DPP v Martin Feehan
| Jurisdiction | Ireland |
| Judge | Mr Justice McCarthy |
| Judgment Date | 29 March 2022 |
| Neutral Citation | [2022] IECA 82 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Court of Appeal Record No. 38/2020 |
[2022] IECA 82
Edwards J
McCarthy J
Kennedy J
Court of Appeal Record No. 38/2020
THE COURT OF APPEAL
Conviction – Dangerous driving – Careless driving – Appellant seeking to appeal against conviction – Whether the trial judge erred in law in his explanation of the difference between dangerous driving and careless driving in answer to the jury’s question about the same
Facts: The appellant, Mr Feehan, was convicted on one count of dangerous driving causing serious harm to a passenger in his own vehicle, one Ms Hallihan, contrary to s. 53 of the Road Traffic Act 1961 as inserted by s. 4 of the Road Traffic (No. 2) Act 2011. The appellant appealed to the Court of Appeal against conviction. The grounds of appeal in respect of conviction were as follows: (a) the trial judge erred in law in his explanation of the difference between dangerous driving and careless driving in answer to the jury’s question about the same; (b) the trial judge erred in fact and in law in failing to summarise the factual matters on relevant issues; and (c) the trial judge erred in law in refusing the appellant’s application for a direction in the case.
Held by the Court that: (a) a charge must be taken as a whole and taking the matter on that basis the level of fault to prove the charge must have been clear to the jury; (b) the judge’s understanding was an understanding legitimately open on the evidence, what the judge gave was his understanding of the evidence in summary form and a summary was at most required, and the judge was not required to accept counsel’s version of the evidence; and (c) this case was wholly exceptional in that the appellant had a full trial before the District Court when every aspect considered relevant could have been teased out and no doubt was.
The Court rejected all grounds of appeal and dismissed the appeal against conviction.
Appeal dismissed.
JUDGMENT of the Court delivered on the 29th day of March 2022 by Mr Justice McCarthy
This is an appeal against conviction and sentence. The appellant was convicted on one count of dangerous driving causing serious harm to a passenger in his own vehicle, one Bríd Hallihan, contrary to section 53 of the Road Traffic Act 1961 as inserted by section 4 of the Road Traffic (No. 2) Act 2011. She was very seriously injured. This judgment pertains to conviction.
Because of the issues which have been raised on appeal we think it appropriate to set out the somewhat unusual sequence of events prior to the trial. We have not been given the date upon which the prosecution was initiated but in any event the appellant was first prosecuted in the District Court on the basis that the offence was a summary one. It is not and may be dealt with only on indictment. No objection was raised on behalf of the appellant, however, to submitting to what was in fact a nullity and after summary trial on the 21st of March 2016, the appellant was convicted. An appeal was then taken to the Circuit Court and was apparently adjourned on a number of occasions. Subsequent to the conviction and apparently in 2017, it was sought to quash it and apparently judgement was given in those proceedings in May 2018. We are given little detail about them, but the moving party was the respondent. It seems that the parties were labouring under a common mistake as to the jurisdiction of the District Court and that this misconception persisted for some considerable time after conviction.
On the 16th of February 2015 the appellant was driving his blue Citroen Berlingo van on the main road between Mallow and Cork at Glencaum, Grenagh, County Cork. In particular, he was travelling on the south bound, overtaking, lane (“the overtaking lane”) where it merged with what we might term the slow, ordinary, or single lane (“the single lane”), the traffic on which had priority. The prosecution's case was that as the overtaking lane came to an end the appellant was travelling too fast to slow down sufficiently to yield to an articulated lorry travelling in the single lane and when there had, over some distance, been no room for him to rejoin the latter lane. It was contended that the appellant lost control of his vehicle and spun across the road onto the Cork to Mallow carriageway where traffic was travelling in the opposite direction in consequence of which collisions occurred between a number of vehicles.
The appellant's case at bottom was that since there was traffic behind him on the overtaking lane he couldn't slow down or stop, that there was simply no room for him to rejoin or enter the single lane, and that as he drew abreast of the articulated lorry that vehicle swerved out slightly whereby the left hand side of his vehicle and the right rear of the lorry struck each other (it is to be inferred lightly, since he used the word “ nudged” to describe the impact) as a result of which he lost control of his own vehicle. The driver of the lorry, a Mr O'Toole, was adamant that no such collision had occurred, that he had not swerved out and had driven straight ahead at the point of the merger of the lanes. It was contended on the appellant's behalf that the configuration of the roadway where the merger took place was, to put it no further, confusing or out of the ordinary in that there was a sense in which the slow lane merged into the overtaking lane – by that was meant that if one was travelling on the slow lane it would be necessary for one to veer to the right to join the single carriageway after merger rather than the more usual arrangement whereby vehicles being driven in the fast lane veer into the single lane.
The evidence of one Mr Shiel was that he was travelling in the fast lane too, some “ few hundred” metres, as he described it, behind the appellant. Again, this witness's evidence is of importance on this appeal not just because of what he said he did and saw but also because of an issue on the charge as to whether or not the judge accurately reprised what he had said. He said he was in what he described as a line of traffic with a number of vehicles. There were a number of heavy goods vehicles on his left and he overtook two vehicles. He described himself as “maybe a couple of hundred metres… I don't know what distance behind the chemical truck [Mr O'Toole's vehicle] and a blue van [the appellant's vehicle]”. He went on to state that the appellant's vehicle, as he put it, “lost control and went spinning across the road into oncoming traffic”. He described himself as being “a distance back” and as trying to “keep to the left and out of the way as much as I could. I was conscious that there were more trucks behind me, so I didn't want to stop suddenly and cause another accident on my side… so I pulled into stop on the left-hand side…”. He did not see the lorry and the van collide. He explained in answer to a question about the latter that he was “a distance back”. Pressed by counsel on whether or not he would accept that he was perhaps too far back to see a collision between the two, he responded by saying “probably not” and added that he did not think it had occurred.
There was no evidence other than that of the appellant that a collision (however slight) occurred with the lorry before the multivehicular collision; the lorry driver, Mr O'Toole, was adamant on this point. His evidence was to the effect that as the “two lanes were coming to an end” the appellant's car “kept going basically”. He said he saw the car approaching, and, thereafter “halfway up the [length of the] truck” – the latter vehicle was 15 metres in length. From the point of merger there was a double white continuous line on the road; he described the event as occurring in “milliseconds” and the sequence of events as he described it was that after he saw the van travelling by his side he saw it facing “totally the wrong way” and that it was “sideways basically” on what might be described as the “wrong side” of the road. The witness, on more than one occasion in cross-examination, said that he “followed the course of the road” – this was in answer to propositions by defence counsel that the “inside lane merges into the outside lane” but accepted, however, that whosoever was coming from the inside lane had to “tack” to the right when the lanes merged. It appears that he first saw the appellant's vehicle when he (Mr O'Toole) passed a sign indicating that the overtaking lane came to an end some 400 metres ahead, driving “very fast” and at a sign indicating a merger some 200 metres ahead, the appellant's vehicle was still in the outside lane. He rejected the proposition that he ought to have slowed down, in effect to permit the appellant's vehicle to overtake him. We might add that it was suggested a certain mark on the van was left by a collision between his vehicle and that of the appellant, a proposition put for the purpose of seeking to show that such a collision had occurred, a matter to which we return below.
Mr O'Toole's vehicle had a “dashcam”, a fact of some importance on this appeal; he stated that he gave the “chip” from it to a Garda Marie Gibbons. He had looked at the footage on it himself but there was, as he so put it, “nothing there” save “open road”. Garda Gibbons said she “viewed” the footage but said that:-
“the file wouldn't open. It wasn't working. So, there was nothing of evidential value to be gleaned from this because the file must been corrupted or something. It wouldn't open. So, I actually didn't view the file.”
It is not clear what occurred to the so-called chip, but she said it was downloaded onto a “file” which she did not have. She sought assistance from those she described as local [garda] camera experts and they were not able to open it. She said that Mr O'Toole had viewed [the footage] on the dashcam itself but not later on a computer.
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