Kearney -v- D. P. P., [2009] IEHC 347 (2009)

Docket Number:2008 416 JR
Party Name:Kearney, D. P. P.
Judge:Hedigan J.




THE DIRECTOR OF PUBLIC PROSECUTIONSRESPONDENTJudgment of Mr. Justice Hedigan, delivered on the 15th day of July, 2009

  1. The applicant in the present case is facing two counts of dangerous driving contrary to s. 53(1) and s. 53(2)(a) of the Road Traffic Act 1961 ('the 1961 Act') before the Circuit Criminal Court, arising out of an incident on the 31st of December, 2006.

  2. The respondent is the authority responsible for the prosecution of criminal offences in Ireland. His statutory authority to carry out this function is derived from the Prosecution of Offences Act 1974.

  3. The applicant is seeking the following relief by way of judicial review:-

    (a) An order of prohibition, or in the alternative an injunction, restraining the trial of the applicant in the Circuit Criminal Court in respect of the aforementioned charges; and

    (b) A declaration that the aforementioned charges have been brought in breach of the applicant's right to a trial in due course of law and in breach of the respondent's duty at common law to seek out and preserve evidence relevant to the lawful disposal of criminal proceedings brought against the applicant.

    1. Factual and Procedural Background

  4. On the 31st of December, 2006, the applicant was driving his vehicle at Philipstown, Hackballcross, County Louth when he collided with another vehicle containing three passengers, two male and one female. The female and one of the males were seriously injured in the collision while the other male also sustained significant physical trauma. The applicant was relatively unharmed. He was arrested at the scene by Garda Allan Dempsey on suspicion of drink driving and conveyed to Dundalk Garda Station. He refused to provide a specimen of breath and was charged with offences contrary to s. 13(1)(a) and s. 13(2) of the Road Traffic Act 1994 ('the 1994 Act').

  5. The scene of the collision was preserved for two hours in order to facilitate a full Garda inspection of the area. However, no specific forensic examination was carried out at that time. The applicant's vehicle was seized as Garda Dempsey suspected that it might not have been roadworthy owing to a perceived baldness of the tyres. No such seizure was performed on the other vehicle, although both were initially towed to Oriel Garage in Dundalk. On the 3rd of January, 2007, the applicant's vehicle was examined thoroughly at that garage by the Garda Public Service Vehicles Inspectorate and no faults were found in the resulting report.

  6. On the 8th of January, 2007, the applicant's solicitor sent a standard form letter to the Superintendent at Dundalk Garda Station seeking disclosure of evidence relating to the incident and requesting the preservation of any evidence as may be relied upon by the prosecution in future criminal proceedings.

  7. On the 10th of January, 2007, the applicant first appeared in Dundalk District Court in connection with the charges under s. 13(1)(a) and s. 13(2) of the 1994 Act. The matter was adjourned to the 4th of April, 2007. Garda Dempsey asked him whether he wished to make a statement in relation to the collision. Having taken advice from his solicitor, the applicant declined to do so.

  8. On the 11th of January, 2007, the female passenger who had been in the vehicle that had collided with the applicant's died as a result of peritonitis caused by a blunt abdominal injury. On the 18th of January, 2007, her son informed Garda Dempsey that he had arranged for the vehicle to be removed from Oriel Garage and scrapped two weeks previously, in keeping with his mother's wishes.

  9. A full forensic examination of the scene of the collision was ultimately carried out on the 7th of April, 2007. On the 27th of May, 2007, the applicant visited Oriel Garage with a view to retrieving the alloy wheels from his vehicle. He informed the staff at the garage that he had no interest in any other part of the vehicle. As the wheels had been removed from...

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