The High Court has refused to grant an order preventing the trial of a garda charged with planting a firearm six years ago at a Travellers' campsite in Co Donegal in order for it to be found later by gardaí.
It is alleged that Det Sgt John White handled a double-barrelled sawn-off shotgun for unlawful purposes and that while in the company of Det Garda Thomas Kilcoyne he placed the shotgun at a campsite near Burnfoot on May 22nd, 1998, so that it could be discovered by gardaí in a subsequent search.
Det Sgt White, who has denied the charge, had claimed he could not get a fair trial because material evidence was not preserved by gardaí and was lost.
He claimed the missing evidence included a holdall which allegedly contained a double-barrelled shotgun and clothing. The holdall, the State claims, was used by Det Sgt White to bring a shotgun to the campsite at Burnfoot.
The State had acknowleged losing 15 of 28 audiotapes which gardaí seized from his house in June 2004, including a tape of a conversation in which Det Sgt White alleges he received information that a murder weapon, a shotgun, was to be found at a Traveller camp.
In his proceedings against the DPP, the Circuit Judge of the Northern Circuit, Ireland and the Attorney General, Det Sgt White, with an address in Ballybofey, Co Donegal, sought an order restraining his prosecution at all or, alternatively, an order restraining his prosecution on the firearms charges pending the discovery and delivery of material evidence.
In his reserved judgment yesterday, Mr Justice Eamon de Valera refused to prohibit the trial because of excessive delay of, at best, more than a year by Det Sgt White in initiating his judicial review proceedings.
It was contended on behalf of Det Sgt White that, because previous returns for trial were quashed in his case, the time should run from May 2004, the judge added. However, he was satisfied the time ran from May 2002 and that Det Sgt White's advisers were aware at that point that the items he was seeking were missing.
In any event, he said, the position was clear by June 2003, and the application for leave should have been brought at the latest by September 2003. In those circumstances, there was no good reason for extending the time for the bringing of the proceedings.
Because of his finding on the delay point, the judge said he was not required to address Det Sgt White's claim that he could not get a fair trial because of the missing evidence. Those arguments could be made to the trial judge, he said.
The judge was also strongly critical of the failure, at the time when lawyers for Det Sgt White sought leave to bring the judicial review challenge in July 2004, to inform the High Court at that point of matters which the judge described as central to the application; namely, that an application had been made in April 2004 to Donegal Circuit Court in relation to the missing evidence.
The fact that this matter was not disclosed was unfortunate and verging on the unacceptable but it was not possible to attribute bad faith to any party, he said.