Eshwarprasadh Kessopersadh and Another v Gearoid Keating and Others

JurisdictionIreland
CourtHigh Court
JudgeMs. Justice Iseult O'Malley
Judgment Date09 July 2013
Neutral Citation[2013] IEHC 317
Date09 July 2013

[2013] IEHC 317

THE HIGH COURT

Record No. 2109P/2005
Kessopersadh v Keating & Ors
Between/
ESHWARPRASADH KESSOPERSADH AND PATRICIA KESSOPERSADH
Plaintiffs
-and-
GEAROID KEATING, DESMOND MCNALLY, GARY BIGLEY, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL
Defendants

CRIMINAL JUSTICE ACT 1984 S4

ROAD TRAFFIC ACT 1961 S53(3)

CRIMINAL LAW ACT 1997 S4(3)

CRIMINAL LAW ACT 1997 S6(2)

ROAD TRAFFIC ACT 1961 S53

PEOPLE v QUINLAN 1962 96 ILT 123

ROAD TRAFFIC ACT 1961 S52

DPP v O'DWYER 2005 3 IR 134 2005/22/4475 2005 IECCA 94

DPP v QUILLIGAN & O'REILLY 1986 IR 495 1987 ILRM 606 1986/5/427

HUSSIEN & ORS v CHONG FOOK KAM & ANOR 1970 AC 942 1970 2 WLR 441 1969 3 AER 1626

WALSHE & BEDFORD v FENNESSY & ORS 2005 3 IR 516 2005/58/12098 2005 IESC 51

OFFENCES AGAINST THE STATE ACT 1939 S30

DPP (GARDA O'MAHONY) v O'DRISCOLL UNREP SUPREME 1.7.2010 2010/17/4045 2010 IESC 42

CONWAY v IRISH NATIONAL TEACHERS ORGANISATION 1991 2 IR 305

SHORTT v CMSR OF AN GARDA SIOCHANA & ORS 2007 4 IR 587 2007/56/11945 2007 IESC 9

Action for damages - Residential dwelling searched - No consent - Legality of action - Power to arrest without a warrant - Dangerous driving - Suspicion - Reasonable cause for suspicion

Facts: The plaintiffs in this action for damages were a married couple, whose son Roshen Kessopersadh in 2004 was involved in a road accident which resulted in the death of pedestrian Laurence O”Neill. Following this, Gearoid Keating, Desmond McNally and Gary Bigley (all members of An Garda Síochana) entered the plaintiff”s house, and searched it without consent.

The defendants contended that their decision to enter the house was on the lawful grounds of arresting Roshen on suspicion of committing the offence of ‘dangerous driving causing death’. The plaintiff”s told the defendants that Roshen was not home at that time. The Gardaí searched the house to confirm whether this was true. It was noted that the central issue in the case concerned the legality of this search.

The plaintiffs submitted that ‘suspicion as to the guilt of their son for the offence in question could not have been reasonably formed or held’. They contended that the evidence of the investigation into the accident confirmed that suspicion of dangerous driving causing death was not reasonable. Moreover, they submitted that the Gardaí should have been aware of Roshen”s absence as a result of multiple assurances by the plaintiffs that he was abroad at the time of the Gardaí visit.

The court held that the key question to be answered in this case was whether there was a reasonable suspicion of dangerous driving. The court held that the finding of Garda Keating ‘fell far short of an objectively justifiable suspicion’. He was found to have failed to distinguish between careless driving and the arrestable offence of dangerous driving - as ‘none of the potential explanations that he considered could have brought the case beyond the category of carelessness and up to the level of dangerousness’. It was concluded that no reasonable cause for suspicion of dangerous driving causing death existed, and that the search of the house was therefore illegal. On the question of damages, the court held that the plaintiffs were entitled to compensatory damages for the unlawful trespass into their home; and for distress and anxiety..

The application was allowed and damages calculated at €50,000 awarded to the plaintiffs.

Introduction
1

The plaintiffs are a husband and wife who have lived in Templeogue in Dublin for over 30 years. The first named plaintiff is an orthopaedic surgeon, now retired from surgery but still seeing patients in his home. The plaintiffs have eight children, all of whom are adults, who grew up in the family home in Templeogue.

2

On the 14 th March, 2004 the plaintiff's son Roshen, then a young man of 22, was involved in a road traffic accident which, tragically, caused the death of a pedestrian named Laurence O'Neill.

3

This action for damages arises, in essence, from the actions of the first, second and third named defendants, who are all members of An Garda Síochána, at and in the home of the plaintiffs on the morning of the ll thAugust, 2004. It is common case that these defendants entered and, to some extent at least, searched the dwelling of the plaintiffs and that they did so without consent. The central issue in the case is whether they did so lawfully.

4

In summary, the case on behalf of the defendants is that the Gardaí entered the house because the first named defendant, Sergeant Keating, had the lawful purpose of arresting Roshen Kessopersadh on suspicion of having committed the offence of dangerous driving causing death. As it happened, Roshen was not there when they called and his parents told the Gardaí so. However, the defendants maintain that the Gardaí were entitled to enter and search the house to verify that this was true.

5

The second and third named defendants were members of the Traffic Corps, who took no part in the investigation and were present at the plaintiffs' house to assist the first defendant.

6

The plaintiffs contend that, firstly, suspicion as to the guilt of their son for the offence in question could not have been reasonably formed or held. In this regard they point, primarily, to the state of the evidence in relation to the accident. Ultimately, Roshen was charged only with the lesser offence of careless driving and was acquitted on that charge. Secondly, they say that the Gardaí should have been aware, because they had been previously informed and were told again by the plaintiffs on that morning, that Roshen was in fact abroad when the Gardaí came to the house.

7

It is a feature of the case that different Gardaí took different views as to the appropriate course of action available to them in the light of the evidence. It may therefore be necessary to point out at this stage that the issue to be determined by the court is not who was right as to whether Roshen Kessopersadh had in fact committed the arrestable offence of dangerous driving causing death. Rather, the first issue is whether or not the officer who intended to arrest him suspected with reasonable cause that he had done so. To answer this question it will be necessary to examine the evidence in some detail.

8

If that question is answered in the affirmative, the issue then arises as to whether the statutory conditions for entering a dwelling without the consent of the occupiers were fulfilled.

Background
9

Early in the morning of the 14 th March, Roshen Kessopersadh was driving a Volkswagen Golf near his home on Templeogue Road in Templeogue. He was apparently on his way to collect his sister from a dinner party. Mr. Kessopersadh was fully licensed and insured and there is no suggestion that he had been drinking. At about 1.20 am he was involved in the fatal collision with Mr. Laurence O'Neill.

10

A taxi driver named Mr. McCabe, who did not see the accident but heard it, was the first person at the scene. A Dublin Fire Brigade ambulance arrived soon after and took Mr. O'Neill to hospital. Garda Brian Plunkett, who had been on patrol in the area, was the first Garda on the scene. Garda Plunkett spoke to Roshen Kessopersadh, who gave him his details. According to Garda Plunkett's contemporaneous note, Roshen said "I was driving along Templeogue towards Terenure, I didn't see him he just stepped out, I think from the middle of the road." He also said that he had been on his way to collect his sister. Roshen made no further statement in the investigation, a fact that will be considered below. The plaintiffs arrived at the scene and he went home with them.

11

Inspector James Flood, who was deployed as Patrol Officer that night, arrived about 3 am. He and Garda Plunkett made various observations in relation to the location of the collision by reference to the position of the car and debris from it, the location of Mr O'Neill's cap and other material.

12

At 5.30 am the death of Mr. O'Neill was confirmed.

13

At about 7.30 that evening Inspector Flood and Garda Plunkett called to the plaintiffs' house. According to the plaintiffs, the Gardaí spoke to their son in their presence and made some notes but it is common case that they did not take a statement. Mr. Kessopersadh Sr. thinks the conversation lasted 30 to 40 minutes, while Mrs. Kessopersadh says it was about 20. It appears that they had contacted their solicitor, Mr. Noel O'Hanrahan, during the day. At some stage, but perhaps not on that day, he advised them that Roshen should not make a statement. Mr. Kessopersadh says that the Gardaí did say that Roshen would have to go to Terenure Garda Station to make a statement. He and his wife both say that they told the Gardaí that evening that Roshen would be going to New Zealand at some stage to visit his sister, and that they were told to notify the Gardaí when the dates were confirmed.

14

Garda Plunkett has denied being told that at any stage and there is no reference to it in his notes. He says that he explained to Roshen Kessopersadh what way the investigation would proceed, that he was responsible for taking statements and putting the file together. It is agreed that he requested Roshen to come to the station and make a statement.

The investigation
15

There were no independent witnesses at the scene. A Garda checkpoint at the location and public appeal for information did not result in anyone coming forward. Mr. McCabe, the taxi driver who had been in the vicinity, made a statement in which he described hearing a bang and knowing that it was an accident. It is of some relevance that he did not refer to hearing the sound of braking.

16

Fire Officer Paul O'Reilly also made a statement in which he described measuring 11 paces "from the tonnage...

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3 cases
  • Rozmyslowicz v The Minister for Justice and Equality
    • Ireland
    • Court of Appeal (Ireland)
    • 17 August 2018
    ...was in the dwelling. In this regard Fullam J. followed the analysis contained in the judgment of O'Malley J. in Kessopersadh v. Keating [2013] IEHC 317 where she set out the relevant principles regarding the reasonable suspicion requirement contained in the parallel provisions found in s. ......
  • John O'Connell v Building and Allied Trades Union, Edward Morris, Patrick O'Shaughnessy and Michael McNamara
    • Ireland
    • Court of Appeal (Ireland)
    • 15 October 2021
    ...absence of an apology, on its own, is insufficient to entitle a plaintiff to an award of aggravated damages (see Kessopersadh v. Keating [2013] IEHC 317, para. 96 . It is open to this Court, as it was open to the High Court, to consider awarding the appellant aggravated damages even if a cl......
  • McNulty v Commissioner of an Garda Síochána
    • Ireland
    • High Court
    • 9 November 2016
    ...what I believe to be an over-zealous approach by the garda. 77 I consider the judgment of O'Malley J. in Kessopersadh v. Keating & Ors. [2013] IEHC 317 to assist me in arriving at the correct approach. She found that the plaintiffs had been understandably upset as a result of an unlawful se......

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