Eviston v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 26 January 2001
• Neutral Citation: [2001] IEHC 4
• Court: High Court
• Date: 26 January 2001

[2001] IEHC 4

THE HIGH COURT

No. 101JR 1999

EVISTON v. DPP

JUDICIAL REVIEW

BETWEEN

LINDA EVISTON

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Citations:

ROAD TRAFFIC ACT 1961 S53(1)

ROAD TRAFFIC ACT 1961 S2(a)

ROAD TRAFFIC ACT 1961 S55

ROAD TRAFFIC ACT 1984 S49(1)(f)

PROSECUTION OF OFFENCES ACT 1974 S6

MCCORMACK, STATE V CURRAN 1987 ILRM 225

H V DPP 1994 2 IR 589

R V

DPP EX-PARTE C 1995 1 CAR 136

R V COMMISSIONER OF POLICE OF THE METROPOLIS EX-PARTE BLACKBURN 1968 2 QB 118

MCDERMOTT RES JUDICATA & DOUBLE JEOPARDY (1999) PARA 22.22

CASEY IRISH LAW OFFICERS 1996 267

HAMILL V DPP UNREP BARRINGTON 18.5.1983

O'CONNOR V DPP 1987 ILRM 723

PROSECUTION OF OFFENCES ACT 1974 S2(5)

KEEGAN, STATE V STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

PROSECUTION OF OFFENCES ACT 1974 S6(1)(a)

PROSECUTION OF OFFENCES ACT 1974 S6(1)(b)

PROSECUTION OF OFFENCES ACT 1974 S6(2)(a)(i)

PROSECUTION OF OFFENCES ACT 1974 S6(2)(a)(ii)

Synopsis:

Criminal Law

Criminal; reviewability of DPP's decisions; applicant had been involved in fatal road accident; original decision of respondent not to prosecute applicant had been reversed following internal review; internal review had resulted from letter by deceased's father to respondent outlining family's distress at decision not to prosecute; whether respondent had power to review and reverse decision not to prosecute in absence of good and sufficient reasons; whether, in light of representation made to applicant that prosecution would not be brought against her and absence of any new evidence of probative value, decision of respondent to reverse decision arbitrary and perverse; whether respondent complied with his own internal review guidelines; whether respondent complied with his espoused policy principles; whether respondent precluded from considering a representation made by person involved or member of his/her family designed to influence decision to bring a prosecution; s.6, Prosecution of Offences Act, 1974;

Held: Relief granted; respondent not precluded from considering representation made by person involved or member of his/her family designed to influence decision to bring prosecution.

Eviston v. D.P.P. - High Court: Kearns J. - 26/01/2001 - [2002] 3 IR 260 - [2002] 1 ILRM 134

The applicant had been involved in a road traffic accident which resulted in the death of a driver of another vehicle. Following investigation a decision was taken by the DPP not to prosecute the applicant. After representations from the family of the deceased the decision not to prosecute was reversed. The applicant sought to quash the decision of the DPP to prosecute. Kearns J held that in the circumstances the decision by the DPP to reverse the original decision and re-instate a prosecution was arbitrary and perverse. The relief sought would be granted.

1 Mr. Justice Kearns delivered on the 26th day of January, 2001

2 Linda Eviston is a young married woman from Fossa, Killarney, Co. Kerry.

3 On Saturday, 27th June, 1998, she drove the family car from Killarney to Kilkenny to visit her sister who was then having a baby. She was accompanied on the journey by her son, Eric who was then aged 3 years.

4 On Sunday, 28th June, 1998, she left Kilkenny at about 4.50p.m. in bright sunny conditions to return to Killarney. This is a journey of approximately 3 hours. She was again accompanied by her son, Eric, who was strapped into a baby seat in the rear of the car.

5 She got a puncture in the back left wheel of her car in Cashel. She could not change the wheel herself but called into a bed and breakfast establishment where two men volunteered to change the wheel for her. This delay took about forty-five minutes before she continued her journey. She passed through Mallow and was heading towards Killarney at approximately 50–55m.p.h.. Her son was asleep in the baby seat in the rear of the car. As she approached the crossroad to Cullen, Co. Cork, her car suddenly and without warning pulled across to the right hand side of the road. She described the moment being "as if the steering had taken on a life of its own". She saw a black motor car coming towards her which took evasive action by swerving across to its incorrect side. Unfortunately Mrs Eviston succeeded in steering her car back to her correct side and the front left hand sides of both cars collided.

6 Tragically the driver of the other vehicle, Tony Moynihan who was completely blameless in the circumstances, died as a result of the injuries he sustained in the collision.

7 The accident was investigated by the Gardaí in Millstreet, Co. Cork. Notice of Intention to Institute a Prosecution was served on the applicant on the 1st July, 1998. The applicant co-operated fully with the investigation, furnishing a written signed statement dated the 3rd of September 1998.

8 She also forwarded to the Gardaí copies of her Consultant Engineer's Reports, incorporating a Report dated the 5th of July 1998 from W.J. Rowley and Associates and letters from the same firm dated 25th August, 1998, 31st August, 1998, and 1st October, 1998.

9 The engineers found that the wheel which had been taken from the boot to replace the puncture had deflated completely causing, in their view, a swerving action of the car, resulting in it going out of the drivers control. The said wheel and tyre were in a deflated state after the accident but showing no defect or mark that might have suggested accident-related damage. It is the engineer's view that this tyre was progressively losing pressure while it was a spare in Mrs Eviston's vehicle and that it was greatly reduced in pressure when it was fitted to the car shortly before the accident took place.

10 The Gardaí completed their investigations, and forwarded a file to the respondent's office where it was received on the 21st October, 1998. Directions were sought as to whether or not a prosecution should ensue arising out of the road traffic accident in question. The Affidavit of Domhnall Murray, Professional Officer in the respondent's Office, sworn on the 22nd November, 1999, stated that the case was considered, in accordance with normal practice, by a professional officer of the respondent's Office. It was decided that no prosecution against the applicant should be initiated. A direction to that effect was communicated by letter to Frank Nyhan, State Solicitor for Co. Cork, on the 30th November, 1998. The applicant, through her solicitor, was informed of the decision in early December.

11 Unbeknownst, however, to the applicant, the father of the deceased, Mr Anthony Moynihan, wrote to the respondent on the 16th December, 1998, a letter in the following terms:-

"Mr Eamon Barnes. DPP	Tony Moynithan,
14–16 Merrion Street	Coalpits,
	Cullen,
Dublin 2	Mallow,
	Co. Cork
16.12.98

12 Re: Fatal Accident on June 28th 1998 involving Mrs Linda Eviston and Anthony Moynihan Jar.

13 Dear Sir

14 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.

15 Our whole family have been devastated by your decision not to bring charges of any description against Mrs Eviston. No works 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.

16 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.

17 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.

18 Anthony Moynihan"

19 This letter was disclosed as an exhibit in the Affidavit of Domhnall Murray, sworn on behalf of the respondent. who in his Affidavit states that in consequence (i.e. of the letter) the decision not to prosecute was reviewed.

20 His Affidavit continues as follows:-

21 2 "6. In accordance with the practice of the Office when a review is granted it is conducted thoroughly and by way of complete re-examination of the case. It is usually conducted by a professional officer other than the officer who took the original decision. The Office does not experience any difficulty in altering the original decision where that is considered to be the correct course. A full summary of the review procedure of the Officer is contained in the Director's Annual Report.

22 7. Following a review conducted according with the established procedure of the Office, a decision was made that a charge pursuant to Section 53(1) and Section (2)(a) of the Road Traffic Act 1961, as amended, should be preferred against the Applicant. A direction to that effect was communicated to Mr Frank Nyhan, State Solicitor, by letter of the 11th February, 1999."

23 Mr. Moynthan's letter was received in the respondent's Office on the 17th December 1998. Within six days of receipt of the letter (which in effect comprised only four working days because of the intervention of a weekend), the Gardaí in Millstreet made application on the 23rd December, 1998, on behalf of the respondent, for the issue of a Summons to the applicant. This application alleged that on the 28th June, 1998, she did drive a vehicle registered 89 KY 2955 in a manner (including speed) which having regard to all the circumstances of the case (including the then actually was and might reasonably be expected...