The Supreme Court dismissed Jason Wall’s appeal in a case concerning the possible loss of fingerprint evidence from a vehicle’s steering wheel. In a judgment delivered on 11 December 2013, Clarke J. agreed with MacMenamin J.’s proposed order dismissing the appeal and said that was sufficient to dispose of the case.
Clarke J. also agreed with O’Donnell J.’s observation that the law on missing evidence deserved “a comprehensive re-examination”. He said that re-examination was not necessary to decide this appeal and left any final conclusions about how the law should develop to a future case where they might determine the outcome.
The judgment discussed the distinction between evidence that was unavailable through no one’s fault and evidence that was missing because of culpability in an investigation. Clarke J. referred to the possibility that fingerprints on the steering wheel might never have been recoverable—for example, if the wheel had been destroyed in the accident or during emergency services’ response.
By way of comparison, he considered CCTV footage that might help establish what happened during an alleged offence. If footage was unavailable because a camera was off, defective or pointed in the wrong direction, he said, its absence alone would not mean an accused could not receive a fair trial. The concern in missing-evidence cases, he said, was whether a person was being tried without evidence that ought to have been available because of investigative failings, rather than simply whether the trial was unfair in the abstract.
Clarke J. raised, but did not decide, whether the law should treat all missing evidence alike or take account of why it was unavailable and the degree of any investigative culpability. He said those questions should be resolved in a case where they were decisive. His judgment did not set out the full reasons for dismissing the appeal; he agreed with the reasons in MacMenamin J.’s judgment.