DPP v Lafferty & Porter

• Jurisdiction: Ireland
• Judge: Keane C.J.
• Judgment Date: 22 February 2000
• Neutral Citation: 2000 WJSC-CCA 2992
• Court: Court of Criminal Appeal
• Date: 22 February 2000

2000 WJSC-CCA 2992

THE COURT OF CRIMINAL APPEAL

Keane, C.J.

Kelly, J.

O'Higgins, J.

87/99

94/99

DPP v. LAFFERTY & PORTER

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

v.

DARREN LAFFERTY AND STEPHEN PORTER

Applicants

Citations:

ROAD TRAFFIC ACT 1961 S53

ROAD TRAFFIC ACT 1961 S53(1)

ROAD TRAFFIC ACT 1968 S61

ROAD TRAFFIC ACT 1961 S53(2)

ROAD TRAFFIC ACT 1994 S49(1)(f)(i)

CROSS & TAPPER ON EVIDENCE 9ED 23

BERESFORD V ST ALBANS JUSTICES 1905 22 TLR 1

HALLET V WARREN 1929 93 JP 225

R V HORVATH 1972 VR 533

AG, PEOPLE V O'NEILL 1964 IJ 1

R V MCBRIDE 1962 2 QB 167

AG, PEOPLE V MOORE 1964 IJ 6

AG V GALLAGHER 1972 IR 365

Synopsis

Criminal Law

Dangerous driving causing death; circumstantial evidence; burden on prosecution in respect of offence of dangerous driving causing death; whether trial judge should have withdrawn case from jury; whether when the speed at which someone is driving is in issue, evidence of the speed at which that person was travelling a few moments earlier is admissible as circumstantial evidence; s.53 Road Traffic Act, 1961 as amended by s.61 Road Traffic Act, 1968 and by s.49 Road Traffic Act, 1994.

Held: Burden on prosecution is to establish that at the time and place specified in the indictment the applicant was driving the car in a manner that was dangerous to the public and caused the deaths of the victims; evidence of speed shortly before accident admissible circumstantial evidence; trial judge correct not to withdraw case from jury; application for leave to appeal dismissed.

Director of Public Prosecutions v. Lafferty - Court of Criminal Appeal: Keane C.J., Kelly J., O'Higgins J. - 22/02/2000

The applicants were convicted in the Circuit Court of dangerous driving causing death and were each sentenced to a term of three years imprisonment. In addition the second applicant was sentenced to six months imprisonment for the unauthorised taking of a car, the sentences to run concurrently. The charges arose out of a collision involving a car being driven by the first applicant and another car in which a driver and a passenger were killed. A car that the second applicant had been driving was found near the scene of the first collision. The applications sought leave to appeal arguing that the trial judge should have withdrawn the case from the jury. The court rejected the applications. In the case of the first applicant, the trial judge was correct in concluding that there were issues which should properly be determined by the jury and he was correct in refusing the application for a direction. In the case of the second applicant, the trial judge was also correct in refusing a direction. The jury were entitled to conclude beyond a reasonable doubt that his admittedly dangerous driving was a causative factor in the collision.

1 JUDGMENT of the Court delivered the 22nd day of February,2000,by Keane C.J.

Introduction

2 At approximately 2.40 am on the 20th July 1997, two cars collided violently with each other on the road from Stranorlar to Killygordon in County Donegal. The driver and front seat passenger in one of the cars, a Vauxhall Astra, Aidan McGrath and his brother Damien, were killed instantly in the collision. The other car, a Renault Laguna, was beingdriven by the first named applicant. A car being driven by the second named applicant, a Ford Escort, and which had been travelling in the same direction as the car being driven by the first named applicant was found 700 yards further on in a damaged condition, having driven off theroad.

3 The second named applicant, having been cautioned, made a statement after the accident to the investigating Garda. He said that he had about 7 pints of beer in McBride's pub in a village called The Curragh near Killygordon on the night of the accident. Following an argument with the first named applicant as to the merits of the car he was driving, they proceeded to race each other out of the village, the second named applicant driving the Ford Escort which he had taken from his brother's house without the latter's permission. The second named applicant said in his statement that in the course of the ensuing journey, he passed out the first named applicant's car when he (the second named applicant) was driving at a speed of 100 miles per hour. Shortly, thereafter, his own car went off the road.

4 Both applicants were charged on separate counts of dangerous driving causing death contrary to s.53 of the Road Traffic Act 1961as amended. In addition, the second named applicant was charged with taking possession of and using the Ford Escort without the consent of the owner, to which charge he pleaded guilty.

5 Both applicants were returned for trial to the Circuit Criminal Court sitting at Letterkenny. The trial took place before his Honour Judge Deery and a jury on the 29th and 30th July 1999, the applicants having pleaded not guilty to the charges of dangerous driving causing death. Both applicants were found guilty by the jury and each of them was sentenced to a term of three years imprisonment. The second named applicant was sentenced to six months imprisonment for the unauthorised taking of the car, the sentence to run concurrentlywith the sentence of three years. An application for leave to appeal having been refused by the trial judge, both the applicants have now applied to this court for leave to appeal.

The course of the trial

6 As already noted, the driver and the front seat passenger in the Laguna were killed in the collision. The only other occupant of the car, Mrs. Breege McGrath, the wife of Damien McGrath, was asleep at the time of the collision. Neither of the applicants gave evidence. In the result, there was no evidence from witnesses who observed the collision between the Laguna and the Astra.

7 Mrs. McGrath in evidence said that she, her husband and her brother in law had set out at 1.30 in the morning to go to the wake of thebrothers" grandmother in Sion Mills, the reason for the late departure being that her husband, who was a musician, was playing at a wedding in Dunglo. They took the route through Fintown, Ballybofey and Stranorlar and as they set out for Fintown they were travelling at approximately 40 miles per hour. They considered stopping in Ballybofey for a meal, but as there was a big crowd there, they decided to continue. Thereafter she fell asleep and did not wake up until after the accident. Dr. Gerry O'Dowd, who carried out the autopsies, said that an analysis of the blood taken from the driver, Aidan McGrath, showed that there was no evidence of his having taken alcohol or other drugs.

8 The Gardai who investigated the accident gave evidence as to the positions of the two vehicles on the roadway, the nature of the damage to them and other features of the scene of the accident. They also produced a map prepared by them and a set of photographs. Both the Laguna and the Astra were found to be on the left hand side of the road as one travels fromKillygordon to Stranolar. Since the evidence also established that the Astra was travelling at the time from Stranolar and the Laguna was travelling towards Stranolar, it followed that the Laguna was on its correct side of the road and the Astra on its incorrect side. The Laguna was on its side, with the rear of the car in the hedge. The engine of that car was missing, and was found some 92 feet further along the road. The Astra was on the grass verge and partly in the hedge on the same side of the road facing in the Killygordon direction. Both cars were extensively damaged in the collision.

9 The photographs also showed a significant quantity of debris on the left hand side of the road facing towards Stranolar. Immediately before the scene of the collision, there were tyre marks which went in an arc from the left hand side of the road facing Stranolar over to the right hand side. The photographs showed damage to the hedge on that side of the road where the tyre marks ended. While, as already noted, indeed, damage to both vehicles was extensive, there was no damage to the front of theAstra.

10 Garda Fleming, who was one of the investigating Gardai also gave evidence that he had found a number of objects, such as broken bits of plastic, broken head lights, etc. in the area of the damaged vegetation, which appeared to have come from the Laguna, since some of them had the Renault logo.

11 Stephen McDaid, a neighbour of the applicant, gave evidence that he was in McBride's pub in Killygordon on the night of July 19th, 1997. He said that he saw both the applicants in the pub that night and later on saw the first named applicant sitting in the Laguna. His evidencecontinued:-

"Q49Q And did he say anything when he was in the car, did you hear him say any thing?

A. He had the window down and he said who thinks the Laguna is bad now."

12 Eunan McBride, the owner of the pub of that name, gave evidence that both applicants arrived in his premises with some other people between 9 and 10 on the evening of the 19th July and stayed there until the public house was closed at approximately 1.45 am. He said that that group was the last to leave the premises. His evidence continued as follows:-

"Can you remember whether or not Stephen Porter and Darren Lafferty were buying drinks or drinks being bought for them or what was the situation?"

A	No, they were all drinking on their own.
391Q	And can you recall what they were drinking?
A.	Pints of larger.
392Q	Now, it seems that there is a system in there whereby if you want to order a Chinese you can order it from the bar. Is thatright?
A.	That's right, yes.
393Q	That was done, is that correct?
A.	That's right.

394Q	And do you recall a carryout also being bought.
A.	That's right, yes.
395Q	And can you recall how much was in that carryout?
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