The Supreme Court has dismissed an appeal by the Director of Public Prosecutions and upheld a High Court order restraining the prosecution of Garrett O’Brien on five charges arising from a road incident in Bray in August 2003.
The principal charge was dangerous driving causing serious bodily harm. The four other offences arose from the same incident. The Supreme Court’s decision addressed whether the loss of a piece of paper created a real risk that O’Brien could not receive a fair trial.
The note bore the registration number of a car registered to O’Brien’s sister. In evidence set out in the judgment, witness Paddy Moorehouse said an unidentified woman at the scene had written the number on the paper and given it to him. Moorehouse said he passed it to Garda Lisa O’Connor, who put it in her notebook. O’Connor later said she mislaid the note after transferring to another station, despite searching for it. She had recorded the registration number in her notebook on the day of the incident.
O’Brien’s solicitor said the defence wanted the note examined by an independent handwriting expert to test whether Moorehouse had written it. The solicitor also described a history of hostility between the O’Brien and Moorehouse families and said O’Brien believed Moorehouse had falsely accused him. These were claims advanced for the defence, not findings that Moorehouse fabricated the note or that the unidentified woman did not exist.
The High Court had concluded that the missing note could impair the defence’s ability to challenge Moorehouse’s evidence and granted relief restraining the prosecution. The DPP appealed, arguing that the required real risk of an unfair trial had not been established and that any prejudice could be addressed at trial.
In a judgment delivered by Denham J on 16 December 2008, the Supreme Court said the case was exceptional because the lost evidence had to be considered alongside the existing hostility between the accused and witnesses. It held that there was a real risk of an unfair trial that could not be avoided by directions from the trial judge.
The Court affirmed the High Court judgment and order and dismissed the DPP’s appeal. It did not determine guilt or innocence; the order concerned whether the prosecution could proceed in the circumstances described.