Kennealy v DPP

JurisdictionIreland
JudgeMr. Justice Hedigan
Judgment Date18 May 2010
Neutral Citation[2010] IEHC 183
CourtHigh Court
Date18 May 2010
Kennealy v DPP
JUDICIAL REVIEW

BETWEEN

MARY KENNEALY
APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT

[2010] IEHC 183

[No. 943 J.R./2009]

THE HIGH COURT

CRIMINAL LAW

Evidence

Missing evidence - Delay in prosecuting offence - Blood sample not retained - Application to prohibit trial - Refusal to permit taking of blood sample -Whether application misconceived - Whether trial should be prohibited - Whether exceptional circumstances - DC v DPP [2005] IESC 77 [2005] 4 IR 281 applied - Rules of the Superior Courts 1986 (SI 15/1986) O 84 r 21 - Road Traffic Act 1994 (No 7) s 13 -Relief refused (2009/943JR - Hedigan J - 18/5/2010) [2010] IEHC 183

Kennealy v DPP

Facts the applicant had been charged with a refusal to permit a designated medical practitioner take a blood sample contrary to s. 13(3) of the Road Traffic Act 1994, and also with criminal damage contrary to s. 2 of the Criminal Damage Act 1990, on the 24th May, 2008. She became un-cooperative whilst the doctor attempted to take the sample and as a result he was unable to obtain a full specimen. She had been informed of the charges shortly afterwards. Following several adjournments due to witnesses being unavailable, the trial was listed for the 15th September, 2009. Two days prior to that, she applied for and obtained leave to seek an order or prohibition restraining her criminal trial. She had raised, for the first time, on the 29th April, 2009, an issue as to whether the incomplete blood sample had been retained by the prosecution, which it had not. She contended that she could not obtain a fair trial as a result of the missing evidence, which she contended could have been analysed and as a result, she could not have been said to have refused to provide a sample as charged.

Held by Mr. Justice Hedigan in refusing the relief sought that the remedy of prohibition of a criminal trial was a remedy which was granted sparingly and only in exceptional circumstances. Such a jurisdiction to intervene did not apply where the applicant had minutely parsed and analysed the proposed evidence and sought to identify an area merely of difficulty or complexity. The test was whether there was a real risk that by reason of the particular circumstances that the applicant could not obtain a fair trial.

Reporter: P.C.

1

1. The applicant is charged with a refusal to permit a designated medical practitioner take a blood sample contrary to s. 13(3) of the Road Traffic Act 1994, and also with criminal damage contrary to s. 2 of the Criminal Damage Act 1990, on 24/05/08

2

2. The relevant events occurred in the garda station. Suffice it to note, the applicant had been arrested in circumstances where she clearly was in state of high distress. At the scene, and in the garda station, she was unruly and non-cooperative from the outset. A registered medical practitioner was called to the garda station. She was required to provide a sample of blood. When the doctor attempted to take a sample, she refused to allow him tie a tourniquet around her arm. She claims she was not uncooperative and that she had difficulty understanding the doctor's English. She says she held her arm still. She said it became excruciatingly painful. She says Dr. Lone, the registered medical practitioner, withdrew the needle when the syringe was half-full of blood. She says, as far as she can recall, nobody suggested she had failed to provide a sample.

3

3. Garda Fionnuala Whelan swears, in her affidavit, that the applicant never, at any stage, complained of being unable to understand Dr. Lone's English. She avers his English is of a very high standard. She says the applicant demanded to have an Irish doctor. Garda Whelan states the applicant remained uncooperative at all times and that the account she gives in her affidavit it untrue. She swears that the applicant was utterly uncooperative and determined to ensure that a proper sample could not be taken. She swears she refused to hold her arm still and Dr. Lone was unable to take a proper sample as her arm kept moving. The doctor told her that she had failed to provide a sample. She did not complain of any bruise on her arm. The custody record exhibited records that the applicant was violently knocking on the cell door and banging it violently, both before and after the attempt to take a sample. There has been no notice of cross-examination herein.

4

4. I have read the affidavits and the witness statement exhibited therein. I accept the evidence of Garda Whelan. I note that the applicant claims she was never told she had failed to provide a sample. Prior to leaving the station, however, she was charged with failure to provide a sample. She was, at this point, at the latest, aware it was alleged she had failed to provide a sample.

5

5. In his s. 21 statement, Dr. Lone states:

"The patient refused to allow to apply the tourniquet. When started to take sample, after extraction of about half of sample, Ms. Kennally shouted and refused to give rest of sample and started arguing and shouting."

Dr. Lone and the applicant are therefore in agreement that the syringe was half-full of blood, i.e. 5mls.

6

6. The case was listed first in the District Court on 16/06/08. A Gary Doyle order was made. On 18 th June, 2008, the gardaí received a letter dated 05/06/08, seeking basic disclosure. There is no reference to the blood sample in it. On 09/09/08, the prosecution provided the disclosure order, save that the statement of Dr. Lone was not included. It was to follow. The hearing date of 03/12/08 was vacated owing to an injury to a witness. A new date of 02/02/09 was fixed. No mention was made prior to the December date of the blood sample issue. The February date was vacated owing to an injury to a witness. On 19/01/09, the applicant was sent the statement of Dr. Lone. In the accompanying letter, her...

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