Eviston v DPP

• Jurisdiction: Ireland
• Judge: Keane C.J.,McGuinnness J.,MR JUSTICE FRANCIS D MURPHY
• Judgment Date: 31 July 2002
• Neutral Citation: [2002] IESC 62
• Court: Supreme Court
• Docket Number: [1999 No.101
• Date: 31 July 2002

EVISTON v. DPP

BETWEEN:

LINDA EVISTON

APPLICANT/RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT/APPELLANT

[2002] IESC 62

Keane C.J.

Denham J.

Murphy J.

McGuinness J.

Geoghegan J.

88/01

THE SUPREME COURT

Synopsis:

JUDICIAL REVIEW

Criminal law

Role of DPP - Legitimate expectation - Road Traffic accident - Fair procedures - Administration of justice - Reversal of decision not to prosecute - Whether decision of DPP capable of review - Whether decision of DPP ultra vires - Road Traffic Act, 1961 - Prosecution of Offences Act, 1974 (80/2001 - Supreme Court - 31/7/2002)

Eviston v DPP - [2002] 3 IR 282 - [2003] 1 ILRM 178

Facts: 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. In the High Court 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. The DPP appealed against the judgment contending the case had been decided in the High Court on grounds in respect of which leave had not been granted. It was submitted that the DPP was in no way precluded from reviewing an earlier decision either to prosecute or not to prosecute.

Held by the Supreme Court (by a majority verdict) in dismissing the appeal. Keane CJ, with Denham J agreeing, held that the DPP was entitled to review an earlier decision not to prosecute and arrive at a different verdict. In the circumstance there was no new evidence before the DPP, the applicant had not been informed that the decision would be reviewed and had not been afforded the fair procedures to which she was entitled. The appeal would be dismissed. Murphy J (dissenting) held that the DPP was entitled as a matter of law to change his mind and was not estopped from prosecuting the applicant. McGuinness J, with Geoghegan J agreeing, held that once the DPP had informed the applicant without any caveat that no prosecution would issue it was a breach of fair procedures to reverse that decision.

Citations:

PROSECUTION OF OFFENCES ACT 1974 S6

KEEGAN, STATE V STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 632

MCCORMACK, STATE V CURRAN 1987 ILRM 225

H V DPP 1994 2 IR 589

DPP V BYRNE 1994 2 IR 236

MCMAHON V LEAHY 1984 IR 525

HEALY, STATE V O'DONOGHUE 1976 IR 325

O'CALLAGHAN, STATE V O'HAIGH 1977 IR 42

FARRELL V AG 1998 1 IR 2

DPP ANNUAL REPORT 1998 S20

PROSECUTION OF OFFENCES ACT 1974 S3

PROSECUTION OF OFFENCES ACT 1974 S2(5)

OFFENCES AGAINST THE STATE ACT 1939

SAVAGE V DPP & AG 1982 ILRM 385

JUDGE V DPP 1984 ILRM 224

ARTICLE 26 OF THE CONSTITUTION & EMERGENCY POWERS BILL 1976, IN RE 1977 IR 159

CRIMINAL LAW (JURISDICTION) ACT 1976

INTERNATIONAL FISHING VESSELS LTD V MIN FOR MARINE 1989 IR 149

CRIMINAL JUSTICE (ADMINISTRATION) ACT 1924 S12

CONSTITUTION ART 38.1

CRIMINAL JUSTICE ACT 1993 S2

ROAD TRAFFIC ACT 1961 S53(1)

ROAD TRAFFIC ACT 1968 S51

ROAD TRAFFIC ACT 1968 S2(A)

ROAD TRAFFIC ACT 1984 S49(1)(F)

DPP ANNUAL REPORT 1998 S5(1)

DPP ANNUAL REPORT 1998 S10(4)

ADAMS, IN THE MATTER OF 2001 NIECA 2 19.1.2001

DPP ANNUAL REPORT 1998 S10(5)

O'KEEFFE V BORD PLEANALA 1993 1 IR 39

R V DPP EX PARTE C 1995 1 CR APP REP 136

DPP V ARTHURS 2000 2 ILRM 363

R V LOOSELEY 2001 4 AER 897

CONSTITUTION ART 40.3

RYAN V AG 1965 IR 294

G V DPP 1 IR 374

DPP ANNUAL REPORT 1998 S10(1)

DPP ANNUAL REPORT 1998 S10(2)

DPP ANNUAL REPORT 1998 S10(3)

CONSTITUTION ART 34.1

CONSTITUTION ART 38.5

1 31st day of July, 2002byKeane C.J.

Keane C.J.

Introduction

2 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.

3 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.

4 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.

5 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. Theysaid

"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 samewheel 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."

6 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."

7 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 anyprosecution in the matter. That information was communicated to the applicant by her solicitor.

8 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."

9 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 asfollows

"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 1974has 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."

10 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...