Eshwarprasadh Kessopersadh & Anor v Gearoid Keating & Ors, [2013] IEHC 317 (2013)

Docket Number:2005 2109 P
Judge:O''Malley J.
 
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THE HIGH COURT Record No. 2005 2109PBetween/ESHWARPRASADH KESSOPERSADH AND PATRICIA KESSOPERSADHPlaintiffs-and-GEAROID KEATING, DESMOND MCNALLY, GARY BIGLEY, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERALDefendantsJudgment of Ms. Justice Iseult O'Malley delivered the 9th July, 2013.Introduction1. 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 14th 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 Síochana, at and in the home of the plaintiffs on the morning of the 11th August, 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.Background9. Early in the morning of the 14th 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 Rosh en 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 investigation15. 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 restriction sign on Templeogue Road to where the casualty was lying" and a further 5 paces to the rear of the Golf.17. It transpired that Mr.O'Neill had been out with his two brothers that evening. Since it was too late for him to get a bus it was presumed that he was walking home. According to witnesses he had drunk about four or five pints. The toxicology tests showed a blood alcohol level of 350mg per 100ml and a urine alcohol level of 268mg per 100 ml. Although he was obviously well over the limit for driving, witnesses from the bar he had been in said that he had not shown any sign of incapacity.18. Mr. O'Neill was wearing a black jacket, brown trousers and black shoes.Garda findings in relation to the collision19. A report on the collision was prepared by Sergeant Calm P. Finn of the Accident Investigation Unit, Regional Traffic Division, who attended at the scene on the 15th March, 2004.20. Sergeant Finn noted that at the time of the accident the weather was fine although it had been raining earlier and the road was still wet.21. As a result of his observations, he reached the view that the pedestrian crossed the road from the driver's right-hand side and was struck by the car on its side of the road. The driver then braked and the pedestrian was thrown forward. Damage to the car was concentrated on the driver's side.22. Referring to the statements of the Fire Officer and the taxi driver, Sergeant Finn concluded that the pedestrian was struck on the offside front of the car near the driver and that there had been no skidding or braking before the impact.23. The road itself was described as being primarily a single lane carriageway with a special speed limit of 30 mph. There is street lighting but Sergeant Finn noted a shadow on the road near the collision locus.24. Sergeant Finn calculated the speed of the car at the instant of impact as being between 25mph and 31mph. He estimated, having regard to his age (56) and by reference to research carried out on walking speeds, that the late Mr. O'Neill was walking at three mph. Having regard to the evidence as to the point of impact and the relative speeds of the persons concerned he was of the view that Mr. O'Neill had walked seven metres on the road and that this took him 5.4 seconds. The driver of the car would have been between 60.48 and 73.82 metres back from the point of impact when the pedestrian commenced crossing the road. The impact took place at or near the centre white line.25. By reference to the position at which the car came to a stop Sergeant Finn calculated that driver's reaction time was between 1.3 and 2 seconds. The average driver reaction time, he says, is 1.5 seconds.26. At the hearing of this action no issue was taken with these calculations.27. In the opinion of Sergeant Finn, there was sufficient time and distance for the driver to react and avoid a collision.28. Sergeant Finn's report is undated and it is not entirely clear when the investigating Gardai received it.29. The Volkswagen Golf driven by Roshen Kessopersadh was examined by Garda Seamus Bonar, a Public Service Vehicle Inspector. Apart from the damage caused by the impact, the vehicle was in good mechanical condition with no defects.Contacts between the Kessopersadhs. their solicitor and the Gardai30. Garda Plunkett's evidence was...

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