Eviston -v- Director of Public Prosecutions, [2002] IESC 62 (2002)

Docket Number:88/01
Party Name:Eviston, Director of Public Prosecutions
Judge:Keane C.J. / McGuinness J. / Murphy J.



Denham J.

Murphy J.

McGuinness J.

Geoghegan J.








Judgment delivered the 31st day of July, 2002 by Keane C.J.


These are proceedings brought by way of judicial review in which the applicant seeks to restrain the respondent (hereafter "the DPP" ) from taking any further steps in a criminal prosecution brought against the applicant and arising out of the death of one Tony Moynihan in a road accident on the 28th June 1998. 38

The facts, insofar as they are not in dispute, are as follows. The applicant was driving from Kilkenny to Killarney, where she lives, on that day in a motor car jointly owned by her husband and herself. Her three year old son was strapped into a baby seat in the rear of the car. Near a crossroad in Cullen, Co. Cork, her car was in collision with another car being driven by Mr. Tony Moynihan, who died as a result of the collision.

In a statement to the gardai, the applicant said that, in the course of her journey from Kilkenny to the scene of the accident, the back left wheel of her car was punctured in Cashel, Co. Tipperary. Two people in a bed and breakfast there changed the wheel for her. As she approached the area of the accident, her car suddenly and without warning pulled itself across to the right hand side of the road: she said that it was as if the steering "had taken on a life of its own". She said that the back left wheel and tyre of her car were in a deflated state after the accident.

The applicant obtained a report from a firm of consulting engineers and assessors, W.J. Rowley and Associates Limited, who examined the tyre and wheel. They confirmed that the tyre was in a deflated state. They said "The tyre in question was in a deflated state and as it is a tubeless tyre it was obviously pushed off the rim. We note that the 1same wheel had given trouble to the owner in Cashel, where the tyre was replaced, and this may have been a case of the air slowly leaving the wheel, until, having reached a point of being under pressure, the car, in making a turn, caused the sealing between the tyre and the rim to open. This would have resulted in a quick let down of the remaining air in the wheel. Alternatively, it could have been a case of the car having been turned quickly on the road, at speed, where the sudden swerving would have caused the tyre to deflate, as it would have been under pressure already as a result of the air leaking out."

In a further report of the 25th August 1998, they said "We are satisfied, therefore, that the car could have gone out of the driver's control when the wheel deflated completely. It would also have caused the car to vibrate and veer to one side, as the driver would not have had any warning of the sudden deflation that was about to take place."

The applicant's solicitor furnished these reports to the member in charge at Millstreet Garda Station, Co. Cork and in early December, 1998, he was informed by the gardaí that the DPP had decided not to direct the issue of any prosecution in the matter. That information was communicated to the applicant by her solicitor.

On the 16th December 1998, the father of the late Mr. Moynihan wrote as follows to the respondent "I refer to the above accident in which my son Anthony Jnr. was fatally injured as a result of a collision between his vehicle and the vehicle being driven by Mrs. Eviston.

"Our whole family have been devastated by your decision not to bring charges of any description against Mrs. Eviston. No words could express the dreadful hurt and deep anguish which your inexplicable decision has caused my family. "We never have nor do we now seek revenge or retribution on Mrs. Eviston, for whom we have great sympathy, but we are duty bound to protect the good name of our late son. The only way we can do this is to have him publicly exonerated of all blame for

this tragic accident and we believe that the only place where this can rightfully be done is in a court of law. "I have personally contacted Minister John O'Donoghue in relation to this matter in the hope that he can use his good office to assist us in this most distressing matter.

" I appeal to you as a matter of urgency to reconsider your decision and proffer charges of some description against Mrs. Eviston so that justice can be done and be seen to be done."

On the 23rd December 1998, a District Court summons was issued against the applicant charging her with dangerous driving causing the death of Tony Moynihan. On the 13th January, 1999, the applicant's solicitor wrote to the DPP seeking an explanation as to why the decision not to prosecute had been reversed. On the 15th January, 1999, a professional officer in the office of the DPP wrote to the applicant's solicitor as follows

"This office is precluded from giving reasons for decisions, whether those decisions are to prosecute, or not to prosecute. "The decision not to prosecute in this matter was taken after a careful and comprehensive study of the garda file submitted here on the conclusion of the garda investigation into the matter.

"This office is conscious of the fact that, for various reasons, its decisions are effectively unappealable except in the limited context of judicial review. For this reason, among others, it has operated a system of internal appeal or review of decisions. It is regarded by the office as important that those having a personal or functional interest in the decisions should be at liberty to seek a review of any determination. Section 6 of the Prosecution of Offences Act 1974 has relevance in this regard. "The decision of the professional officers in the first instance accordingly fell to be reviewed comprehensively, and at the highest level. Following that review, the fresh direction referred to by you was issued."

The applicant on the 22nd March, 1999 was given leave by the High Court to apply by way of judicial review for an injunction restraining the DPP from taking any further steps in the prosecution of the proceedings. The two grounds in respect of which leave was granted were as follows:

"That the decision of the respondent not to prosecute the applicant was, once communicated to the applicant following the admitted completion of the garda inquiries, a final and conclusive decision and that the respondent was acting ultra vires, contrary to law and in breach of the applicant's constitutional and legal rights in purporting to reverse it."

"That if (which is denied) the respondent has power to review and reverse a decision not to prosecute (such decision having been made following the conclusion of garda inquiries and published and communicated to the applicant) that the respondent was guilty of a breach of the applicant's right to fair procedures and constitutional justice in failing to:"(1) To advise and/or warn the applicant at the time of communicating the said decision not to prosecute, that the respondent reserved the power to reverse the said decision."

A statement of opposition was filed on behalf of the respondent, grounded on an affidavit of Donal Murray, an officer in the DPP's office. In that affidavit, Mr. Murray referred to the summary of the review procedure of the office of the DPP set out in his annual report. A further affidavit was filed by Mr. Murray in which he said that the office did not receive any representation, either oral or written, by or on behalf of the Minister for Justice, Equality and Law Reform in connection with the matter.

The substantive hearing of the application came on in the High Court before Kearns J. In a written judgment, delivered on the 26th January, 2001, the learned High Court judge granted the relief sought by the applicant. It also appears from the judgment (although not from the order of the court) that, during the course of the hearing in the High Court, leave was given to the applicant to argue two additional grounds, i.e., :- "(1) The respondent acted on foot of an improper policy in purporting to claim unto himself an unfettered right to reverse his decision not to prosecute the applicant when the said decision not to prosecute had been communicated to the applicant following the admitted completion of the garda inquiries, and, in the premise, the respondent has acted ultra vires and in breach of the applicant's right to fair procedures;

"(2) in the absence of good and sufficient grounds for so doing, it was not open to the respondent to purport to exercise his power to reverse the decision not to prosecute the applicant when the said decision had been communicated to the applicant following the admitted completion of the garda inquiries and, in the premise, the respondent has acted ultra vires and in breach of the applicant's right to fair procedures."

The High Court Judgment.

In his judgment, the trial judge noted that it had not been suggested that any new facts or materials had come to light or that some new witness had become available when the DPP reversed his earlier decision not to prosecute. Describing that decision as "the formation of a contradictory view on the same material", the trial judge concluded "For the respondent to unmake his original decision and to reinstate a prosecution in such circumstances seems to me to be arbitrary and perverse."

Applying the test for irrationality laid down by Henchy J speaking for this court in The State (Keegan) -v- Stardust Victims Compensation Tribunal [1986] IR 642, he was of the view that no sensible person who applied his mind to the matters to be decided by the DPP could have arrived at such a decision.

The trial judge was satisfied that, on that ground alone, the applicant was entitled to the relief which he sought. However, he said that he would also be prepared to decide the case in her favour on another ground, i.e., that the DPP had failed to comply with his own review...

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