DPP v Michael O'Shea

JurisdictionIreland
JudgeMr. Justice Mahon
Judgment Date15 December 2015
Neutral Citation[2015] IECA 319
Docket NumberAppeal No.: 19/2015
CourtCourt of Appeal (Ireland)
Date15 December 2015

Sheehan J.

Mahon J.

Edwards J.

The People at the Suit of the Director of Public Prosecutions
Respondent
- V -
Michael O'Shea
Appellant

[2015] IECA 319

Appeal No.: 19/2015

THE COURT OF APPEAL

Conviction — Careless driving — Liability — Appellant seeking to appeal against conviction — Whether trial judge erred in law in directing that the offence of careless driving causing death was an offence of strict liability

Facts: The appellant, Mr O’Shea, was driving on the public road at Graiguesallagh, Co. Kildare on 9th January 2013. As he approached roadworks, he collided with a JCB causing the death of Mr O’Sullivan. The deceased, who had been on traffic control duty at the roadworks and standing close to the JCB which was being used in the roadworks was struck and pinned between the appellant’s car and the JCB. The appellant maintained that he had been blinded by strong sunlight as he approached the locus of the accident, and also that there were no warning signs visible to him as he approached. Both the appellant and the JCB driver tested negative for alcohol. The evidence also indicated that the appellant was not driving at a fast speed and that his car was roadworthy. Other witnesses, including a garda and an ambulance driver, gave evidence that shortly after the accident they noticed while driving to the locus of the accident that the sun was in a low position. The appellant fully co-operated with the garda investigation in that he attended at the garda station and gave a full and complete account of what had occurred. On 12th November 2014, at Naas Circuit Criminal Court, the appellant was found guilty by a majority decision of a jury of one count of careless driving contrary to s. 52 of the Road Traffic Act 1961. The appellant was sentenced on 18th December 2014. He was fined €5,000 (with one year to pay, and three months in default of payment), and he was disqualified from driving for a period of four years. He was also directed to re-sit a driver competency test at the expiry of that disqualification period. The appellant appealed to the Court of Appeal against that conviction on the grounds that: 1) the trial judge erred in law in directing that the offence of careless driving causing death was an offence of strict liability; 2) in directing that it was in such a category, the trial judge erred in not directing the jury as to the essential ingredients to any offence; 3) the trial judge erred in law by indicating to the jury that the State did not have to prove that the actions of the accused on the date were either intentional or reckless; 4) the trial judge erred in law in not directing the jury as to the concept of intention or to the concept of recklessness; 5) by not directing the jury, the onus of proof, which rests at all stages with the prosecution, was cast back onto the defence; 6) the trial judge erred in law on two occasions by informing the jury that they must not be worried as to the consequences of a guilty verdict. The respondent, the DPP, contended that the fact that following the completion of his charge to the jury the trial judge was requisitioned in relation to the matters which were the subject matter of the final ground of appeal but not in relation to the subject matter of the first five grounds of appeal should result in the disallowance of the first five grounds in line with the decision in DPP v Cronin [2006] IESC 9.

Held by Mahon J that the offences of dangerous or careless driving causing death are not offences of strict liability, referring to Mr Pierce’s Road Traffic Annotated Legislation 1961-2011. Mahon J held that the failure to raise a matter by way of requisition should not impede the court in its discretion to consider a ground of appeal which refers to an issue which is fundamental to the fairness of a trial, notwithstanding that the issue had not been raised in the course of the trial by way of requisition. The Court was satisfied that this threshold had been reached in this case, and that it would be fundamentally unjust to exclude the first five grounds of appeal for the reason contended by the respondent.

Mahon J held that he would allow the appeal in respect of grounds 1 to 5 inclusive on the basis that the trial judge’s classification to the offence as being a strict liability offence in the course of his charge to the jury was erroneous and had, at a minimum, the potential to confuse the jury in arriving at a determination. The final ground of appeal was rejected by the Court as the trial judge was advising the jury to ignore the question of penalty or sentence in the event of a guilty verdict being returned in the context of charging the jury as to the choices they had in terms of a verdict.

Appeal allowed.

Judgment (ex tempore) of the Court delivered on the 15th day of December 2015 by Mr. Justice Mahon
1

On 12th November 2014, at Naas Circuit Criminal Court, the appellant was found guilty by a majority decision of a jury of one count of careless driving contrary to s. 52 of the Road Traffic Act 1961 (as substituted by s. 4 of the Road Traffic Act No. 2 2011). This is an appeal against that conviction.

2

Following his conviction, the...

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2 cases
  • The People (at the suit of the DPP) v Clement Limen
    • Ireland
    • Supreme Court
    • 18 February 2021
    ...of submissions in the trial, should have been discussed with the trial judge before the closing speeches. Reference is also made to The People (DPP) v. O'Shea [2015] IECA 319 and to The People (DPP) v. G.(L.) [2003] 2 I.R. 517. In the latter case the convictions were quashed, despite the ......
  • The People (Director of Public Prosecutions) v O'Shea
    • Ireland
    • Supreme Court
    • 15 June 2017
    ...one of strict liability. That was, it was agreed, incorrect, and Mr O'Shea's appeal on this point to the Court of Appeal was successful ([2015] IECA 319). The appellant, the DPP, no longer sought to stand over the conviction but intended to proceed with a retrial. To that end she appealed t......

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