The High Court has refused Gary Donnellan’s application to prohibit his trial in the Dublin Circuit Criminal Court over three charges arising from the alleged possession of a bottle containing an inflammable liquid and tissue paper. Mr Justice Birmingham said the loss of the bottle exhibits had not established a real risk of an unfair trial at this stage, but the trial court could reconsider fairness as the evidence developed.
The charges concern an incident on 25 September 2011. The prosecution alleges that Mr Donnellan possessed a Heineken bottle containing a hydrocarbon fire accelerant in circumstances giving rise to an inference that it was not for a lawful purpose; intended it to injure, incapacitate or intimidate someone; and intended to use it to damage property in a way likely to endanger life.
Garda evidence described a noisy party at the home of Mr Donnellan’s girlfriend in Monksfield Grove, Clondalkin. A garda later said she saw Mr Donnellan and another man running away and saw him throw a green bottle and balaclava into a driveway. The other man allegedly threw a plastic bottle and towel into an adjoining driveway. The bottles were recovered. A forensic scientist’s statement said partly evaporated paraffin oil vapour was detected in both.
The bottles were returned to gardaí after examination and later went missing. The defence said Mr Donnellan’s account was that the liquid was diesel taken from his family home for his girlfriend’s car, which had run out of fuel. The lost bottles could not be produced at trial or examined by a defence expert.
The judge said the defence account did not address the balaclava or the circumstances in which the bottles were allegedly thrown into adjoining driveways. He concluded that the applicant had not shown a real and substantial risk of an unfair trial and said it appeared likely a fair trial could take place. He described the loss of exhibits as a serious matter, but said a trial should not be halted simply to discipline or punish gardaí.
The court refused the requested relief. It did not determine the criminal charges or decide whether the liquid was diesel or paraffin. The judge stressed that the unsuccessful judicial review did not limit the trial judge’s power and duty to address any unfairness that emerges. The defence had permission to commission an independent forensic report reviewing and, if necessary, criticising the prosecution scientist’s test results.