The High Court refused an application by John Kelly to prohibit his criminal trial, ruling that concerns about missing exhibits and original witness statements could be dealt with by the trial judge.
Mr Justice Hedigan delivered the judgment in Dublin on 27 November 2009. The application was the third attempt to stop a trial on drug offence charges. The judgment does not identify the charges in detail or state the outcome of the earlier attempts.
The application focused on exhibits that had gone missing since the original trial. They included receipts, carbon paper, plastic bags, garden forks, gloves, a carpet mat from the boot of Kelly’s car, car keys, a vehicle licensing certificate, a black swatch and original statements.
Kelly argued that he had lost the opportunity to inspect the items and, in particular, to show that they bore no fingerprints. He also complained that the original statements were unavailable. In court proceedings, though not at the hearing, he had argued that this meant he was not on notice of the case and that copies could not be authenticated.
The judge said the applicant had to show a real risk of an unfair trial by engaging directly with the evidence and demonstrating prejudice. Prohibition was reserved for exceptional cases where possible injustice could not be cured by rulings at trial; arguments should ordinarily be made there.
Photographs of the missing items existed. The only prejudice advanced at the hearing was the absence of fingerprint evidence on a wrapper, which the judge said was already established and appeared to favour Kelly. The judge said any issue could be handled by the trial judge.
The judgment also addressed missing carbon paper found in Kelly’s car boot and staining that had appeared on cellophane wrapping. The staining was said to be evidence linking the car to wrapped cannabis blocks. The judge considered the loss of the carbon paper could favour Kelly and said any possible injustice could be addressed at trial.
On the original statements, the judge rejected the claim that Kelly lacked notice of the case: there was no new evidence and he had already had one full trial. The typewritten copies, the judge held, were copies within section 30 of the Criminal Evidence Act 1992 and could be proved, if needed, by the typist who transcribed them, who remained available.
The supplied judgment extract ends at that point. It does not include a concluding order or state whether further directions were made.