Cole v Judge of the Northern Circuit and Another

• Jurisdiction: Ireland
• Judge: Macken J.
• Judgment Date: 17 June 2005
• Neutral Citation: [2005] IEHC 193
• Court: High Court
• Date: 17 June 2005

[2005] IEHC 193

THE HIGH COURT

[Record No.538JR/2003]

COLE v JUDGE OF THE NORTHERN CIRCUIT & DPP

JUDICIAL REVIEW

BETWEEN

ANDREW COLE

APPLICANT

AND

A JUDGE OF THE NORTHERN CIRCUIT AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

ROAD TRAFFIC AC T 1961 S3

ROAD TRAFFIC (LICENSING OF TRAILERS & SEMI-TRAILERS)

(AMDT) REGS 1990 SI 286/1990 ART 3

EUROPEAN COMMUNITIES (VEHICLE TESTING) REGS 1991

EEC REG 382/85 ART 15(2)

BOWES & MCGRATH v DPP 2003 2 IR 25

MURHPY v DPP 1989 ILRM 71

DUNNE v DPP 2002 2 IR 305 2002 2 ILRM 241

SCULLY v DPP UNREP SUPREME 16.3.2005

CRIMINAL LAW

evidence

Materiality of evidence - Fatal traffic accident - Motor vehicle involved in accident examined by gardaí - Motor vehicle returned by gardaí to applicant's employer - Failure of gardaí to make available for inspection motor vehicle driven by applicant at time of crash - Failure of gardaí to retain or preserve motor vehicle driven by applicant at time of crash - Whether gardaí had obligation to maintain vehicle so as to enable applicant examine it - Whether applicant entitled to await actual charges before taking any steps to have vehicle examined - Whether condition of motor vehicle material to defence being put forward by applicant - Application refused - (2003/538JR - Macken J - 17/6/2005) [2005] IEHC 193Cole v Judge of the Northern Circuit

Facts: The applicant faced charges of dangerous driving causing death. The vehicle involved was examined by the gardai and then returned to the applicant’s employer. The applicant contended that there was an obligation on the gardai to retain the vehicle so that it could be inspected up to the time the charges were disposed of.

Held by Macken J. in refusing the relief sought that the applicant had not made out a case that he could not be guaranteed a fair trial in accordance with his constitutional right by reason of the fact that the evidence in question was not retained by the gardai, either until disposal of the charges, or until the charges were brought, or was not made available to him before being returned by the gardai to the applicant’s employer.

Reporter: R.W.

1 JUDGMENT delivered by Macken J.on the 17th day of June, 2005

2 This is an application for judicial review following an order of this court (Gilligan, J.) of 21st July, 2003 granting the applicant liberty to seek an order prohibiting the further prosecution of certain criminal proceedings brought against him and currently pending before a judge of the Northern Circuit. The factual matters are not significantly in dispute insofar as they concern this application.

Background facts

3 Briefly the facts are as follows:

4 1. The applicant is facing charges of:

5 (a) Dangerous driving causing death contrary to s. 3 of the Road Traffic Act, 1961

6 (b) Using a vehicle which was not licensed in accordance with Article 3 of the Road Traffic (licensing of trailers and semi-trailers) Regulations, 1982

7 (c) Using a vehicle to which the European Communities (Vehicle Testing Regulations), 1991 applied, without the relevant certificate of road worthiness

8 (d) Failing to use a record sheet in accordance with the provisions set out at Article 15(2) of Council Regulation (EEC) No. 382–85 of 20th December, 1985 as amended

9 2. The applicant was warned, on the occasion of the accident, that he faced being prosecuted.

10 3. The charges were first brought before the District Court on 1st November, 2001. Subsequently the applicant's solicitors on 8th November, 2001 wrote to the Superintendent of An Garda Síochána at Letterkenny in County Donegal enquiring as to the whereabouts of the vehicle and requesting access to it for the purposes of being able to have it examined. Further correspondence along the same lines took place, first with the Garda Síochána, then with Flemming Engineering, the applicant's employer being who were the owners of both the cab and the trailer, to whom they were returned, subsequently with a company called McCauley Trucks who appear to have purchased the cab and then finally with a Mr. Ford who purchased it from McCauley Trucks. Correspondence with Mr. Ford remained unanswered.

11 4. It is a fact, not really contested, that the vehicle was examined by the Gardaí and then, after several days the cab was returned to the applicant's employer, and after some weeks the trailer was returned to the employer, according to the affidavit of Superintendent James Gallagher who has charge of the investigation. According to Superintendent Gallagher this approach was in line with the normal practice at the time.

12 The applicant's case is that in the course of the examination of the vehicle it would appear that the brakes of the trailer failed the tests carried out. In the circumstances the applicant says that an element of his defence which might be considered material to it is now missing because he has been unable to examine the vehicle.

13 Indeed the applicant submits that there was an obligation on the respondent to ensure that the cab and the trailer were retained so that they could be inspected by the applicant and should have been retained up to the time the charges were disposed of.

14 A notice of opposition was filed on behalf of the second named respondent. It pleads that the applicant is not entitled to the relief claimed because his delay in seeking judicial review. On the merits of the application, he it is denied that the applicant has been in any way prejudiced, or that his trial would be contrary to constitutional justice by reason of the failure to make available the vehicle or to retain or preserve it until it was examined on behalf of the applicant.

15 The notice of opposition is grounded on the affidavit of Superintendent Gallagher sworn on 5th April, 2004. In this he avers, in essence, as follows:

16 (a) He is the Officer with overall charge of the investigation of the accident and having charge of the proceedings.

17 (b) The charges arise out of a fatal traffic accident which occurred on 10th May, 2001. According to the evidence available, the deceased lady was walking on the right hand side of the road, pushing a push chair in which was her two year old daughter. She was accompanied by two other of her daughters, aged thirteen and ten at the time. The thirteen year old was in turn pushing her four year old niece in a push chair, while the ten year old daughter was walking behind the others.

18 (c) The deceased was struck from behind by the applicant's vehicle and died at the scene of the accident.

19 (d) According to the statements in the book of evidence, which were exhibited to the affidavit of Mr. Gallagher, and which he refers to in his affidavit, the case made by the second named respondent depends, insofar as this aspect is concerned, on the evidence of the two daughters and one other motorist. The younger daughter, according to her statement, says she was walking behind her mother and sister when "a lorry was coming wild fast on our side of the road. I ran up a lane a wee bit and screamed at Mummy to get in. She never heard me. I saw the lorry hitting Mammy. Jennifer stayed and I ran up to Gingers to phone for help". The statement of the older girl included the following "We were walking on the right hand side of the road. We came to Doherty's lane. We were crossing the wide bit at the entrance to the lane. Mummy was in front. I was in the middle and Ann behind me. I went in on the loose stones a little bit. Mum was in on the stones as well. A lorry passed me on my left coming from behind. Ann was screaming behind me. The lorry was very close to me. I saw it hit Mum. She was rolled forward into the hedge. Tara was still in her pram upside down".

20 (e) According to Superintendent Gallagher a driver also came forward and his statement is included in the book of evidence and is intended to be relied upon. In his statement this witness says that at about 7.40 p.m. he saw a woman walking on the road who had a buggy with her. As he approached a place called Maggie's Pub he saw a lorry coming towards him at speed on the bend. He looked up and pulled well into the left. The lorry did not slow down or deviate despite the fact that the witness was on the road. He said if he had not pulled into the left there would have been a collision. In his statement he said he recalled it was a flat bed lorry. The next day he measured the distance in his car from Maggie's Pub to where he had seen the woman and this was almost two miles.

21 (f) According to Superintendent, the applicant made a statement concerning the matter in which he stated, inter alia:

"I saw a woman and children walking. They were walking two abreast. One of the children made to run out to the middle of the road. The woman seemed to look around and just go after the child. I braked when I saw the child starting to step out. The woman followed her on out and just came on out to the middle of the road and the side of the lorry struck her".

22 According to the affidavit evidence, not challenged in any way, the applicant agreed that he was driving the vehicle and agreed he had been involved in the accident and that the vehicle had struck the woman.

23 It is not for this court to express any concluded view whatsoever in relation to any of these various statements. The proceedings, assuming that the matter proceeds to trial, will be dealt with on oral evidence with all appropriate cross-examination of the matters which arise in the course of such proceedings. For the moment it is sufficient to say that, according to the second named respondent, the dispute between the parties as to the circumstances in which the deceased died and as to the circumstances in which she was hit by the applicant's vehicle is one which will depend on a resolution of two entirely opposing versions of the events, which...