Constitutional - Right To Trial In Due Course Of Law (Duty To Seek Out And Preserve Evidence)

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Duty to seek out & preserve evidence - Introduction

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Real risk of an unfair trial

Explosion of case law recently regarding “Missing” Evidence.

Evidence that the Gardai either:

Did not Preserve, once given during an investigation, Braddish v DPP [2001], or

Did not seek out at all. Dunne v DPP [2002]

In both cases it is usually because the State feels it did not NEED the “missing” evidence to bring home the Conviction.

Cases often involve CCTV Evidence:

1) It is often present at Crime scenes

2) It is often forgotten by Gardai

3) It is better than an independent eye-witness, as it has greater reliability and can also be played and re-played

Bowes & McGrath v DPP [2003] - there is a duty to seek the evidence expeditiously – not on “Eve of trial”.

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Murphy v DPP [1989]

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FACTS: Theft and wrecking of a car. Solicitor for accused sought car for inspection (Fingerprints etc). Car had been disposed of – and – Gardai had NOT carried out their own analysis.

HELD: Supreme Court held that Gardai should either have preserved the evidence for the accused, or have examined it themselves and forwarded their findings.

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Braddish v DPP [2001]

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FACTS: CCTV Footage of a robbery. Braddish also confessed to the Robbery. State said they did not intend to rely on the CCTV, the confession was enough for them.

HELD: Because of:

The superior value of the CCTV Evidence,

The notoriously inferior value of confession evidence (plus this confession was “hotly disputed”)

The speed with which the Defence sought the CCTV
There was a real risk of an unfair trial.

But there is a LIMIT:

“The duty cannot be interpreted as requiring the Gardai to engage in a disproportionate commitment of manpower or resources in an exhaustive search for every conceivable kind of evidence. The duty must be interpreted realistically on the facts of each case.”

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Dunne v DPP [2002]

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FACTS: Forecourt of a filling station had CCTV evidence. The owner of the station could not remember if he had handed over CCTV to Gardai. So, there was doubt whether the Gardai had failed to preserve the evidence: How could they preserve what they may not have obtained in the first place.

HELD: not only was there a duty on the Gardai to preserve evidence, but also to SEEK OUT such relevant evidence. If the absence of this evidence would lead to the real risk of an unfair trial, trial could be prohibited.

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Bowes & McGrath v DPP [2003]

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FACTS: Bowes and McGrath were separate cases.

Bowes had been found driving a car in which heroin was found. Fingerprint evidence was garnered by the State from the car. Inspection sought by Bowes very late in trial process

McGrath had been charged with regard to a serious road traffic collision. The car had been given back to the owner very quickly, well in advance of any opportunity for her to analyse the vehicle.

HELD: A trial should not be prohibited merely because the police can be shown to have fallen short in proper standards of investigation. Rather, court must be concerned with ensuring a fair trial.

Bowes argument was rejected.

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McKeown v DPP (2003)

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FACTS: theft of a car, accused seeks forensic tests, but car already returned to owner (Gardai believed they had enough evidence)

HELD: balance between rights of accused and right of car-owner to have car returned. Reasonable procedure would be to serve notice on accused informing him of an intention to return car, and providing him with reasonable time to carry out inspections thereon.

McCracken J. held that it was not for the police to dispose of real evidence on such grounds. Rather, they were not entitled to do so where the evidence could be of assistance to the defence. He held that where one is accused of stealing a car, the car itself will be quite relevant.

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McFarlane v DPP (2006)

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FACTS: McFarlane was accused of kidnapping a supermarket executive after going on the run following the Maze prison escape in 1983. Certain items (milk carton & plastic container) upon which accused’s fingerprints alleged to be found were no longer available.

-HELD: items were missing, but forensic analysis conducted thereon was available. Applicant could not prove real risk of unfair trial due to lack of access to the items of evidence.

NOTE dissent from Kearns J: accused should have been in a position to carry out his own forensic analysis

ECHR September 2010: In a majority decision McFarlane was awarded over €15,00 in costs and damages by the European Court of Human Rights
He had argued breaches of:

Article 6 (right to a fair trial) arguing he had not had a trial within a reasonable time, and

Article 13 (right to effective remedy before a national authority for breaches of convention) he argued he had no adequate compensatory remedy for the breach of his right to a trial within a reasonable period of time.

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Duty to seek out & preserve evidence - summary

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Duty is only as far as is reasonable

Duty is both to seek out AND preserve

“Eve of Trial”/ last minute defence applications are looked upon poorly

Connection between “missing evidence” and remaining evidence must be made