the applicant to the gardaí and that forensic tests were carried out on the packages found in the vehicle, and that these tests linked the applicant to the packages. It must be observed, however, that the statement made by the applicant cannot be considered to be inculpatory as far as the charges against the applicant are concerned.   It is submitted that the existence of this evidence cannot be ignored by this court.  It is submitted that the evidence available should be weighed by the court in the assessment of the balance to be struck in the instant case in determining whether the applicant is entitled to the relief sought.

It is further submitted that it is open to the trial judge to give appropriate warnings to the jury trying the applicant.

In reply to the submissions of counsel for the respondent, it is submitted by counsel for the applicant that the respondent cannot rely on any delay on the part of the applicant at a time when there were no charges against him.  It is submitted that there was no Book of Evidence until after the applicant was charged afresh at the end of April 2001. It is submitted further that the applicant is entitled to test the prosecution evidence by reference to forensic examination.
	With regard to the decision of Lynch J. in the Murphy case, it is submitted that one has to have regard to the possibility of relevant evidence being found by a forensic examination of the car and for this reason the car should have been preserved.
	It is further submitted that there has been no explanation forthcoming from the gardaí in regard to the disposal of the car in question and it appears that no enquiry was made at the time  

Conclusions:

	It is clear on the evidence before this court that the motor vehicle in question, in respect of which a statement was made by the applicant to the gardaí admitting that he was driving the car at the time, was one which was forensically examined by the gardaí prior to its disposal.  The Book of Evidence indicates that a finger print of the applicant was found on the door of the car, which of itself does not implicate him in any criminal activity.  This is not a case where he denies driving the vehicle or touching same. In these circumstances the absence of any other print having been found on the car, pertaining to the applicant is something that can be addressed to a jury trying the case.  I am satisfied in these circumstances that the applicant has not been deprived of any evidence going to his innocence.

	As indicated in the cases of Murphy and Rogers the existence of a forensic analysis is relevant where there has been a disposal of a vehicles such as in this case.  The applicant has available to him the result of the forensic analysis.
	On this basis alone I am not disposed to grant the relief which the applicant seeks.  I am also mindful of the fact that the application for a forensic analysis was not made in this case until the eve of the proposed trial of the applicant and while he was charged in April 2001 and a Book of Evidence was served in May 2001 that it was not until the 16th of November that a request was made for an opportunity to forensically examine the car.  In fact the applicant was first arrested and charged with the offences in May 2000 and made no request at that time or up to the stage when the charges were struck out by the District Court owing to the absence of a Book of Evidence.  While it clear that the vehicle in question in this case should not have been disposed of without reference to the gardaí handling the file in the case against the applicant, it is fortuitous that in this case the disposal was in circumstances where a forensic analysis had been carried out on the vehicle.
	I place no reliance on the analysis carried out on the packages found in the vehicle as these could be the subject of further analysis, if required.  While the applicant enjoys the presumption of innocence he has not been deprived of fair procedures in the circumstances.  I am of the opinion that there was no obligation on the gardaí to retain the vehicle in question indefinitely and the fact that no owner could be found for the vehicle does not change that position.
	While the delay in moving to this court for relief might have been a basis upon which the applicant might have been refused leave to institute these proceedings in the first place, I do not decide this case on that basis as I am satisfied that on the merits the applicant is not entitled to succeed in any event.