Ludlow v DPP and Another

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 16 July 2005
• Neutral Citation: [2005] IEHC 299
• Docket Number: [No. 1111 JR/2004]
• Court: High Court
• Date: 16 July 2005

[2005] IEHC 299

THE HIGH COURT

[No. 1111 JR/2004]

LUDLOW v DPP & JUDGE O'SHEA

BETWEEN

DENNIS LUDLOW

APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS ANDHIS HONOUR JUDGE MICHAEL O'SHEA

RESPONDENTS

ROAD TRAFFIC ACT 1961 S53(1)

ROAD TRAFFIC ACT 1968 S51

ROAD TRAFFIC ACT 1961 S2(a)

ROAD TRAFFIC ACT 1994 S49(1)(f)

ROAD TRAFFIC ACT 2002 S23

ROAD TRAFFIC (CONSTRUCTION EQUIPMENT & USE OF VEHICLE REGS) 1963 S16(7)CRIMINAL JUSTICE ACT 1951 S6

BOWES & MCGRATH v DPP 2003 2 IR 25

MURPHY v DPP 1989 ILRM 71

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

DUNNE v DPP 2002 2 IR 305 2002 2 ILRM 241

MCGRATH v DPP UNREP HIGH COURT MURPHY 20.12.2001 2003/40/9731

Z v DPP 1994 2 IR 476 1994 2 ILRM 481

MCKEOWN v JUDGES OF DUBLIN CIRCUIT COURT & DPP UNREP SUPREME 9.4.2003 2003/41/9855

SCULLY v DPP UNREP HIGH COURT KEARNS 21.11.2003 2003/47/11429

SCULLY v DPP 2005 2 ILRM 203

MITCHELL v DPP 2000 2 ILRM 396

CRIMINAL LAW

Evidence

Procurement and preservation of evidence - Prosecution arising out of road traffic accident - Applicant charged with driving mechanically propelled vehicle with excessively worn tyres - Whether duty to preserve tyres - Delay in seeking inspection - Time at which applicant could become aware of importance of preserving evidence - Whether real risk that applicant will not receive fair trial - McGrath v DPP [2003] 2 IR 25, McKeown v Judges of Dublin Circuit (Unrep, SC, 9/4/2003), Scully v DPP [2002] 2 ILRM 396 and (Unrep, SC, 16/3/2005), Murphy v DPP [1989] ILRM 71 and Braddish v DPP [2001] 3 IR 127 considered - Prohibition granted (2004/1111JR - Dunne - 16/7/2005) [2005] IEHC 299

LUDLOW v DPP & JUDGE O'SHEA

Ms. Justice Dunne

1 This is an application for judicial review seeking to restrain by injunction the first named respondent from continuing to prosecute the applicant and for an order prohibiting the second named respondent from trying the applicant in criminal proceedings before Carlow Circuit Court on the grounds that the State failed to preserve evidence essential to the prosecution and the applicants defence, namely two truck tyres. The applicant further seeks a declaration that the first named respondent and the Gardaí were obliged to preserve such evidence as was relevant to the said prosecution and the defence thereof, including the said two tyres. The applicant herein was given leave to apply for judicial review by order of the High Court made herein by Mr. Justice Smyth on the 10th December, 2004.

2 On the 8th October, 2002, it is alleged that the applicant was involved in a road traffic accident involving his vehicle and a vehicle driven by one Darren O'Neill, deceased, on a public road at Roscat, Tullow, Co. Carlow. The said Darren O'Neill deceased, was driving his motor vehicle accompanied by his wife and child at approximately 2.00 pm in the afternoon. It is alleged that the vehicle in which the applicant was driving was travelling in the opposite direction. Thereafter it is alleged that the applicant's vehicle slid onto its incorrect side of the road and collided with the deceased's vehicle. At the time of the collision the applicant was driving motor lorry registration no. 98 KE 8097 in the course of his employment as a truck driver. The point of collision was on a sweeping bend on the said roadway. Unfortunately, as a result of the collision the said Darren O'Neill died on the 11th November, 2002. Witness statements taken by the Gardaí indicate that at the time of the collision, it was raining, the road was greasy, neither of the vehicles involved "were going excessively fast" and the lorry started to slide in the direction of the far side of the road. It seemed to slide across the road.

3 An inspection of the vehicle which the applicant had been driving was carried out by Sergeant Donal Prendergast on the day of the accident. Sergeant Prendergast stated that the right front and right inner tyre of the rear axle were excessively worn and he concluded that:

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

4 On the 11th February, 2003, the applicant attended at Tullow Garda Station by appointment and met with Garda Morrissey. Prior to this date, a statement dated 27th January, 2003, was furnished to Garda Morrissey by the applicant which statement is exhibited in the Book of Evidence. Thereafter the applicant was summonsed to appear at Tullow District Court and on the 24th July, 2003, the applicant was returned for trial to Carlow Circuit Court. A Book of Evidence was served on the applicant on the 24th July, 2003. The applicant was originally 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 s. 53 (1) (as amended by s. 51 of the Road Traffic Act1968) and (2) (a) (as amended by s. 49 (1) (f) of the Road Traffic Act 1994 (of the Road Traffic Act, 1961, as amended by s. 23 of the Road Traffic Act, 2002)."

5 On the 29th October, 2004, two further summary offences were added to the indictment. They are as follows:

"On the 8th October, 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 rear tyre, was excessively worn.

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

On the 8th October, 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 Vehicles) Regulations 1963 as amended…".

6 By letter dated the 25th September, 2003, the applicant's solicitor, Andrew Coonan, of Coonan Cawley wrote to the State Solicitor, Alan Millard notifying him that the applicant intended to put the State on full proof of all witness statements and exhibits contained in the Book of Evidence served on the applicant. By letter dated 9th October, 2003, the State Solicitor wrote to the applicant's solicitor indicating that the applicant's case was unlikely to proceed to trial on 14th October, 2003, the next criminal session in that area.

7 By letter dated 29th October, 2003, Mr. Millard wrote to Mr. Coonan indicating that the first named respondent herein had directed that the two District Court summonses referred to above would be added to the indictment under s. 6 of the Criminal Justice Act1951 and a copy of the indictment intended to be proffered at the applicants trial was also forwarded to Mr. Coonan.

8 On the 15th January, 2004, Mr. Coonan wrote to Dennis P. Wood, engineer requesting that he investigate the circumstances and the vehicle surrounding the accident on behalf of the applicant. By reply dated the 16th January, 2004, Mr. Woods requested that the thread depth details of the types on the applicant's vehicle be made available to him and further he inquired as to whether or not the truck tyres were available for inspection. Subsequently on the 23rd January, 2004, Mr. Coonan wrote to Mr. Millard requesting information regarding said depth measurements taken by Sergeant Prendergast and inquiring in the alternative if the tyres were available for inspection. Mr. Millard then wrote to Mr. Coonan by letter dated 5th February, 2004, stating that he would revert to Mr. Coonan when he received instructions from the Gardaí. Reminders were sent to Mr. Millard by letters dated 29th April, 2004 and the 4th June, 2004. By letter dated 10th June, 2004 Mr. Millard replied indicating that he was still endeavouring to obtain information regarding thread depth from Sergeant Prendergast. Further additional evidence was served on Mr. Coonan on behalf of the applicant at that time.

9 On the 18th August, 2004, Mr. Coonan 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 two allegedly worn tyres on the vehicle. Information was also provided in the statement of Sergeant Prendergast as to the alleged thread depths of the two allegedly worn tyres on the truck and further stated that the two tyres were not available for inspection as they "remained on the truck and after inspection the vehicle was returned to its owner". In the said letter of the 13th August, 2004, Mr. Millard made the following comment: "Sergeant Prendergast's statement indicates that the tyres were returned to the owner, presumably Mr. Snowden, of whom inquiry therefore be made please."

10 On the 19th August, 2004, Mr. Coonan wrote to Mr. Raymond Snowden, the employer and owner of the vehicle which the applicant was driving on the date of the accident requesting details as to where the tyres were and indicating that the applicant wished to have the said tyres examined. No reply was received to the letter. A phone call was made by Mr. Coonan to Mr. Snowden on the 21st October, 2004 and in that conversation Mr. Snowden indicated that following the return of the tyres along with the truck he, Mr. Snowden, had disposed of the...