Kearney v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan,
• Judgment Date: 15 July 2009
• Neutral Citation: [2009] IEHC 347
• Court: High Court
• Date: 15 July 2009

[2009] IEHC 347

THE HIGH COURT

Record No. 416 JR/2008

Kearney v DPP

BETWEEN:

JASON KEARNEY

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

ROAD TRAFFIC ACT 1961 S53(1)

ROAD TRAFFIC ACT 1961 S53(2)(A)

PROSECUTION OF OFFENCES ACT 1974

ROAD TRAFFIC ACT 1994 S13(1)(A)

ROAD TRAFFIC ACT 1994 S13(2)

BRADDISH v DPP & HAUGH 2001 3 IR 127 2002 1 ILRM 151 2001/2/351

DUNNE v DPP 2002 2 IR 305 2002 2 ILRM 241 2002/7/1645

BOWES & MCGRATH v DPP 2003 2 IR 25 2003/6/1129

SCULLY v DPP 2005 1 IR 242 2005 2 ILRM 203 2005/54/11281 2005 IESC 11

MCFARLANE v DPP UNREP SUPREME 5.3.2008 2008/37/7968 2008 IESC 7

LUDLOW v DPP UNREP SUPREME 31.7.2008 2008/36/7748 2008 IESC 54

SAVAGE v DPP UNREP SUPREME 3.7.2008 2008/58/12074 2008 IESC 39

DILLON v O'BRIEN & DAVIS 1887 20 LR IR 300

Z v DPP 1994 2 IR 476 1994 2 ILRM 481

CRIMINAL LAW

Evidence

Preservation - Motor car destroyed pre-trial - Prohibition - Whether failure to preserve evidence exposed applicant to real risk of unfair trial - Duty to preserve relevant evidence - Trial in due course of law - Whether any failure by gardaí to preserve evidence capable of having bearing on guilt or innocence - Relevance - Alleged absence of potentially exculpatory evidence - Whether any specific prejudice - Delay in seeking inspection of vehicle until year after collision - Circumstances of case - Braddish v DPP [2001] 3 IR 127; Dunne v DPP [2002] 3 IR 305; Bowes v DPP [2003] 2 IR 25; Scully v DPP [2005] IESC 11, [2005] 1 IR 242; McFarlane v DPP [2008] IESC 7, [2008] 4 IR 117; Ludlow v DPP [2008] IESC 54, [2009] 1 IR 640; Savage v DPP [2008] IESC 39, [2009] 1 IR 185; Dillon v O'Brien and Davis (1887) 20 LR Ir 300; Murphy v DPP [1989] ILRM 71 and Z v DPP [1994] 2 IR 476 considered- Road Traffic Act 1961 (No 24), s 53(1) and 53(2)(a) - Road Traffic Act 1994 (No 7), ss 13(1)(a) and 13(2) - Prosecution of Offences Act 1974 (No 22) - Relief refused (2008/416JR - Hedigan J 15/7/2009) [2009] IEHC 347

Kearney v DPP

Facts: The applicant sought to prohibit his trial in the Circuit Court on two counts of dangerous driving on the ground that the respondent failed to seek out and preserve evidence relevant to the lawful disposal of those criminal proceedings. The charges against the applicant arose out of a collision with another vehicle on 31 December 2006. The applicant’s vehicle was seized after the collision and following examination was found not to contain any faults. The other vehicle involved in the collision was scrapped. On 13 February 2008, the applicant’ solicitor specifically sought to arrange an inspection of the two vehicles involved in the collision. Neither vehicle was available for inspection, the applicant’s vehicle having also been scrapped. Consequently, the applicant submitted that he was prejudiced by reason of two aspects of the prosecution case being immune from challenge, namely, the suggestion that the point of impact of the vehicles showed that the applicant had been driving on the incorrect side of the road and further the contention that the applicant’s vehicle was free from any defect which might have had a bearing on the collision.

Held by Hedigan J. in refusing the application: That the applicant’s arguments were remote, theoretical or fanciful. There was no reason on the evidence to suspect that the applicant’s car might have been so defective as to have materially contributed to the collision. As regards the point of impact, there was nothing which might reasonably have been gleaned from a further inspection of the vehicle by a representative of the applicant. Furthermore, the insubstantial nature of the applicant’s arguments was supported by his failure to request an inspection of his vehicle until more than a year had elapsed since the collision.

Reporter: L.O’S

1 Judgment of Mr. Justice Hedigan, delivered on the 15th day of July, 2009

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

3 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.

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

5 (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

6 (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.

I. Factual and Procedural Background

7 4. On the 31 ^st 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 section 13(1)(a) and section 13(2) of the Road Traffic Act 1994 ('the 1994 Act').

8 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 3 ^rd 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.

9 6. On the 8 ^th 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.

10 7. On the 10 ^th of January 2007, the applicant first appeared in Dundalk District Court in connection with the charges under section 13(1)(a) and section 13(2) of the 1994 Act. The matter was adjourned to the 4 ^th 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.

11 8. On the 11 ^th 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 18 ^th 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.

12 9. A full forensic examination of the scene of the collision was ultimately carried out on the 7 ^th of April 2007. On the 27 ^th 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 the car and could not be located, the applicant was given a cheque for their value instead.

13 10. On the 17 ^th of July 2007, the applicant's solicitor again wrote to the Superintendent of Dundalk Garda Station, in a standard form letter, seeking disclosure and preservation of all relevant evidence. A further identical request was sent on the 28 ^th of November 2007.

14 11. On the 23 ^rd of October 2007, the applicant was charged with dangerous driving, causing the death of the female passenger from the collision. On the 12 ^th of December 2007, the applicant was charged with dangerous driving, causing serious injury to one of the male passengers. The applicant was then sent forward, on the 16 ^th of January 2008, for trial at Dundalk Circuit Criminal Court in respect of both of these charges.

15 12. On the 13 ^th of February 2008, the applicant's solicitor specifically sought, for the first time, to arrange an inspection of the two vehicles involved in the collision. By reply dated the 20 ^th of February 2008, the applicant's solicitor was informed that the vehicle driven by the injured parties was no longer available for inspection as it had been returned to its owners.

16 13. On the 28 ^th of February 2008, a consultant engineer retained on...