DPP v Daly

JurisdictionIreland
JudgeFinnegan J.
Judgment Date29 July 2009
Neutral Citation[2009] IECCA 90
CourtCourt of Criminal Appeal
Date29 July 2009

[2009] IECCA 90

COURT OF CRIMINAL APPEAL

Finnegan J.

Dunne J.

McCarthy J.

128 of 2008
DPP v Daly
[2009] IECCA 90

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
RESPONDENT
.v.
EDWARD DALY
APPLICANT

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

O'CALLAGHAN, STATE v O HUADHAIGH 1977 IR 42

MCNULTY v DPP UNREP SUPREME 18.2.2009 2009 IESC 12

R v GALBRAITH 1981 1 WLR 1039 1981 2 AER 1060

DPP v M UNREP CCA 15.2.2001 2001/8/1990

DPP v DAVIS 2001 1 IR 146 2001 2 ILRM 65 2000/7/2471

AG, PEOPLE v GALLAGHER 1972 IR 365

R v CHESHIRE 1991 3 AER 670 1991 1 WLR 844

1

Judgment of the Court delivered on the 29th day of July 2009 by Finnegan J.

2

The applicant was charged with two offences as follows:-

3

Count 1 - manslaughter, the particulars of the offence being that he did on the 24 th day of July 2005 unlawfully kill Patrick Ryan.

4

Count 2 - assault causing harm contrary to section 3 of the Non-Fatal Offences Against the Person Act 1997, the particulars being that the did on the 24 th day of July 2005 assault Patrick Ryan thereby causing him harm.

5

The applicant's trial commenced on the 23 rd October 2007 but on the third day thereof the jury were discharged owing to the non-availability of a prosecution witness Dr. Odeh-Odeh. The second trial commenced on the 1 st April 2008 and, on being arraigned, the applicant pleaded not guilty to manslaughter but guilty to assault. On the 4 th April 2008 the jury returned a verdict of guilty on the count of manslaughter. The applicant seeks leave to appeal against his conviction on the count of manslaughter.

The Factual Background
6

On the 24 th July 2005 the applicant assaulted Patrick Ryan in the men's toilet of licensed premises in Waterford. There was no evidence as to the nature of the assault but the applicant admitted that he had head-butted Mr Ryan on two occasions. The evidence was that Mr Ryan sustained a fracture injury to his nose, a possible dislocation injury to one finger, a cut lip and bruising to his chest and abdominal areas. On emerging from the men's toilet Mr Ryan was bleeding profusely. He was taken to Waterford Regional Hospital where he was treated approximately two hours after the assault. At 11.00 p.m. he came under the care of Dr Odeh-Odeh who noted that he was in moderate distress but orientated in time, place and person. Having attended to Mr Ryan's injuries Dr. Odeh-Odeh administered Augmentin, a broad spectrum antibiotic, to guard against the risk of infection. At 2.20 a.m. Mr Ryan collapsed having suffered an apparent cardio-respiratory arrest. He was resuscitated, intubated and ventilated and transferred to the Intensive Care Unit. He never regained consciousness and remained comatose until the 10 th September 2005 when he suffered a further cardio-respiratory arrest and died.

Grounds of Application
7

The grounds of application relied upon are as follows:-

8

(a) Permitting the prosecution to adduce evidence in chief in relation to Augmentin.

9

(b) Failing to accede to an application for a direction at the close of the prosecution case.

10

(c) Failing to accede to an application to withdraw the case from the jury at the close of the entirety of the evidence.

11

(d) Directing the jury incorrectly as to causation.

12

It is proposed to deal with each of the grounds in sequence:

Permitting the prosecution to adduce evidence in chief in relation to Augmentim.
13

The applicant's first trial commenced on the 24 th October 2007 but the jury were discharged on the 25 th October 2007 due to the unavailability of a prosecution witness, Dr. Odeh-Odeh. Mr John Hegarty, Consultant Surgeon at Waterford Regional Hospital, gave evidence for the prosecution and was cross-examined on behalf of the applicant to the effect that the incidents of cardio-respiratory arrest and the death of Mr Ryan had been caused by the administration of penicillin or penicillin based medication to which Mr Ryan was allergic. Shortly before the commencement of the second trial the applicant was served with notice of additional evidence containing an additional statement of evidence from Mr Hegarty and an additional statement from Dr. Moore, Mr Ryan's General Practitioner. In short the effect of Mr Hegarty's report was that the nose bleed and consequent loss of blood suffered by Mr Ryan was a factor in his cardio-respiratory arrest on the 25 th July 2005. Dr. Moore's statement was to the effect that Mr Ryan had previously received Augmentim and had not suffered any adverse reaction.

14

The applicant's submission in short is this. At the first trial in cross-examining Mr Hegarty the applicant had "shown his hand". That trial being aborted it was in breach of basic fairness for the respondent to mend its hand. Reliance is placed on The State (O'Callaghan) v Ó hUadhaigh [1977] I.R. 42. The prosecutor there was charged with ten counts and, when arraigned, entered a plea in bar. Following legal argument the trial judge indicated that in his view only one count could proceed. Upon that indication counsel for the Director of Public Prosecutions entered a nolle prosequi on all counts. The prosecutor was discharged but re-arrested and charged in respect of the same ten counts with which he had originally been charged. Finlay P. categorised the respondent's contention as follows:-

"If the contention of the respondent in this case is correct, then it means that in any criminal trial the Director, on meeting a situation in which a ruling or proposed ruling by the trial judge on a matter within his discretion at the trial is unsatisfactory, from the point of view of the prosecution, can deal with that problem by entering a nolle prosequi and so avoid the consequences of technical matters that may have arisen in the course of the proceedings up to that time by instituting an entirely fresh prosecution freed from, or cured of, the difficulties which have arisen and which are likely to favour the accused."

15

In the course of his judgment in The State (Healy) v Donoghue [1976] I.R. 325 the Chief Justice said at p.348 of the report:-

16

'In the first place the concept of justice, which is specifically referred to in the preamble in relation to the freedom and dignity of the individual, appears again in the provisions of Article 34 which deal with the Courts. It is justice which is to be administered in the Courts and this concept of justice must import not only fairness, and fair procedures but also regard to the dignity of the individual. No Court under the Constitution has jurisdiction to act contrary to justice.'

17

Mr Justice Gannon in his judgment in this matter in the High Court said:

18

'Before dealing with the submissions on the grounds on which the conditional orders were made, I think I should say at the outset that it appears to me that the determination of the question of whether or not a court of local and limited jurisdiction is acting within its jurisdiction is not confined to an examination of the statutory limits of jurisdiction imposed on the court. It appears to me that this question involves also an examination of whether or not the court is performing the basic function for which it is established - the administration of justice. Even if all the formalities of the statutory limitation of the court be complied with and if the court procedures are formally satisfied, it is my...

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