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McFarlane v DPP
Factual and Procedural Background
The Applicant was charged with three offences allegedly committed in late 1983 at The Location: (1) possession of a firearm with intent to endanger life, (2) possession of a firearm in suspicious circumstances, and (3) the false imprisonment of a businessman. The prosecution’s case depends principally on fingerprints said to have been found on a milk carton, a plastic container and a cooking pot recovered from the scene.
The Applicant escaped from The Prison in 1983, was later arrested in The Country (1986) while using a forged passport, extradited to The Region, and remained imprisoned there until shortly before his arrest in this jurisdiction on 5 January 1998. After being charged, he sought judicial review to prohibit his trial on two grounds: (a) prejudicial delay and (b) loss of the three exhibits bearing his fingerprints. The High Court rejected the delay argument but prohibited the trial because the exhibits were missing. Both sides appealed to the Supreme Court.
Legal Issues Presented
- Whether pre-charge delay (1983–1998) violated the Applicant’s constitutional right to an expeditious trial.
- Whether the loss of the three exhibits bearing the Applicant’s fingerprints created a real risk of an unfair trial requiring that the prosecution be prohibited.
Arguments of the Parties
Applicant's Arguments
- The State could have extradited him or invoked cross-border jurisdiction much earlier; the long delay impairs his ability to gather alibi or defence evidence.
- Loss of the physical exhibits prevents independent forensic examination; photographs of the fingerprints are an inadequate substitute, causing irreparable prejudice.
Appellant's (Director of Public Prosecutions) Arguments
- Until the 1998 interview produced admissions, the fingerprints alone were insufficient to justify a charge; therefore no actionable delay arose.
- Interviewing the Applicant while imprisoned abroad would have been futile and strategically unsound.
- The fingerprints were photographed and can be proved as secondary evidence; the Applicant has not shown any concrete forensic test that cannot be performed using those photographs.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| O’Flynn v. Clifford [1988] I.R. 740 | Distinction between pre-charge investigation and post-charge obligations. | Supported finding that mere suspicion before 1998 did not trigger a right to be charged earlier. |
| Hogan v. President of the Circuit Court [1994] 2 I.R. 513 | Accused’s right to an expeditious trial does not arise until sufficient evidence exists to charge. | Relied on to dismiss the complaint about pre-charge delay. |
| Braddish v. DPP [2001] 3 I.R. 127 | Duty to preserve evidence useful to either side. | Distinguished: here photographs preserved the evidence, unlike the missing videotape in Braddish. |
| Dunne v. DPP [2002] 2 I.R. 305 | Prosecution cannot rely on admissions to excuse loss of primary evidence. | Referenced but held inapplicable because secondary photographic evidence remained. |
| Murphy v. DPP [1989] I.L.R.M. 71 | Loss of real evidence may warrant prohibition if it deprives defence of reasonable opportunity to rebut. | Used as comparative authority; Court found no similar deprivation because photographs allowed examination. |
| Bowes v. DPP [2003] 2 I.R. 25 | Consequences of losing large real evidence (vehicle). | Considered but differentiated on factual grounds. |
| McGrath v. DPP [2003] 2 I.R. 25 | Need for specific evidence showing how loss hampers defence. | Applied: Applicant produced no such specific evidence. |
| Z v. DPP [1994] 2 I.R. 476 | Applicant must establish a real risk of an unfair trial. | Set the standard the Applicant failed to meet. |
| Scully v. DPP [2005] 1 I.R. 242 | Applications based on theoretical or fanciful prejudice should be dismissed. | Cited to characterise the Applicant’s prejudice claim as speculative. |
Court's Reasoning and Analysis
Delay. The Court (per Judge Hardiman) accepted the Appellant’s affidavit evidence that fingerprints alone were insufficient to ground a charge before 1998 and that earlier interview or extradition attempts would have been pointless. Because the right to an expeditious trial attaches only once a prosecutable case exists, the delay was held constitutionally benign.
Lost Exhibits. The Court acknowledged a breach of the Garda duty to preserve physical evidence but found that:
- The fingerprints had been forensically examined, photographed in situ, and linked to the Applicant before the items were lost.
- Photographs constitute admissible secondary evidence under statutory and common-law principles; thus the evidential value was not destroyed.
- The Applicant offered no concrete explanation of any forensic test that could be conducted only on the originals and not on the photographs.
Distinguishing Braddish and related cases—where loss of evidence eliminated any independent assessment—the Court concluded that the Applicant had not demonstrated a “real risk” of an unfair trial. It emphasised that the trial court retains discretion to exclude evidence or halt proceedings if actual unfairness emerges during trial.
Separate Opinion. Judge Kearns dissented, reasoning that loss of the primary exhibits, combined with the State’s acknowledgment that the defence was impaired, shifted the onus onto the Appellant to dispel any risk of unfairness—an onus that had not been met. Nevertheless, the majority view prevailed.
Holding and Implications
Holding: The Supreme Court (majority) ALLOWED THE APPEAL, set aside the High Court order, and refused to prohibit the Applicant’s trial. The cross-appeal was dismissed.
Implications: The decision reaffirms that (1) pre-charge delay is not actionable where insufficient evidence existed to charge, and (2) loss of physical exhibits will not automatically bar prosecution if reliable secondary evidence survives and the defence cannot show specific prejudice. The ruling places emphasis on concrete, rather than theoretical, prejudice and clarifies the limits of the State’s duty to preserve evidence.
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