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Nash v Director of Public Prosecutions
Factual and Procedural Background
The Appellant was previously unsuccessful in Supreme Court proceedings that (i) declined to prohibit a pending criminal trial and (ii) refused damages for alleged breach of the constitutional and Convention right to a timely trial. A written judgment on the damages issue was delivered on 24 October 2016 (“the Damages Judgment”).
Within twenty-four hours, the Appellant’s solicitors wrote to the Supreme Court asserting that the Damages Judgment contained significant factual errors about (a) the custody of forensic exhibits and (b) the timeline of advances in DNA technology. A formal notice of motion followed, seeking “liberty to be heard” and any orders the Court deemed appropriate. The Court treated the motion as an application to correct factual inaccuracies and, insofar as the Appellant sought more, as an application to set aside the Damages Judgment. The present opinion resolves that application.
Legal Issues Presented
- Does the Supreme Court possess — and, if so, should it exercise — an exceptional jurisdiction to set aside or vary a perfected final judgment because of alleged factual errors?
- Are the alleged inaccuracies in the Damages Judgment material enough to meet the “most exceptional circumstances” threshold laid down in earlier case-law for reopening a final decision?
- If limited corrections are warranted, do they alter the Court’s previous finding that there was no culpable delay in the criminal investigation?
Arguments of the Parties
Appellant's Arguments
- The Damages Judgment relied on two “errors of fact”: (a) an assertion that forensic samples were not retained when, in fact, a button and thread were in the forensic laboratory since 1998; and (b) an understatement of how early new DNA technology became available.
- Those errors allegedly “undermine the integrity” of the reasoning on culpable delay and could have led the Court to a different outcome on damages and costs.
- The Supreme Court has power to revisit its own decisions to ensure factual accuracy and constitutional justice.
Respondent's Arguments
- No material error was contained in the Damages Judgment; any mis-description was inconsequential and did not affect the conclusion on delay.
- Even if minor inaccuracies existed, they fall far short of the exceptional threshold required to invoke the Court’s inherent Greendale jurisdiction to set aside a final order.
- The constitutional principle of finality under Article 34.4.6 prevails; the motion should be dismissed.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Millensted v. Grosvenor House (Park Lane) Ltd. [1937] 1 KB 717 | Courts may alter a decision prior to perfection of the order. | Cited to illustrate differences between ordinary “slip rule” corrections and reopening a perfected final judgment. |
| Richards v. Judge O'Donoghue & DPP [2016] IESC 74 | Existence of jurisdiction to amend orders before perfection, even in criminal matters. | Same contextual point as above. |
| McNichol v. Neely [1983] NI 43 | Generous interpretation of Order 28 “slip rule”. | Contrasted with the stringent test for setting aside an entire judgment. |
| McMullen v. Clancy [2002] 3 IR 493 | Approval of the “slip rule” approach. | Re-affirmed limited scope for post-judgment corrections. |
| Brown v. Allen 344 US 443 (1953) | Famous dictum on finality: “We are not final because we are infallible…” | Quoted to underscore why appellate courts must take exceptional care before reopening decisions. |
| Riordan v. An Taoiseach [2000] IESC 61 | Importance of finality in litigation for the administration of justice. | Relied upon to show that endless reopening would “undermine the authority of the law”. |
| Greendale Developments (No. 3) [2000] 2 IR 514 | Foundation of the Supreme Court’s exceptional, inherent jurisdiction to revisit a final judgment where necessary to prevent a Denial of Justice. | Framework case; Court applied its strict “most exceptional circumstances” test. |
| Bula Ltd. v. Tara Mines (No. 6) [2000] 4 IR 412 | Objective bias as grounds to reopen a final order. | Cited as an example of the kind of fundamental defect that could justify intervention. |
| R v. Bow Street Magistrate, ex p. Pinochet (No. 2) [1999] 1 All ER 577 | English authority on setting aside a judgment due to objective bias. | Illustrative comparative precedent. |
| DPP v. McKevitt [2009] IESC 29 | Two-limb test: application must (i) concern constitutional justice, and (ii) objectively demonstrate denial of justice. | Applied; Court found limbs unmet. |
| Abbeydrive Developments v. Kildare Co Co [2010] IESC 8 | Rare example where an order was in fact set aside. | Emphasised rarity of reopening decisions. |
| Re L and B [2013] UKSC 8 | Judicial readiness to rectify genuine mistakes. | Cited to show courts’ willingness, yet caution, to admit error. |
Court's Reasoning and Analysis
Judge O'Donnell (with Judges Denham, Clarke, Dunne and Charleton concurring) restated the constitutional finality mandated by Article 34.4.6: Supreme Court decisions are “final and conclusive.” Nonetheless, the Court retains an ultra-exceptional inherent jurisdiction, as recognised in Greendale, to revisit a judgment where fundamental injustice would otherwise persist (e.g., proven objective bias).
Applying the DPP v. McKevitt two-limb test, the Court concluded that:
- The Appellant’s complaints centred on the merits of the Damages Judgment, not on an external denial of constitutional justice.
- The alleged errors, once scrutinised, were either non-existent or immaterial to the outcome.
Specifically:
- The reference to “samples being destroyed” clearly meant blood samples, not the button and thread retained in the forensic laboratory; therefore no factual error existed.
- The statement that the button and thread were “returned” to the laboratory in 2007 was technically inaccurate; they had remained there since 1998. The Court agreed to correct this narrative point.
- The Damages Judgment said new DNA technology was available “2005 or 2006.” Evidence showed it was available in Dublin in 2005 and internationally earlier. The Court accepted this clarification, amending relevant paragraphs.
Judge Clarke conducted a detailed “so-what” analysis: even with corrections, the chronology still showed a non-culpable interval between technological availability and renewed testing, given the cold-case nature of the investigation and the absence of any known DNA sample awaiting analysis. Therefore, the substantive conclusion of no culpable delay remained sound.
Holding and Implications
APPLICATION DISMISSED. Limited textual amendments will be made to the Damages Judgment, but the final order stands unchanged.
Implications: The decision reinforces the constitutional finality of Supreme Court judgments and clarifies the stringent threshold for invoking the Court’s exceptional “reopening” jurisdiction. Minor factual corrections can be made, but they will not disturb a perfected order unless they expose a fundamental denial of justice.
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