THE TRIAL of a man charged with dangerous driving causing serious harm to another man in Bray, Co Wicklow has been halted by the Supreme Court because of a “unique” combination of lost evidence by gardaí and “pre-existing hostility” between the accused and witnesses to the incident.
In restraining the trial of Garrett O’Brien, of Cloverhill, Bray, Ms Justice Susan Denham, with whom Mr Justice Nial Fennelly and Mr Justice Joseph Finnegan agreed, stressed the decision was in the “exceptional” circumstances of the case.
The animosity between the O’Brien family and the witnesses to the crash was “a critical factor” in the court’s judgment, she said.
The court believed there was a real risk of an unfair trial to Mr O’Brien because of the combination of animosity and lost evidence.
The lost evidence was a piece of paper containing the registration number of the car allegedly driven by Mr O’Brien which struck Stephen Downey on August 24th 2003 at Herbert Road, Bray.
A witness, Paddy Moorehouse, had said he was in his own car outside a shop in Bray at about 1.35pm on August 24th 2003 when he saw Mr Downey, Ard na Greine, Bray, on the street and offered him a lift home.
Mr Moorehouse claimed Mr Downey was walking around the back of the car to the passenger door when another car driven by the accused swerved in, heading for Mr Downey. Mr Moorehouse claimed Mr Downey was hit and dragged along and then the other car drove off. He claimed he rang 999 and a woman had come over to him with a piece of paper with a registration number on it.
Mr Moorehouse passed the piece of paper to a garda, telling her he had received it from a witness. The garda put the piece of paper in her notebook.
The garda went to inspect a car at the accused’s home and said the registration of a car there matched the registration written on the piece of paper. The garda wrote the registration number in her notebook but later lost the piece of paper.
Lawyers for Mr O’Brien argued that loss deprived him of a fair trial as they were unable to test the handwriting to establish whether it was written by Mr Moorehouse.
The High Court granted an order restraining the trial.
Yesterday, the three judge Supreme Court dismissed the DPP’s appeal against that High Court decision.
Ms Justice Denham said Mr Moorehouse was unable to provide any details about the witness to the incident and she had not been traced.
She said Mr O’Brien clearly believes no such woman exists and that was why he wished to have the piece of paper forensically tested. This was not simply a case of a lost item relating to an unconnected witness or where there was no animosity between relevant persons. There were no independent witnesses to the incident.
The court agreed there was a real risk of an unfair trial which could not be avoided by directions of the trial judge.
