People (Attorney General) v Dunleavy

• Jurisdiction: Ireland
• Judgment Date: 31 July 1948
• Date: 31 July 1948
• Court: Court of Criminal Appeal

The People (Attorney-General) v. Dunleavy.

THE PEOPLE (at the suit of the Attorney-General)

and

JOHN DUNLEAVY (1)

Court of Criminal Appeal.

Criminal law - Manslaughter - Death caused by negligent management of mechanically propelled vehicle on public highway - Nature and degree of negligence necessary to constitute offence - Duty of trial Judge in his charge to the jury.

On the trial of an accused person, charged with manslaughter arising out of his alleged negligence in the control and management, on a public roadway, of a mechanically propelled vehicle, the trial Judge should see that the jury is given clearly to understand as follows:—

(a) That negligence in this connection means failure to observe such a course of conduct as experience shews to be necessary if, in the circumstances, the risk of injury to others is to be avoided, i.e., failure to behave as a reasonable driver would.

(b) That the jury must be satisfied that negligence upon the part of the accused was responsible for the death in question.

(c) That there are different degrees of negligence, fraught with different legal consequences; that ordinary carelessness, while sufficient to justify a verdict for a plaintiff in an action for damages for personal injuries, or a conviction on prosecution for careless or inconsiderate driving, falls far short of what is required in a case of manslaughter, and that the higher degree of negligence which would justify a conviction on prosecution for dangerous driving is not necessarily sufficient.

(d) That manslaughter is a felony and a very serious crime, and that before convicting of manslaughter the jury must be satisfied that the fatal negligence was of a very high degree, and was such as to involve, in a high degree, the risk or likelihood of substantial personal injury to others.

So held by the Court of Criminal Appeal.

Observations of Lord Atkin in Andrews v. Director of Public Prosecutions,[1937] A. C. 576, approved.

Criminal Appeal.

Application for leave to appeal by the accused, John Dunleavy, against the conviction and sentence recorded against him on an indictment for the manslaughter of one, John Ryan, on the 1st of May, 1946. The prosecution alleged that the accused, while driving a motor taxi-cab along the main thoroughfare leading from Santry to Whitehall, in the suburbs of the city of Dublin, at about midnight, drove the vehicle, without lights, and within six or seven feet of the kerb, around a corner, on his own right-hand side at a point where the roadway, a main traffic artery, was over forty feet wide, and struck the deceased, who was cycling on his own left-hand side of the roadway and within seven feet of the kerb, causing him injuries from which he died.

The accused was tried in the Circuit Court at Dublin before Circuit Court Judge McCarthy and a jury on the 5th, 6th and 7th February, 1947.

At the trial, the case for the accused was, in substance, that the car driven by him was not the vehicle which struck the deceased, and that, even if it were, the accused's conduct amounted, at the most, to an act of dangerous driving in taking the corner on his wrong side but did not constitute the offence of manslaughter.

The accused was found guilty of the offence charged and was sentenced to eighteen months' imprisonment. The trial Judge refused to give a certificate that the case was a fit one for an appeal to the Court of Criminal Appeal, and the accused now applied to the Court of Criminal Appeal for leave to appeal.

The ground of appeal upon which the applicant relied was, in substance, that the trial Judge in his charge to the jury had not properly instructed them as to the constituents of the crime of manslaughter by negligently driving a motor vehicle on the public highway.

Cur. adv. vult.

On the 15th of May, 1947, the Court intimated that the application for leave to appeal would be allowed and, treating the application as the hearing of the appeal, that the appeal would be allowed and the conviction quashed, but that a re-trial would be directed, the costs of the applicant on the application for leave to appeal and on the re-trial to be borne by the prosecution. The Court, on the 31st of July, 1947, gave the reasons for its decision in the following judgment, which was delivered by Mr. Justice Davitt.

Davitt J. :—

This is an application by John Dunleavy for leave to appeal against his conviction on an indictment for manslaughter at the Dublin Circuit Criminal Court on 5th February, 1947, and against a sentence of eighteen calendar months' imprisonment imposed upon him therefor by the learned Circuit Court Judge, Judge McCarthy. The accused was indicted that, on the 1st May, 1946, he unlawfully killed John Ryan. The case for the prosecution was that, about midnight on that date, the deceased man, while cycling along the main thoroughfare leading from Whitehall to Santry, on his own left-hand side of the road, within seven feet of the kerb, was run down by a motor taxi-cab driven by the accused. It was not alleged that the accused was driving at a fast rate of speed; in...