Ludlow -v- DPP, [2008] IESC 54 (2008)

Docket Number:311/05
Party Name:Ludlow, DPP
Judge:Denham J. / Hardiman J.
 
FREE EXCERPT

JUDGMENT BY: Denham J.

THE SUPREME COURT

[S.C. No. 311 of 2005]

Murray C.J.

Denham J.

Hardiman J.

Between/

Denis Ludlow

Applicant/Respondent

and

The Director of Public Prosecutions

Respondent/Appellant

Judgment delivered the 31st day of July, 2008 by Denham J.

1. This case arises out of an application by Denis Ludlow, the applicant/respondent, "the applicant", to injunct criminal proceedings against him. It is an appeal by the Director of Public Prosecutions, "the Director", from the judgment of the High Court (Dunne J.) made on the 16th July, 2005, and the order of the 20th July, 2005, which ordered an injunction against the Director, restraining the continuation of a prosecution against the applicant in respect of Bill Number CW0012/2003, and which declared that the Director and An Garda Síochána were obliged to preserve the evidence in issue.

2. The facts

This is a case raising the issue of the preservation of evidence pre-trial. Thus the facts are a critically important aspect of the case.

3. It is alleged that the applicant was in a road traffic accident on the 8th October, 2002, involving the vehicle he was driving and a vehicle driven by Darren O'Neill, on a public road at Roscat,

Co Carlow. Darren O'Neill was driving his motor car, accompanied by his wife and child, at approximately 2 p.m. on that date. It is alleged that the applicant was travelling in the opposite

direction. It is also alleged that the applicant's vehicle slid onto its incorrect side of the road and collided with Darren O'Neill's vehicle. At that time the applicant was driving an Iveco truck

registration number 98 KE 8097 in the course of his employment as a truck driver. The collision took place on a sweeping bend of the road. As a result of the collision Darren O'Neill died on the

11th November, 2002. From statements taken by the gardaí it appears that at the time of the collision it was raining, the road was greasy, neither of the vehicles were going excessively fast, and that

the lorry seemed to slide across the road.

4. An inspection of the applicant's vehicle was carried out on the day of the accident by Sergeant Donal Prendergast, a Public Service Vehicle Inspector. He stated that the right front and right

inner tyre of the rear axle were excessively worn and he concluded:-

"The effect of excessively worn tyres would have been to contribute to a loss of direction control of the vehicle in wet road conditions."

5. The applicant made a statement dated 27th January, 2003 and on the 11th February, 2003 attended Tullow Garda Station voluntarily. The applicant was summonsed to appear at Tullow

District Court. On the 24th July, 2003, the applicant was returned for trial to Carlow Circuit Court. On the 24th July, 2003, a Book of Evidence was served on the applicant.

6. Originally the applicant was returned for trial on the following charge:-

"On the 8th October 2002 at Roscat, Tullow, Co. Carlow a public place in the District Court Area of Tullow, did drive a vehicle, registered no. 98 KE 8097 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 such place and the amount of traffic which then actually was or might reasonably be expected then to be therein), was dangerous to the public, thereby causing the death of another person, namely Darren O'Neill. Contrary to section 53(1) (as amended by section 51 of the Road Traffic Act 1968) and (2)(a) (as amended by section 49(1)(f) of the Road Traffic Act, 1994) of the Road Traffic Act, 1961, as amended by section 23 of the Road Traffic Act, 2002."

7. Subsequently, two summary offences were added to the indictment. These are:-

"On 08/10/2002, at Roscat Tullow Co. Carlow a public place in the District Court area of Tullow, did use a mechanically propelled vehicle, registered no. 98 KE 8097 while the pneumatic tyre fitted to said vehicle, namely the right rear tyre, was excessively worn.

Contrary to Article 16(7) of the Road Traffic (Construction, Equipment and use of Vehicle) Regulations 1963 as amended.

On 08/10/ 2002, at Roscat Tullow Co. Carlow a public place in the District Court area of Tullow, did use a mechanically propelled vehicle, registered no. 98 KE 8097 while the pneumatic tyre fitted to the said vehicle, namely the right front tyre, was excessively worn.

Contrary to s.16(7) of the Road Traffic (Construction, Equipment and use of Vehicle Regulations) 1963 as amended . . .".

8. By letter dated 25th September, 2003, the applicant's solicitor informed the State that the applicant intended putting the State on full proof of all witness statements and exhibits. By letter

dated 9th October, 2003, the State wrote to the applicant's solicitor indicating the probability that the case would not be reached until the Criminal Sittings commencing 17th February, 2004, but

that the applicant would need to be present on the 14th October, 2003 to answer bail.

9. By letter dated 29th October, 2003, the applicant was informed that the Director had directed that the two District Court summonses, referred to above, be added to the indictment,

pursuant to s.6 of the Criminal Justice Act, 1951.

10. On the 15th January, 2004, the solicitor for the applicant wrote to Dennis P. Wood, Consultant Forensic Engineer, requesting that he investigate the circumstances and the vehicle on behalf

of the applicant. By letter dated 16th January, 2004, Mr Woods requested that the tread depth details of the tyres on the applicant's vehicle taken by Sergeant Prendergast, be made available to

him, and he inquired whether the truck tyres were available for inspection.

11. On 23rd January, 2004, the solicitor for the applicant requested information regarding tread depth measurements taken by Sergeant Prendergast and inquired in the alternative if the tyres

were available for inspection. He was informed by letter dated 5th February, 2007, that he would be reverted to when instructions were received from the gardaí. Reminders were sent by letter

dated 29th April, 2004 and 4th June, 2004. On 10th June he was informed that they were still endeavouring to obtain information regarding tread depths from Sergeant Prendergast.

12. On the 18th August, 2004, the solicitor for the applicant received a letter dated 13th August, 2004, enclosing, by way of additional evidence, statements of Garda John Morrissey and

Sergeant Donal Prendergast, together with photographs of the relevant tyres on the vehicle. Sergeant Prendergast's statement gave information as to the alleged tread depths and patterns of the two

relevant tyres on the truck, and stated that the two tyres were not available for inspection as they had remained on the truck and after the inspection the vehicle was returned to the owner.

13. In an affidavit sworn on the 18th February, 2005 Garda Sergeant Donal Prendergast deposed, inter alia, that he is a Public Service Vehicle inspector, and was called to the scene of the

accident on the 8th October, 2002. He examined the vehicle which had been driven by the applicant. It was an Iveco truck registered number 98 KE 8097. He also examined the other vehicle.

His examination took approximately two hours. He found a number of defects in the vehicle driven by the applicant, including excessively worn tyres and malfunctioning recording equipment, the

tachograph. He stated that the applicant also failed to produce tachograph charts. He deposed:-

"… The principal defects in the applicant's vehicle material to the present applicant were that right front tyre was excessively worn and the right inner tyre on the rear axle was excessively worn. The effect of excessively worn tyres would have been to contribute to a loss of direction control in wet road conditions. It had been raining that day and the road was very wet.

4. I say that the applicant was present at all times during my examination of the vehicle which he was driving. Following my examination, the truck had to be removed from the scene of the accident by towing, owing to the extent of the damage. The vehicle was returned to the applicant about approximately 6.30 p.m. on October 8, 2002.

5. I say that in the course of my examination of the said accident scene, I took several photographs of both vehicles and of the scene of the accident. The applicant was present while I was taking the said photographs. I beg to refer to copies of the said photographs upon which, pinned together and marked with the letter "A", I have signed my name prior to the swearing thereof.

6. I say that the Gardaí did not retain possession of the said vehicle or the tyres after the date of the accident. I say that the applicant was clearly aware that neither the vehicle nor the tyres had been retained by the Gardaí and that they had in fact been returned to the owner as he was in fact directly involved in so returning them."

14. Garda John Morrissey deposed an affidavit on the 18th February, 2005. He stated, inter alia:-

"4. I say that the applicant herein was driving a blue Iveco box lorry, registration number 98 KE 8097, owned by one Ray Snowdon by whom the applicant was employed. I say that I investigated this accident together with Sergeant G. Connolly. I drew up a sketch of the scene. I say that later on the evening of the day on which the accident occurred, the applicant's vehicle was examined by Sergeant Donal Prendergast who is a PSV Inspector attached to Naas Garda Station. I beg to reform the affidavit sworn herein by the said Donal Prendergast when produced. I say that this examination revealed a number of faults in the applicant's vehicle. These included the fact that the right front tyre was excessively worn and that the right tyre on the rear axle was also excessively worn.

5. I say that on February 11, 2003, the applicant herein called to Tullow Garda Station. He was informed by me that I wished to inform him that I wished to speak to him in relation to the...

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