DPP v Cleary

• Jurisdiction: Ireland
• Judge: Finnegan J.
• Judgment Date: 07 December 2009
• Neutral Citation: [2009] IECCA 142
• Court: Court of Criminal Appeal
• Docket Number: 212/08
• Date: 07 December 2009

[2009] IECCA 142

COURT OF CRIMINAL APPEAL

Finnegan J.

Budd J.

de Valera J.

212/08

DPP v Cleary

[2009] IECCA 142

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

.v.

GEAROID CLEARY

APPLICANT

ROAD TRAFFIC ACT 1961 S53(1)

ROAD TRAFFIC ACT 1968 S51

ROAD TRAFFIC ACT 1961 S53(2)(A)

ROAD TRAFFIC ACT 1994 S49(1)(F)

ROAD TRAFFIC ACT 2002 S23

ANDREWS & HIRST ANDREWS & HIRST ON CRIMINAL EVIDENCE 4ED 2001 PARA 762

DPP, PEOPLE v CULL 2 FREWEN 36 1981/2/254

DPP v CUNNINGHAM UNREP CCA 24.5.2007 2007/17/3525 2007 IECCA 49

DAWSON (T/A AE DAWSON & SONS) v IRISH BROKERS ASSOCIATION UNREP SUPREME 6.11.1998 1998/35/6302

DPP v KANANAGH UNREP CCA 7.7.1997 1999/8/1874

DPP v M (J E) (AKA M(S)) 2001 4 IR 385 2000/8/3053

CRIMINAL LAW

Evidence

Expert witness - Question - Prejudice - Dangerous driving causing death - Failure to discharge jury - Video footage - Ruling limiting right of prosecution to make comment on racing - Question put to expert witness regarding racing - Claim that question ought not have been asked - Prejudicial nature of question - Whether trial judge erred in refusing application to discharge jury - Discretion of trial judge - Whether real risk of unfair trial - Lengthy trial - Single question answered in negative - Absence of prejudice - People (DPP) v James Cole 2 Frewen 36; People (DPP) v Cunningham [2007] IECCA 49, (Unrep, CCA, 24/5/2007); Dawson v Irish Brokers Association (Unrep, CCA, 6/11/1998); People (DPP) v Kavanagh (Unrep, 7/7/1997) and People (DPP) v JEM [2001] 4 IR 385 considered - Road Traffic Act 1961 (No 24), s 53 - Leave to appeal refused (212/2008 - CCA - 7/12/2009) [2009] IECCA 142

People (DPP) v Cleary

Facts the applicant had been convicted on a single count of dangerous driving causing death contrary to section 53(1) of the Road Traffic Act 1961, as amended. He sought leave to appeal his conviction on the ground that the trial judge had erred in failing to discharge the jury arising from the cross-examination by the prosecution of an expert witness called by the applicant and in particular a question put to the witness to the effect that video footage shown earlier and replayed during the cross-examination depicted two cars racing against a background of an earlier ruling limiting the right of the prosecution to make comment upon racing based upon the said video footage.

Held by the Court of Criminal Appeal (Mr. Justice Finnegan delivering the judgment of the Court) in refusing leave to appeal that the decision as to whether to discharge a jury was a matter within the discretion of the trial judge, the exercise of that discretion would only be interfered with on appeal where there was a real and substantial risk of an unfair trial. On appeal, regard would be had to all the facts and circumstances of the trial. The trial judge had been in a good position to evaluate the significance of what had occurred in the context of the trial as a whole. The question of having a jury discharged because something was said in opening a case or some inadmissible evidence got in should be a remedy of last resort and only to be accomplished in the most extreme circumstances. The question, which ought not to have been put to the witness, and the answer to same did not create a real and substantial risk of an unfair trial and did not prejudice the applicant.

Reporter: P.C.

1 Judgment of the Court delivered on the 7th day of December 2009 by Finnegan J.

2 The applicant was charged with and convicted on a single count of dangerous driving causing death contrary to section 53(1) (as amended by section 51 of the Road Traffic Act 1968) and section 53(2)(a) (as amended by section 49(1)(f) of the Road Traffic Act 1994and by section 23 of the Road Traffic Act 2002) of the Road Traffic Act 1961.

3 The particulars of the offence are that on 9 ^th September 2006 at Ballysimon Road, Limerick, a public place, the applicant drove a motor vehicle registration number 97 LK 5920 in a manner (including speed) which having regard to all the circumstances of the case, (including the condition of the vehicle, the nature, condition and use of the place and the amount of traffic which then actually was or might reasonably be expected then to be therein) was dangerous to the public and thereby caused the death of another person, namely, Emma Woodland.

4 He seeks leave to appeal his conviction. The single ground of application relied upon is as follows:-

"The learned trial judge erred in law and in principle in failing to discharge the jury upon an application being made to him by counsel for the applicant so to do arising from the cross-examination by counsel for the prosecution of an expert witness called on behalf of the applicant and in particular a question put by counsel for the prosecution to the effect that video footage shown earlier and replayed during the said cross-examination depicted two cars racing against a background of an earlier ruling by the learned trial judge limiting the right of counsel for the prosecution to make comment upon racing based upon the said video footage."

The Facts

5 The case was opened by the prosecution on the following basis. The applicant was driving his white Honda Integra out of Limerick city. He travelled along Ballysimon Road, past Limerick Prison. He was closely followed by another vehicle, a dark blue BMW. As the cars approached the junction of Ballysimon Road and Fairgreen Road a Toyota Starlet emerged from their right hand side and proceeded to cross the junction. The applicant's Honda braked suddenly and the BMW collided with the rear of the same. The Honda continued on for at least 35.5 metres and then collided with the Toyota Starlet. The impact was very severe causing the Toyota Starlet to be driven for a distance into Fairgreen Road where it then struck the boundary wall of a house. The applicant's Honda continued on, struck a taxi on Fairgreen Road and then the rear end of the same struck and demolished the wall and gate pillar of a house on Ballysimon Road. The prosecution's case is that both theapplicant's Honda and the BMW were being driven too fast. As a result of the collision between the applicant's Honda and the Toyota Starlet, Emma Woodland who was a rear seat passenger in the Toyota Starlet was injured and died as a result of her injuries.

The Racing Issue

6 The BMW was being driven by Roman Andreas. He was arrested at the scene and later interviewed by Gardai. In summary the account which he gave at interview was that on the night in question he had taken drink. He was driving along William Street in Limerick when he came across a white Honda. He did not know who was driving the Honda. Before passing Limerick Prison he was driving behind the Honda. The Honda started to quicken and he too drove faster. He may have been doing more than one hundred kilometres per hour. After the Prison the cars started racing and the speed increased. At the junction with Fairgreen Road they were still racing. Approaching the junction to Fairgreen Road he saw the Honda slowing but did not see its brake lights come on. He applied his brakes but could not stop and struck the rear of the Honda. The Honda went to its left and he drove straight on. The distance travelled in the course of the "race" was about one and half kilometres. Mr Andreas pleaded guilty to the same offence as that with which the applicant was charged. Mr Andreas did not give evidence at the trial and his statement which was included in the book of evidence was not admissible in evidence.

7 The applicant also made a statement. As he drove along Mulgrave Street, and from there onwards along Ballysimon Road, the BMW car was behind him and as he approached the junction with Fairgreen Road it was about...