DPP v Byrne
| Jurisdiction | Ireland |
| Judge | Birmingham P. |
| Judgment Date | 15 October 2019 |
| Neutral Citation | [2019] IECA 261 |
| Court | Court of Appeal (Ireland) |
| Docket Number | [163/18] |
| Date | 15 October 2019 |
[2019] IECA 261
The President
Whelan J.
Kennedy J.
[163/18]
THE COURT OF APPEAL
Conviction – Dangerous driving causing death – Admission of evidence – Appellant seeking to appeal against conviction – Whether the trial judge erred in admitting evidence of medical and ophthalmological records in relation to Usher Syndrome
Facts: The appellant, Mr Byrne, on 13th March 2018, following a seven-day trial, was convicted, by way of a majority verdict, of dangerous driving causing death, making a gain by deception contrary to s. 6 of the Criminal Justice Theft and Fraud Offences Act 2001, and making a statement that was false or misleading contrary to s. 64 of the Road Traffic Act 1961. Subsequently, on 11th May 2018, he was sentenced to a term of five years imprisonment in respect of the count of dangerous driving causing death and to lesser concurrent sentences on the other counts. He appealed to the Court of Appeal against his conviction. A number of grounds of appeal had been formulated, but the central contention, as developed in the written and oral submissions, appeared to be that the trial judge erred in admitting evidence of medical and ophthalmological records in relation to Usher Syndrome. There were also a number of sub-grounds canvassed in relation to that issue. It was said that the trial judge was in error in failing to grant a direction following the close of the prosecution case. An issue was raised as to the appropriateness of charging an offence contrary to s. 53 of the Road Traffic Act, an offence of dangerous driving causing death, rather than an offence contrary to s. 48 of the Road Traffic Act 1961, the offence of driving, when to one’s knowledge, one is suffering from a disease or physical or mental disability which would be likely to cause the driving of the vehicle to be a source of danger to the public. It was said that the offence of making a gain or loss by deception was not made out, on the basis that no specific “gain” or “loss” had been identified.
Held by the Court that it had not been persuaded that it should uphold any ground of appeal raised in relation to conviction. Moreover, the Court had not been persuaded that the trial was unfair or that the verdict was unsafe.
The Court held that the appeal against conviction would be dismissed.
Appeal dismissed.
On 13th March 2018, following a seven-day trial, the appellant was convicted, by way of a majority verdict, of dangerous driving causing death, making a gain by deception contrary to s. 6 of the Criminal Justice Theft and Fraud Offences Act 2001, and making a statement that was false or misleading contrary to s. 64 of the Road Traffic Act 1961. Subsequently, on 11th May 2018, he was sentenced to a term of five years imprisonment in respect of the count of dangerous driving causing death and to lesser concurrent sentences on the other counts. He has appealed against both his conviction and the sentence imposed. This judgment deals only with the conviction aspect.
This case arose from a fatal road traffic accident that occurred on Friday 16th October 2015 on Collins Avenue East in Dublin, close to the junction of Collins Avenue and the Howth Road. On that occasion, a motor vehicle driven by the appellant struck a pedestrian who was crossing the road, killing her. CCTV footage from a nearby licenced premises showed the pedestrian, a seventy-year old lady, the late Mrs. Patricia Dunne, crossing the road from west to east pulling a shopping trolley behind her. An examination of that same footage showed the late Mrs. Dunne stopping on the centre line to allow the car in front of the appellant's car to pass. We have been told, and it appears to be the case, that the actual impact is not visible on the CCTV footage. On the evening of the accident, members of An Garda Síochána investigating the incident went to an address in Dublin 8: the home of the appellant's parents. Gardaí spoke with the appellant and informed him that Mrs. Dunne had passed away. While the victim had been conscious at the scene of the accident, she died shortly after being brought to the Mater Hospital.
Gardaí made a request of the appellant that he produce his Driver's Licence and insurance and an appointment was made for him to attend Clontarf Garda Station on Sunday 18th October 2015. The next day, following an appeal for information in relation to this fatal accident, confidential information became available to the Gardaí to the effect that the appellant suffered from a particular medical condition known as Usher Syndrome Type II.
Usher Syndrome Type II is a degenerative condition concerning a combination of congenital hearing loss and a degenerative eye condition, effecting peripheral vision. Type II Usher Syndrome is distinguished from Type I by the fact that the latter is characterised by a much more severe and profound hearing loss.
The prosecution's case was that for the appellant to drive while suffering from such a condition was to drive in a manner which a reasonably prudent person, having regard to all the circumstances, would recognise as involving a direct immediate and serious risk to the public. This was said to have amounted to dangerous driving on the part of Mr. Byrne which, in turn, caused the death of Patricia Dunne. Evidence was adduced that Mr. Byrne had been advised by a consultant ophthalmologist in 1997 not to drive, and had informed an optometrist in 2012 that he was not driving at the time. There was also evidence before the trial court that the appellant had not disclosed the condition when applying for a Driving Licence and insurance. This was important as the other counts on the indictment related to alleged falsehoods or deceptions used in obtaining same.
On Sunday 18th October 2015, the appellant, as scheduled, attended at Clontarf Garda Station on a voluntary basis for the purpose of making a voluntary cautioned statement. He was advised about his right to legal advice, but did not elect to avail of it before participating in the interview. From that session, Gardaí learned that Mr. Byrne had been born in March 1996, and so was thirty-nine years of age at the time of the fatal accident. He worked as a postman and stated that on the day of the accident, he had been travelling to meet his father after completing his work shift.
In the course of the interview, Mr. Byrne was asked about the information that had come to light suggesting that he had been diagnosed with Usher Syndrome Type II and the appellant admitted that this was the case. At the conclusion of the interview, he was invited to, and did in fact, sign a voluntary cautioned statement. Having brought the interview to an end, the Gardaí then sought consent from the appellant for them to be allowed to access his medical records. The question about accessing medical records was not the subject of any particular or specific caution to Mr. Byrne about his entitlement to seek legal advice on that issue and this forms a significant aspect in the appeal.
A number of grounds of appeal have been formulated, but the central contention, as developed in the written and oral submissions, would appear to be that the trial judge erred in admitting evidence of medical and ophthalmological records in relation to Usher Syndrome. There were also a number of sub-grounds canvassed in relation to this issue.
It is said that the trial judge was in error in falling to grant a direction following the close of the prosecution case. An issue was raised as to the appropriateness of charging an offence contrary to s. 53 of the Road Traffic Act, an offence of dangerous driving causing death, rather than an offence contrary to s.48 of the Road Traffic Act 1961, the offence of driving, when to one's knowledge, one is suffering from a disease or physical or mental disability which would be likely to cause the driving of the vehicle to be a source of danger to the public. It is said that the offence of making a gain or loss by deception was not made out, on the basis that no specific “gain” or “loss” had been identified.
Before turning to address the individual grounds of appeal, it is appropriate to say a little more about what was known about the circumstances of the collision. This is of particular importance to the contention that this was a case where there should have been a directed verdict of ‘not guilty’. The trial court heard from Garda Patrick McElroy, who was described as a forensic collision investigator. He indicated that his analysis, including analysis of the CCTV footage, indicated that at the time of impact, the appellant had been travelling at 49kms an hour, the speed limit being 50kms per hour. When the scene was examined by Garda McElroy some hours after the impact, there was no sign of the driver having braked. Garda McElroy's evidence was that he would have expected to find skid marks if a driver had applied emergency braking. However, while that was what one might have expected to see, the absence of skid marks did not establish that the appellant had not applied the brakes, or even that he had not done so with force by way of emergency braking. Garda McElroy calculated that the appellant had 2.8 seconds to react to the presence of Mrs. Dunne when she was at the centre line of the road waiting for the car...
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DPP v Coen
...absence of previous road traffic convictions warranted a greater divergence. 19 . Further reliance is placed on The People (DPP) v Byrne [2019] IECA 261 in which this Court substituted a sentence of five years' imprisonment for dangerous driving for one of four years with the final year sus......