D.P.P.-v- Gearoid Cleary, [2009] IECCA 142 (2009)

Docket Number:212/08
Judge:Finnegan J.


Finnegan J.

Budd J.

de Valera J.







Judgment of the Court delivered on the 7th day of December 2009 by Finnegan J.

The applicant was charged with and convicted on a single count of dangerous driving causing death contrary to section 53(1) (as amended by section 51 of the Road Traffic Act 1968) and section 53(2)(a) (as amended by section 49(1)(f) of the Road Traffic Act 1994 and by section 23 of the Road Traffic Act 2002) of the Road Traffic Act 1961.

The particulars of the offence are that on 9th September 2006 at Ballysimon Road, Limerick, a public place, the applicant drove a motor vehicle registration number 97 LK 5920 in a manner (including speed) which having regard to all the circumstances of the case, (including the condition of the vehicle, the nature, condition and use of the place and the amount of traffic which then actually was or might reasonably be expected then to be therein) was dangerous to the public and thereby caused the death of another person, namely, Emma Woodland.

He seeks leave to appeal his conviction. The single ground of application relied upon is as follows:-"The learned trial judge erred in law and in principle in failing to discharge the jury upon an application being made to him by counsel for the applicant so to do arising from the cross-examination by counsel for the prosecution of an expert witness called on behalf of the applicant and in particular a question put by counsel for the prosecution to the effect that video footage shown earlier and replayed during the said cross-examination depicted two cars racing against a background of an earlier ruling by the learned trial judge limiting the right of counsel for the prosecution to make comment upon racing based upon the said video footage."

The Facts

The case was opened by the prosecution on the following basis. The applicant was driving his white Honda Integra out of Limerick city. He travelled along Ballysimon Road, past Limerick Prison. He was closely followed by another vehicle, a dark blue BMW. As the cars approached the junction of Ballysimon Road and Fairgreen Road a Toyota Starlet emerged from their right hand side and proceeded to cross the junction. The applicant's Honda braked suddenly and the BMW collided with the rear of the same. The Honda continued on for at least 35.5 metres and then collided with the Toyota Starlet. The impact was very severe causing the Toyota Starlet to be driven for a distance into Fairgreen Road where it then struck the boundary wall of a house. The applicant's Honda continued on, struck a taxi on Fairgreen Road and then the rear end of the same struck and demolished the wall and gate pillar of a house on Ballysimon Road. The prosecution's case is that both the applicant's Honda and the BMW were being driven too fast. As a result of the collision between the applicant's Honda and the Toyota Starlet, Emma Woodland who was a rear seat passenger in the Toyota Starlet was injured and died as a result of her injuries.

The Racing Issue

The BMW was being driven by Roman Andreas. He was arrested at the scene and later interviewed by Gardai. In summary the account which he gave at interview was...

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