McGrath v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice Murphy |
| Judgment Date | 20 December 2001 |
| Neutral Citation | [2001] IEHC 179 |
| Court | High Court |
| Docket Number | RECORD NO. 138 JR/2000 |
| Date | 20 December 2001 |
[2001] IEHC 179
THE HIGH COURT
Murphy
BETWEEN
AND
Citations:
ROGERS V DPP 1992 ILRM 695
DUTTON V DPP UNREP FLOOD 9.7.1979 1998/5/1475
MURPHY V DPP 1989 ILRM 71
CHRISTIE V LEACHINSKY 1947 AC 573
BRADDISH V DPP UNREP O CAOIMH 21.12.2000 2000/2/751
DALY V DPP UNREP SUPREME 11.4.1994 1998/5/1167
EBRAHIM, R V FELTHAM COURT 2001 1 WLR 1293
ATTORNEY GENERALS REFERENCE (NO 1 OF 1990) 1992 QB 630
Synopsis:
JUDICIAL REVIEW
Prohibition
Criminal law - Evidence - Duty to preserve evidence - Fair procedures - Injunction sought to prohibit the DPP from prosecuting -
Whether applicant could receive fair trial - Whether unfair to applicant to permit trial to proceed - Whether applicant's defence prejudiced (2000/138JR - Murphy J - 20/12/01)
McGrath v DPP
The applicant had been involved in a road traffic accident in which a motorcyclist was killed. As a result a criminal prosecution was undertaken against the applicant. The applicant initiated judicial review proceedings seeking an order of prohibition against her impending prosecution. The applicant's solicitors had attempted to examine the motorcycle that had been driven by the deceased. The motorcycle had however been broken up for parts and was not available for inspection. On behalf of the applicant it was contended that the disposal of the motorcycle had deprived the applicant of evidence relevant to the preparation of her defence. It was said that the prosecution was under a duty to preserve all relevant evidence for a criminal trial and that the applicant had sustained considerable prejudice as a result of the disposal of the evidence. On behalf of the DPP it was submitted that the applicant was aware at all material times that she was likely to be prosecuted and had only made the request to inspect the motorcycle some time after the accident. It was contended that the applicant had failed to inspect the motorcycle in good time. It was also contended that the book of evidence disclosed that the condition of the vehicles involved in the crash was not crucial to the case against the applicant.
Held by Mr. Justice Murphy in refusing the relief sought. The applicant had not shown on the balance of probabilities that she would suffer serious or any prejudice to the extent that no fair trial could be held. Clearly the trial court could deal with any objections regarding the release of the motorcycle and the trial judge could consider giving relevant warnings.
Judgment of Mr. Justice Murphydelivered the 20th day of December, 2001
The Applicant seeks an Order prohibiting the Respondent from taking up and dealing further with the prosecution of the Applicant on a charge referred in the Book of Evidence served on the Applicant on the 17th of January, 2000.
The charge relates to a fatal road traffic accident on the 21st of March, 1999. It is common case that a collision occurred between the Applicant's car and motor cycle driven by the deceased.
On the following day, the 22nd of March, 1999, Garda Anthony McHugh, a P.S.V Inspector, reported on the condition of both car and motor cycle as being in serviceable condition prior to impact.
On the 30th of March, 1999 the Applicant was interviewed, cautioned and made a statement. On the 28th of July, 1999 a second statement was made by her.
On the 5th of August, 1999 the motor cycle which was damaged beyond repair was, at the request of the deceased mother, taken from the Gardai to Harry's motor cycle in Galway.
On the 24th of September, 1999 a summons was served on the Applicant under Section 53 of the Road Traffic Act charging her with dangerous driving causing death.
On the 1st of November, 1999, when the matter was returnable to the District Court, the Solicitor on behalf of the Applicant informed the Court that he might seek on opportunity to inspect the motor cycle. The Book of Evidence was served and the matter was adjourned.
The Applicant's Solicitor had written to the Gardai on the 20th of October 1999 requesting motor forensic reports on the road, the motor bike and the Applicant's vehicle. On the 1st of November the Gardai replied stating that a Book of Evidence was being prepared which would contain all the information required. The District Court hearing was adjourned until the 17th of January which was the date set for the service of the Book of Evidence. On the 1st of February the Solicitors for the Applicant asked the Gardai where the motor bike was. On the 7th of February the Solicitor again wrote saying that the Applicant's forensic engineer, Dr. Mark Jordan, was expected in Galway with a view to locating the locus of the accident and asked the Gardai to inform them of the whereabouts of the motor cycle. By fax of the 9th of February, 2000, Garda Paul Kane stated that the bike was returned to the deceased's family and then passed on to Harry's Motor Cycles. The bike, he said, has been broken up for parts and any enquiry into this matter could be answered "by Ray care of Harry's MotorCycles".
According to the Affidavit of Blake Marler, who describes himself as a work shop manager employed by Harry's Motor Cycles, the deceased had left the motor cycle for checking on the 18th of March, 1999, three days before the accident. He later recuperated for the motor cycle from Salthill Garda Station on the instructions of the deceased's mother on the 5th of August and stored it at the premises of Harry's Motor Cycles. The motor cycle was preserved intact until mid November 1999 when the engine was removed from it. Subsequently the tyres were removed some time in January, 2000.
Mr. Marler says that on the 10th of February, 2000 he spoke with an engineer who advised him he wished to examine the motor cycle. He told him that the engine and tyres had been removed but the engineer confirmed he would attend the following day to carry out the examination. He did not do that and Mr. Marler says that he never heard from him again. Subsequently, the Deponent says, in about May 2000 the motor cycle was stripped down completely.
Dr. Mark Jordan says that on the 9th of February he was informed by Mr. Gerard O'Donnell, Solicitor for the Applicant that the motor cycle had been given to Harry's Motor Cycles and had been broken up for parts. He said that on the same day he contacted the manager of Harry's Motor Cycles to arrange for an inspection and was informed that the motor cycle had been dismantled and was broken up for parts. He was informed that only some parts were still available. The rest of the motor cycle had been dispersed or disposed of and the whereabouts of the parts was unclear. He says that the disposal of the motor cycle had deprived the Applicant of evidence relevant to the preparation of her defence. He said he was unable to ascertain the collision configuration, the closing impact speeds, to check instrumentation and equipment settings and to eliminate any mechanical condition. He further said he was unable to eliminate that the deceased motor cyclist may have been dazzled or blinded by the sun's reflection in his mirrors. He was unable to discriminate between damage to the motor cycle caused directly in the primary impact and damage caused by the post impact of the rear of the motor cycle. He says that the condition of the motor cycle, tyre conditions and all other relevant factors would assist him in preparing a report which would be helpful to the Applicant.
It was submitted on behalf of the Applicant that the Court should grant an injunction restraining further prosecution of the proceedings as Prosecution is under a duty to preserveall relevant evidence for a criminal trial.
The Applicant should have been informed of the Garda's intention so that she could be given an opportunity to inspect the vehicle prior to itsdisposal.
The consideration which influenced O'Hanlon J. in Rogers .v. DPP andOthers (1992) ILRM 695 do not apply in the instant case. In Rogers the Court took the view that the owner of a vehicle from whom it had been stolen should have it returned after a reasonable period of time so as not to be, as it were, further penalised. In the instant case, the unfortunate owner of the damaged motor cycle concerned was now deceased. The motor cycle could be sold for parts just as effectively after the criminal process was completed. It is submitted that that case has no application in the within proceedings.
It was submitted that the application did not fall into the category of abuse of process as described in the case of Dutton v.DPP (unreported, High Court, 9th July, 1997).
In the present case Summons was served on the 24th September 1999 and the Applicant instructed Mr. O'Donnell on the 28th September 1999 by telephone and attended his office on or about the 7th day of October, 1999. The Summons was returnable for the 1st November before Galway District Court and Mr. O'Donnell immediately contacted Counsel who suggested that a Forensic Engineer should be engaged. Thereafter, the Applicant and her advisers acted with expedition and on the first occasion possible, the District Judge was informed by the Applicant's Solicitor that he wished to retain an engineer to examine the motor cycle. Unfortunately, as is now known, the motor cycle had already been disposed of before the Summons was served.
The Applicant submits that she has sustained considerable prejudice as a result of the premature disposal of the motor cycle. The nature of the prejudice, from an evidential point of view, is outlined in the Affidavit of Dr. Mark Jordan. The accident was an extremely traumatic event for the Applicant, especially because of the injuries sustained by the deceasedmotorcyclist....
To continue reading
Request your trial