Burglary trial to proceed where camera box from which fingerprint lifts were taken was missing in evidence

Dunne J (nem diss): Criminal law – judicial review – application to prohibit trial on the basis of missing evidence (fingerprints lifted from camera box) – gardaí should have obtained and preserved the item on which a finger mark was found from which the finger print was subsequently lifted – fingerprint lifts – forensic science/crime scene investigation – duty to seek out and preserve evidence – whether there is a genuine risk of an unavoidably unfair trial - the jurisdiction to prohibit a trial is one which should only be exercised in exceptional circumstances - appellant has not discharged the onus of proving that the circumstances in this case give rise to a real risk that the accused would not receive a fair trial which cannot be avoided by appropriate rulings and directions on the part of the trial judge - whether there is a genuine risk of an unavoidably unfair trial – it is for the trial judge to ensure that the appellant’s right to a fair trial guaranteed by the Constitution will be vindicated by making appropriate rulings on the issues before the court of trial – appeal dismissed.

"It is important to emphasise yet again that the jurisdiction to prohibit a trial is one which should only be exercised in exceptional circumstances. It does not seem to me that the appellant in this case has discharged the onus of proving that the circumstances in this case, namely the fact that the Kodak camera box on which the finger mark was found was not preserved or, alternatively, that the finger mark was not photographed in situ on the camera box is such that it gives rise to a real risk that the accused would not receive a fair trial which cannot be avoided by appropriate rulings and directions on the part of the trial judge. The evidence available to this Court does not permit of any other conclusion. Quite simply, the appellant has not discharged the onus of proving “that circumstances exist which give rise to a real risk that the accused would not receive a fair trial…”

Hardiman J: agree with the observations of Dunne J as to the power and duty of the learned trial judge to ensure that the appellant’s right to a fair trial will be vindicated by making appropriate rulings on the issue before the court - those powers and duties of the learned trial judge are in no way diminished by the fact that the applicant has failed in these judicial review proceedings.