THE HIGH COURT
(JUDICIAL REVIEW)
								
								Record No. 336 J.R./1996

BETWEEN

IAN DUTTON
								APPLICANT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
								RESPONDENT

Judgment of Mr. Justice Flood delivered this 9th day of July, 1997.

	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.  
	The Applicant is presently charged on indictment before the Dublin Circuit Court with:-
1.	damaging property, contrary to Section 2(1) of the Criminal Damage Act, 1991, namely, that on November 23rd, 1994 at O'Hagan Road, Ballyfermot, Dublin without lawful excuse he damaged property to wit a motorcar registration number 93D 25088, the property of the E.B.S. and John Flanagan.  
2.	damaging property contrary to Section 2(1) of the Criminal Justice Act, 1991, namely, that on November 23rd, 1994 at Brookville Road within the County of Dublin, without lawful excuse he damaged property to wit a motorcar registration number 93D 28429, the property of the Minister for Justice.
3.	unlawfully using a mechanically propelled vehicle contrary to Section 112 of the Road Traffic Act, 1961 as amended, namely, that on November 23rd, 1994 at Upper Churchtown Road within the County of Dublin he unlawfully used a mechanically propelled vehicle registration number 93D 25088 without the consent of the owner thereof or other lawful authorities.
	The background to the foregoing charges may be briefly stated.  
	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.
	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.  
	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.
	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.
	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.
	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.
	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:-
1.	Some consideration has to be given to the owner of a motorcar which has been stolen or unlawfully taken similarly in relation to other property, the subject of criminal charges where the deprivation of possession thereof would seriously prejudice or inconvenience the innocent owner thereof.
2.	In relation to such property any forensic information whether by the gardai or on behalf of the accused person should be sought and should take place within a reasonable time.
3.	Having regard to the fact that forensic examination was carried out promptly by the gardai and that the applicant did not seek an examination for two and a half months after he had been charged with the offences concerning the driving of the car, there was no breach of fair procedures.
	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.

Signed:-	____________________
		FEARGUS M. FLOOD