DPP v Khalael
| Jurisdiction | Ireland |
| Judge | Mr Justice Garrett Simons |
| Judgment Date | 31 January 2020 |
| Neutral Citation | [2020] IEHC 33 |
| Docket Number | 2017 No. 764 SS |
| Court | High Court |
| Date | 31 January 2020 |
IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961
[2020] IEHC 33
Garrett Simons J.
2017 No. 764 SS
THE HIGH COURT
Case stated – Admission of evidence – Case to answer – Accused requesting that a consultative case be stated to the High Court – Whether the trial judge’s conclusion that evidence should be admitted was properly reached
Facts: It was alleged that the accused, Mr Khalael, had been the driver of a motor car which had collided with a number of stationary vehicles in the early hours of 3 September 2014. The driver of the motor car did not remain at the scene, and was said to have driven off at speed. This incident was reported almost immediately to An Garda Síochána, and a patrol car which responded to the report came upon the motor car parked on the side of the road, with substantial damage to the front and driver’s side of the car. The accused was standing on the footpath. The District Court heard evidence from Garda Nerney. An application was made by counsel on behalf of the accused to exclude the evidence given by Garda Nerney regarding the admission made by the accused and for a direction that there was no case to answer. The application to exclude the evidence was made by reference to rule 9 of the Judges’ Rules. The District Court judge, on 22 July 2016, ruled that he would exercise his discretion to admit the evidence in this case. Counsel for the accused requested that a consultative case be stated to the High Court. Two questions were put forward as follows: (a) in the particular circumstances of this case, and despite the unexplained breach in the Judges’ Rules, was the District Court judge correct in exercising his discretion to admit the statement in question into evidence; and (b) if the answer to (a) is no, was the District Court judge nevertheless correct in holding that in the absence of the admission, there was still a case to answer on the five remaining charges before the Court.
Held by the Court that the trial judge properly exercised his discretion, and that his conclusion that the evidence should be admitted, notwithstanding the breach of rule 9, was properly reached. The Court held that the confluence of events in this case was such that the District Court judge was entitled to conclude that there was a case to answer.
The Court held that it would answer the two questions posed in the case stated as follows: (a) yes; and (b) yes.
Case stated.
This matter comes before the High Court by way of a consultative case stated from the District Court (Judge John Brennan). The case stated presents a net point of law as to the application of the so-called “Judges' Rules”. These are a non-statutory statement of principles which provide guidance as to the taking of statements from suspects.
The case stated centres on the ninth of these rules, to the effect that any statement should, whenever possible, be taken down in writing and signed by the person making it, after it has been read to him and he has been invited to make any corrections he may wish.
The statement the subject-matter of the case stated is said to have been made at a time when the Accused was not in police custody. More specifically, the statement is said to have been made on the side of the road when the police came upon the Accused in the vicinity of a motor car which had been involved in an incident shortly beforehand. The Accused is said to have admitted to having driven the car. This statement is said to have been written down by the Garda in his notebook, but it was not signed by the Accused. The principal issue for determination in the case stated is whether, in the circumstances, the District Court properly exercised its discretion to admit the statement into evidence.
This matter comes before the High Court by way of a consultative case stated from the District Court. The original version of the case stated has been amended to clarify one issue which had been raised by the High Court (Coffey J.) by order dated 25 January 2018.
The case stated arises out of an incident alleged to have occurred in the early hours of 3 September 2014. In brief outline, it is alleged that the Accused had been the driver of a motor car which had collided with a number of stationary vehicles. The driver of the motor car did not remain at the scene, and is said to have driven off at speed. This incident was reported almost immediately to An Garda Síochána, and a patrol car which responded to the report came upon the motor car parked on the side of the road, with substantial damage to the front and driver's side of the car. The Accused was standing on the footpath.
The District Court heard evidence from two local residents who described having witnessed a green motor car bearing the registration number “ 97 D 64651” colliding with a number of other vehicles. One of the residents rang An Garda Síochána, and passed on the registration number to them.
The case stated then explains that the following evidence was given by Garda Kenneth Nerney.
“7. Garda Kenneth Nerney gave evidence that he was detailed as the patrol car driver in the early hours of 03 September 2014. At about 00.10 hours, he received a call to attend to a road traffic collision on Auburn Villas, Rathgar, where a car, a Volkswagen Golf, registration number 97D64651 had collided with a number of cars. He made his way from the Lower Rathmines Road to the Upper Rathmines Road when a taxi driver flagged him down stating that a green Volkswagen polo had travelled down the road to Portobello Bridge. He directed the patrol car towards Portobello Bridge and observed a green Volkswagen Polo, registration number 97D64651 parked in the bus lane on the side of the road, with substantial damage to the front and drivers side of the car. He observed a male standing on the footpath. The Garda said he approached the car. The driver's window was down and the keys were in the ignition. He approached the male, who he now knows to be the Accused. The Accused was unsteady on his feet, the Garda got a strong smell of alcohol from his breath, and his eyes were glazed and bloodshot. The Garda said he formed the opinion that the Accused was under the influence of an intoxicant to such an extent as to be incapable of having proper control of the car in a public place. He asked if the Accused had been driving the car and then cautioned him. ‘You're not obliged to say anything unless you wish to do so but anything you do say will be taken down in writing and may be given in evidence.’ The Accused replied, ‘I was driving, I respect you, I drove from family and good people. I respect that. I am sorry, I'm an Arsehole.’ The Garda said his speech was slurred. The Garda recorded this statement in his Garda notebook. The Garda then arrested the Accused for drunk driving and cautioned him again. The Accused was then conveyed to Terenure Garda Station. He later gave a sample of blood and the sample of blood showed a concentration of 213 mg of alcohol per one hundred millimetres of blood, above the legal limit. A certificate from the Medical Bureau of Road Safety was handed into court by the Garda. No issue was taken with this part of the evidence for the purposes of the Case Stated.
8. Under cross-examination, it was put to the Garda that although the Accused's alleged admission to the Garda had been recorded in writing in his notebook, this statement had not been signed by the Accused. The Garda accepted that he had not asked the Accused to sign his notebook. When asked if there was any reason for not inviting the Accused to sign it, the Garda said that there was no particular reason.”
The case stated continues then to explain that an application was made by counsel on behalf of the Accused (i) to exclude the evidence given regarding the admission made by the Accused, and (ii) for a direction that there was no case to answer. The case stated (as amended) explains that the District Court judge was satisfied to deal with the application for the exclusion of the evidence, notwithstanding that the evidence had already been given, in circumstances where this was a summary trial in the District Court with no jury.
The application to exclude the evidence was made by reference to rule 9 of the Judges' Rules. The full text of this rule is set out under the next heading below.
The District Court judge records his findings as follows at paragraph 11 of the case stated.
“11. Having had regard to the aforementioned submissions, I delivered my decision on Friday, 22 July 2016. I agreed with [counsel for the Accused] that there had been a breach of the Judges' Rules and that said breach was unexplained. I stated that from the authorities, it is a matter for the trial court to determine whether the evidence should be excluded having regard to the circumstances in which the breach arises. Taking into account all of the evidence, I ruled that I would exercise my discretion to admit the evidence in this case. In so doing I had regard to the matters referred to by [counsel for the Director of Public Prosecutions] at paragraph 7 of her submissions. I also had regard to my finding that Garda Nerney was a credible witness. I further stated that the Accused had a case to answer on the five charges set out above.”
It is appropriate to pause here, and to set out the text of paragraph 7 of the written legal submissions on behalf of the Director of Public Prosecutions expressly cited by the District Court in the passage above.
7. However, the prosecution submit that this [a breach of rule 9] does not render it inadmissible. It is submitted that the court has a discretion and must take all circumstances into consideration. In the present...
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...the prosecution referred to a number of cases, including DPP v. Ebbs [2011] 1 IR 778, DPP v. Towson [1978] 1 ILRM 122, and DPP v. Khalael [2020] IEHC 33. In the course of his submissions, counsel on behalf of the accused said it was accepted that the only omission was the signature; the pro......