Errors of fact in Supreme Court judgment did not affect determination

O'Donnell J (nem diss): Judicial error - jurisdiction to alter a decision prior to the making and perfection of the order - errors by final court of appeal - errors of fact - Art. 34.4.6, of the Constitution - finality of decisions of the Supreme Court - exceptional jurisdiction to revisit a judgment of the Supreme Court - inherent duty to protect constitutional justice - factual errors in instant case - whether Supreme Court had proceeded from a mistaken basis - whether alleged errors would have made a difference to the court's findings - form of application.

"For my part, I would prefer to have decisions made about me by a person conscious of the possibility of error rather than one who believed that appointment to the bench conferred a unique form of secular infallibility. Indeed, those who profess almost mystical belief in the impossibility of judicial error are most often to be found contending that even a small mistake justifies the setting aside, or even the reversal, of a judgment , and who, not coincidentally, point to just such an error in a judgment pronounced. But the legal system does not deny the possibility of mistake; rather, it recognises it and seeks to protect against it and provide a remedy if appropriate."

"The notice of motion is in a curious form. The relief sought at para. 1 is at best redundant since the motion was heard. The application, therefore, becomes a generalised request for such order as the court may think appropriate. Normally the principles of adversarial litigation require one party to assert something and the other to respond, and the court to decide. It may be that the correspondence and application was framed in this vague and indirect fashion out of a respectful diffidence although that seems doubtful but if so, it was in any event misplaced."

Clarke J (concurring): Application to revisit previous judgment of the Supreme Court - appeal from refusal by High Court to restrain criminal trial - claim for damages for breach of entitlement to timely trial - alleged errors of fact in judgment concerning claim for damages - application to have alleged errors corrected - approach by court to such applications - consequence of errors - alleged errors relating to DNA samples taken in case - ambiguity over use of word "samples" - timing of advance in forensic science - whether factual corrections changed the assessment.

"If there truly are errors of fact in a judgment then a judge should, of course, be willing to correct them so that the record can be set straight. However, it does need to be said that this undoubted jurisdiction should only be exercised where the error is of some materiality, either to the case, or to the legitimate interests of any person who may either be a party to the case or whose actions may be described in the judgment."

"All that being said, it is appropriate that, the issue having been raised, the record be corrected and that it be made clear that the relevant button and thread were held in the forensic science laboratory for the period between the initial investigation and the later time when further investigations were carried out."

Charleton J (concurring): Purpose of written submissions - reasons for statements of fact in previous judgment - submissions made by applicant.

"The motion before the Court identifies my judgment of the 29th of January 2015 as the source of one of the alleged errors now complained of; that the tiny samples from the jacket of Mark Nash were not in the Forensic Science Laboratory immediately before these were tested to find an exact correspondence with the DNA of the two murder victims but had to be brought there from storage in a Garda station."

"It will be noted that this paragraph in my prior judgment in this case says that “a number of exhibits were brought back to the Forensic Science Laboratory” to be investigated. That was consistent with the written submissions of Mark Nash. That judgment also states that this was, as is the procedure, in the context of scientific and police personnel liaison. In addition to this small point, all of the points made at the oral hearing are also covered in the judgment, in addition to those in writing, including the point which dominated the oral hearing which concerned some prayer cards of a religious sect. Hence, I do not accept that there was any mistake made in the context of the submissions advanced on behalf of Mark Nash."