Leahy v DPP & Judge O'Shea

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Charleton
• Judgment Date: 05 February 2010
• Neutral Citation: [2010] IEHC 22
• Date: 05 February 2010

[2010] IEHC 22

THE HIGH COURT

[No. 680 JR/2009]

Leahy v DPP & Judge O'Shea

BETWEEN

JUDICIAL REVIEW

ANTHONY LEAHY

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

AND

HIS HONOUR JUDGE MICHAEL O'SHEA

RESPONDENTS

TOOHEY v DPP & JUDGES OF THE CIRCUIT COURT UNREP CHARLETON 17.1.2007 2007/58/12486 2007 IEHC 64

TOOHEY v DPP & JUDGES OF THE CIRCUIT COURT UNREP SUPREME 3.12.2008 2008/60/12497 2008 IESC 64

Z v DPP 1994 2 IR 476 1994 2 ILRM 481

SAVAGE v DPP 2009 1 IR 185 2008/58/12074 2008 IESC 39

LUDLOW v DPP & JUDGE O'SHEA 2009 1 IR 640 2008/36/7748 2008 IESC 54

D (C) v DPP UNREP SUPREME 23.10.2009 2009 IESC 70

DUNNE v DPP UNREP SUPREME 24.2.2009 2009 IESC 14

DPP, PEOPLE v QUILLIGAN & O'REILLY 1989 IR 46 1989 ILRM 245 1988/4/1026

PERRY v JUDGES OF THE CIRCUIT CRIMINAL COURT & DPP UNREP SUPREME 28.10.2008 2008 IESC 58

DPP, PEOPLE v TUITE 2 FREWEN 175 1983/8/2336

CRIMINAL LAW

Evidence

Physical evidence - Preservation - Motor car destroyed pre-trial - Prohibition - Whether failure to preserve evidence exposed applicant to real risk of unfair trial - Duty of gardaí in preserving evidence - Test - Onus of proof - Applicable threshold - Forensic report - Whether real risk of unfair trial established - Applicable principles - Toohey v DPP [2008] IESC 64, (Unrep, SC, 3/12/2008); Z v DPP [1994] 2 IR 476; Savage v DPP [2008] IESC 39, [2009] IR 185; Murphy v DPP [1989] ILRM 71; Braddish v DPP [2001] 3 IR 127; McFarlane v DPP [2006] IESC 11, [2007] 1 IR 134; Scully v DPP [2005] IESC 11, [2005] 1 IR 242; Dunne v DPP [2009] IESC 14, (Unrep, SC, 24/2/2009); Ludlow v DPP, [2008] IESC 54, [2009] 1 IR 640; CD v DPP [2009] IESC 70, (Unrep, SC, 23/10/2009); People (DPP) v Crilligan (No 2) [1989] IR 46; Perry v DPP, [2008] IESC 58, (Unrep, SC, 28/10/2008) and People (DPP) v Tuite (1993) 2 Frewen 175 applied - Relief refused (2009/680JR - Charleton J - 5/2/2010) [2010] IEHC 22

Leahy v DPP & Judge O'Shea

Facts: The applicant sought to prohibit the respondent from a charge of dangerous driving causing death and claimed that the inadvertent destruction of a piece of evidence gave rise to a real risk of an unfair trial. A car accident involving the vehicle in which the applicant was driving had resulted in the death of the deceased. The applicant disputed various formulations of evidence, skid marks, CCTV and Garda evidence that would have shown that he was speeding. Sixteen months after the applicant, his solicitors had sought to inspect the vehicle. The vehicle had been placed in a private yard for storage and parts of the car had been sold without Garda authorisation and only the back tyre remained of the car as well as its shell. The applicant alleged that their unavailability prejudiced his right to a fair trial.

Held by Charleton J. that the trial of the applicant for dangerous driving should not be prohibited as there was available evidence for both the prosecution and defence contending accounts as to the speed of the vehicle driven by the applicant. A comprehensive report on the condition of the vehicle driven by the applicant had been made available. There were strong indications that the vehicle of the applicant locked into a skid, hit the deceased and came to a halt. Video evidence was available from which the speed of the car could be assessed. A calculation as to speed was made by the Gardai on the basis of the position of the body of the deceased. A Garda had given evidence was to marks on the tyre of the vehicle, which while now destroyed, nonetheless entailed that the Garda could still be subjected to cross examination. The unavailability of the tyres was not sufficient for the accused to have discharged the onus of proving that there was a real possibility that he could not obtain a fair trial.

Reporter: E.F.

1 The applicant seeks to prohibit the respondents from trying him on a charge of dangerous driving causing death. He claims that the inadvertent destruction of a piece of evidence has given rise to the real risk that his trial could not now be fair.

Facts

2 I start with the facts which the prosecution claim to be able to prove at the applicant's trial. On 4 ^th November 2007, at around 9.30 in the evening, George Johnson stepped out on to the public road at Roundwood, County Wicklow and was struck by the applicant's car and was killed. The main prosecution allegation is that the applicant was driving far too fast. There were two people in the car namely the applicant and his girlfriend Ceri Boucher. Her statement is in the prosecution's book of evidence. She claims that the two of them had a few drinks at a bar in Roundwood, that they got into the applicant's mother's car and drove carefully out of town. She says in her statement:-

"On passing the Roundwood Hotel I saw two men walking towards the hotel. I noticed one of them was carrying a white plastic bag. He was staggering/swaying and appeared drunk. Anthony was driving giving his full attention to the road, I believe he was driving at 25 m.p.h. At that point I turned to Anthony and said it looks like they had a good night and that's when it happened. As I was saying that a man stumbled off the pavement sideways, hit the side wing of the car and came up on the bonnet. The windscreen scattered and I assumed it was his head or shoulder that caused it. It all happened so fast there was no time to break, scream or warn Anthony."

3 The accused's account to the Gardaí, on being arrested, was of driving at between 25 and 35 k.p.h., of his girlfriend remarking on some people having had "a good night" and before that sentence could be finished feeling an impact on the left hand side of the car. There were other people who witnessed the accident in some way. They heard, variously "a loud bang" or said "the thump before skidding was so loud, I thought he hit another car", or spoke of "a massive bang". These facts might be regarded by a jury as inconsistent with what the accused and his girlfriend have to say. I do not know how they will approach the evidence. Another witness heard what sounded to him like a car "flying down the town". That person wondered "why they would not slow down" before the noise of the collision occurred. Garda O'Donohoe, who came on the scene, claims to have got a strong smell of intoxicating liquor from Mr. Leahy's breath and arrested him for drunk driving. As a matter of fact, his breath tested at over twice the limit of alcohol consumption imposed by statute. The late George Johnson's blood was tested and it showed that he had about four times the statutory alcohol limit for driving; though there is no suggestion of which I am aware that he ever intended to drive that night.

4 A Garda investigation took place. In so far as I can tell, there is nothing to suggest this was anything than other than expert and careful. The public service vehicle inspector found extensive damage to the front bumper, near side head lamp, bonnet, near side front wing, windscreen and roof of the car driven by the accused. The brakes and the seat belts were in good condition. The tyres on the vehicle were of mixed brands and all were in good condition. Garda Tom Bolger, a forensic collision investigator examined the scene as it was preserved for investigation. On the road surface he found two locked wheel marks, in other words a skid. He claims to have worked out the point of the impact as being the distance from the wheel to the front of the car forward of a deviation. On the left hand side of the roadway he found a pool of blood and medical wipes, the place the unfortunate pedestrian was thrown. Discovering items of debris also aided in his assessment. Closed circuit television camera evidence was recovered. From this the speed of the car was calculated at approximately 72 k.p.h. in a 50 k.p.h. zone of maximum speed. The maximum speed limit, however, depends on visibility and road and traffic conditions. It is difficult to see how the maximum speed legally allowed could be justified on a dark night on the main street of a rural town. Testing the skid marks, Garda Bolger came up with a pre-skid velocity of between 66 and 78 k.p.h. He calculates that if the driver had been driving at the legal speed limit of 50 k.p.m., then the speed at which he would have hit the pedestrian, given normal breaking reaction time, would have been 23 k.p.m. In addition, the distance the pedestrian was thrown was also calculated and the result was similar to the skid analysis velocity.

The Car

5 It was not until March 2009, sixteen months after the accident that the solicitors on behalf of the applicant sought to inspect the car. The Gardaí had earlier discovered on 14 ^th January 2008, that the car had been moved from the private vehicle yard in which they had placed it for storage. A private individual had apparently sold parts of it, without Garda authorisation, and the car was stripped to its shell with only one back tyre remaining. The defence, in affidavit evidence and correspondence, have raised issues as to this matter. They say that it is not proven that the tyre marks on the road belong to their vehicle. They also say that the unauthorised stripping of the car, without Garda permission, undermines the ability of the defence to fairly mount a case.

6 Part of the evidence that a skid did occur comes from Garda Bolger's statement. He describes examining the front tyres on the vehicle and noting recent mark indicative of the wheels locking while the car was moving, in other words a skid. Because these tyres are now longer available to the defence they claim a severe prejudice.

Fair Trial

8 Since my judgment prohibiting a trial in Toohey v. D.P.P., delivered on 17 ^th January 2007, [2007] IEHC 64, the law has developed. In particular, the Supreme Court have corrected that judgment by reversing it; ...