Judge criticises 'missing evidence' cases

PRESIDENT OF the High Court Mr Justice Nicholas Kearns said yesterday that the bringing of “missing evidence” cases “almost as a matter of routine to prevent a trial taking place” represented “a grave abuse of the legal process”.

The judge said he could only imagine “the sense of frustration, bewilderment and loss of confidence” in the justice system engendered in the minds of the victims by the delays created by unmeritorious applications.

Any alleged consequential unfairness arising for an accused person from the alleged failure of gardaí to sufficiently seek out, retrieve or preserve relevant evidence should usually be dealt with by a trial court, he said.

The case before him, which he dismissed as “devoid of merit”, had persuaded him that the time had come to require lawyers who seek leave to bring such cases to do so on notice to the DPP, rather than the current situation where leave can be secured on an ex-parte basis. Accused persons whose “missing evidence” judicial reviews are dismissed should also have their trials “fast-tracked” to make up for lost time.

The judge noted missing evidence applications multiplied after the 2001 Supreme Court decision in the Braddish case, where an alleged failure by gardaí to preserve video footage led to an order halting a trial.

Stressing he was not criticising the Braddish decision, the judge said it appeared that a perception then took hold among lawyers that an application to halt a trial was worth making where any shortfall in prosecution proofs could be identified.

He also noted that in a Supreme Court decision last year rejecting another missing evidence case, Mr Justice Nial Fennelly had said it was “not easy to avoid the suspicion” that a practice had developed of “trawling” through the book of evidence in search of “the silver bullet, rather the absent missing bullet” which can put a stop to any trial.

Yesterday’s judgment concerned an application by a Sligo man, Patrick Irwin, to stop his trial on drug charges over the failure of gardaí to keep a Mercedes car, owned by another man, for forensic examination by the defence. The car was sought by Mr Irwin’s solicitors about a year after his arrest.

Mr Irwin was arrested after a surveillance operation at Boyle, Co Roscommon, on October 2nd, 2006. It was alleged that gardaí observed him leave his car in a rural area and, wearing surgical gloves, carry a plastic bag to a Mercedes driven by another man, and get in. It was alleged gardaí surrounded the Mercedes, arrested both men and removed a plastic bag with cocaine valued at €70,000 and €55,000 in cash.

Mr Irwin was later charged with drug offences, which he denied. In November 2007, his lawyers requested a forensic examination of the Mercedes, which had been returned to its owner.

Mr Irwin took judicial review proceedings in January 2009, arguing that he could not get a fair trial because the car was not available to him.

Mr Justice Kearns criticised Mr Irwin’s delay in seeking judicial review, and said any supposed “failure” by gardaí to retain the car did not, and could not have, on the facts of the case, produced any information of the slightest use to Mr Irwin.