DPP v Harty
| Jurisdiction | Ireland |
| Judge | Mr. Justice Sheehan |
| Judgment Date | 10 May 2016 |
| Neutral Citation | [2016] IECA 142 |
| Court | Court of Appeal (Ireland) |
| Docket Number | [2013 No. 43] |
| Date | 10 May 2016 |
[2016] IECA 142
THE COURT OF APPEAL
Sheehan J.
[2013 No. 43]
Birmingham J.
Sheehan J.
Edwards J.
Conviction – Dangerous driving causing death – Right to privacy – Appellant seeking to appeal against conviction – Whether the trial judge erred in law and in principle in permitting the prosecution to adduce evidence before the jury of a biochemistry report
Facts: The appellant, Mr Harty, on the 25th January, 2013, was convicted of dangerous driving causing the death of Mr and Mrs Hartnett, at Ard Tomin, Askeaton, Co. Limerick on the 29th July, 2009. The appellant was subsequently sentenced to five years imprisonment and disqualified from driving for 30 years. The appellant appealed to the Court of Appeal against conviction relying on a single ground of appeal, namely, that the trial judge erred in law and in principle in permitting the prosecution to adduce evidence before the jury of, and concerning, a biochemistry report. The appellant contended that this evidence was received in circumstances which were in breach of his constitutional right to privacy. In the course of oral argument, the appellant contended that even if there was an entitlement by the Gardaí to receive the toxicology report from the hospital, the means by which such a report was to be received by the Gardaí required the intervention of some form of judicial authority akin to a judicial search warrant.
Held by Sheehan J that the claimed right to privacy was subject to the requirements of the common good and public order, namely the requirement that a suspected serious crime be properly investigated. Sheehan J noted that the appellant was entitled to expect that because of the hospital/patient relationship, his medical records, including the results of the toxicology tests which measured his blood alcohol levels at the time of his admission to the hospital would in general be kept private and used only for his care and treatment as a patient. However, Sheehan J held that to the extent that the appellant had an entitlement, it was a qualified entitlement only; he had no absolute entitlement to expect that his privacy would be maintained and his records kept confidential. Sheehan J held that his entitlement was no more than to expect that his records would not be disclosed, save where that was required by exigencies of the common good. The Court was satisfied that in the circumstances the appellant?s claim that his constitutional right to privacy was breached in respect of the toxicology report at issue was defeated by the overriding public interest on foot of which the Gardaí were under an obligation to properly investigate the suspected serious crime of dangerous driving causing death and to gather evidence relevant to that investigation. To the extent that the garda action may have interfered with the privacy of the appellant, Sheehan J held that it was a proportionate interference having regard to the greater public interest and was necessary in the circumstances of the case. The Court was satisfied that the appellant?s consent was not in fact required for the release of the toxicology report to the Gardaí.
Sheehan J held that the appeal should be dismissed.
Appeal dismissed.
This is an appeal against conviction.
On the 25th January, 2013, the appellant was convicted of dangerous driving causing the death of a married couple, Maurice and Margaret Hartnett, at Ard Tomin, Askeaton, Co. Limerick on the 29th July, 2009.
The appellant was subsequently sentenced to five years imprisonment and disqualified from driving for 30 years.
The appellant relies on a single ground of appeal, namely, that the learned trial judge erred in law and in principle in permitting the prosecution to adduce evidence before the jury of, and concerning, a biochemistry report. The appellant contends that this evidence was received in circumstances which were in breach of his constitutional right to privacy. In the course of oral argument, counsel on behalf of the appellant contended that even if there was an entitlement by the gardaí to receive the toxicology report from the hospital, the means by which such a report was to be received by the gardaí required the intervention of some form of judicial authority akin to a judicial search warrant.
The Court delivered an ex tempore judgment on the 11th May, 2015, in which it rejected the appellant's ground of appeal and dismissed the appeal against conviction. The Court said at the time that it would later set out more fully its reason for holding that the claimed right to privacy in this case was subject to the requirements of the common good and public order, namely, in this case the requirement that a suspected serious crime be properly investigated.
In order to consider further this ground, it is necessary to set out the background to the offence, the relevant evidence and the judge's ruling on the matter.
The prosecution case was that on the 29th July, 2009, Mr. Hartnett, the deceased man, had attended at the house of Kitty Walsh at Askeaton, Co. Limerick. He had commenced tiling work at 9.00 am in the morning and finished work at about 5.30 pm that evening. Following this, he collected his wife, who was visiting in the locality, and he drove his Volkswagen caddy van in the direction of Rathkeale. The late Mr. Hartnett was aged 62, and his wife was aged 60. Both were pronounced dead on the evening of the collision. The collision occurred at an area which was governed by an 80 kmph speed limit. The approach to the scene of the collision was covered by signs indicating the presence of dangerous bends. The appellant was driving a Rav Jeep, and his vehicle had emerged from a left hand bend. The Volkswagen Caddy was approaching that bend. At the point of impact, each lane had a width of 2.7 meters. There was no hard shoulder. A gouge mark was seen on what was contended to be the correct side of the road for Mr. Hartnett's vehicle. The gouge mark was 0.8 mtrs. from the centre line of the road on Mr. Hartnett's side.
At the point of impact, there was a continuous white line. The prosecution was unable to adduce eyewitness testimony in respect of the collision. The prosecution case was founded on two strands of evidence. The first was the evidence of forensic examination at the scene of the collision, which the prosecution relied on to make the case that the collision occurred on the late Mr. Hartnett's correct side of the road.
The second strand of evidence relied on by the prosecution was the contention that the appellant's capacity to drive was impaired, owing to the fact that he had consumed intoxicating liquor in the lead up to the collision.
Evidence of the consumption of alcohol by the appellant came from three sources. Paramedics who attended the appellant and his passenger at the scene of the accident gave evidence of their observations. Further, it was alleged that the appellant had consumed drink in two licensed premises in Co. Limerick on the afternoon of the 29th July, 2009. The prosecution proved in evidence the concentration of alcohol in the sample of the appellant's blood which was taken from him at Limerick University Hospital at 8.15 pm on the evening of the collision. A blood sample was taken from the appellant by the nursing staff who were attending on him.
The appellant did not give evidence at his trial. A Mr. O'Keeffe, Consulting Engineer, was the sole witness called on behalf of the appellant. When interviewed by members of An Garda Síochána, the appellant stated that he did not remember the collision and further that he had no memory in respect of his movements on the day of the accident.
Donal O'Donnell, a paramedic, gave evidence to the effect that when he was transferring the appellant from the scene of the accident to the back of an ambulance he noticed that the appellant had a strong smell of alcohol.
Another witness, a Mr. Brian O'Grady, who knew the appellant, gave evidence to the effect that he had seen him in Quaid's Bar in Co. Limerick at about 4.00 pm that afternoon accompanied by another person, and he recollected that the appellant had ordered two bottles of beer. The licensee of Quaid's Bar also gave evidence stating that the appellant and a companion had ordered and consumed a bottle of beer each and that when he observed the appellant and his companion, they were both cold stone sober.
A Mr. Liam O'Sullivan, who was a barman at another licensed premises in Adare, saw the appellant and another man in the public house and stated that they had roughly five or six pints each.
It was established that Mr. Maurice Hartnett, the other driver, was sober and had no alcohol in his system.
The trial judge heard evidence concerning the question of the admissibility of the analysis carried out at the hospital of the appellant's blood. A Garda Aidan Haddock of Askeaton garda station had attended at the hospital and had asked the doctor if blood could be taken from the appellant, but he was told it was not possible to comply with this request owing to the appellant's medical condition at the time.
On the 3rd September, 2009, Garda Cathy Healy called to the home of the appellant, and the appellant signed a consent form stating as follows:-
?I hereby consent to the Garda Síochána Askeaton garda station, Co. Limerick, obtaining from the Mid Western Health Board a medical report on the injuries sustained by me on the 29th July, 2009, at Ard Tomin, Askeaton.?
The prosecution received a medical report dated the 14th September, 2009, in respect of the appellant...
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