The Supreme Court has prohibited further steps on a criminal damage charge against Jason O’Driscoll after finding that the return of a car to its owner without notice deprived him of a reasonable opportunity to examine it and created a real and serious risk of an unfair trial on that count.
In a judgment delivered on 24 March 2009, Ms Justice Macken allowed O’Driscoll’s appeal only in relation to Count 2, which alleged criminal damage to an Opel Vectra. The court set aside the High Court order to that extent and barred the Director of Public Prosecutions from taking further steps on that count in the prosecution listed as Circuit Criminal Court, County of the City of Dublin, Bill No. 192/01.
The charges arose from an alleged raid on an XtraVision premises on Greenhills Road, Tallaght, on 16 March 2003. The prosecution alleged that the car was reversed into the premises’ shutters to gain entry. O’Driscoll faced burglary and criminal damage charges. His appeal initially raised issues concerning both, but his counsel did not pursue the burglary grounds at the Supreme Court hearing. The ruling did not prohibit further steps on the burglary count.
The car, which had been forensically examined, was returned to its owner on 18 March 2003. The State accepted in the High Court that O’Driscoll should have been notified before it was returned. The judgment said the disclosed forensic examination concerned linking O’Driscoll to the driver’s seat, rather than examining whether the car had been damaged.
The court reviewed the evidence then before it and found little support for the allegation that the car itself had been damaged. Statements referred to damage to the shop, broken glass near the car, and a lens and rear light cluster said to have come from the vehicle. But the judgment said the evidence did not establish where those items were found or connect them to the car. A photograph of the car had been supplied to O’Driscoll’s solicitor, who described it as “black”; that account was not denied.
The State had said further evidence, including photographs, would be produced. The judge said that evidence had not been identified or provided to the court. On the material available, the court concluded that O’Driscoll had been entitled to access to the car for an examination in support of his defence, and that no method remained for him to engage with the prosecution case on the criminal damage count. The judge also concluded that a properly directed jury could not properly convict on that count on the evidence as it then stood.
The High Court had refused O’Driscoll’s judicial review application in February 2006, finding that the loss of access to the car had not been shown to create a real or serious risk of an unfair trial. The Supreme Court held that the High Court had not sufficiently considered the criminal damage count. Its order on appeal was limited to that count.