Ross v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice Twomey |
| Judgment Date | 03 April 2019 |
| Neutral Citation | [2019] IEHC 215 |
| Court | High Court |
| Docket Number | [2018 No. 72 JR] |
| Date | 03 April 2019 |
[2019] IEHC 215
THE HIGH COURT
JUDICIAL REVIEW
Twomey J.
[2018 No. 72 JR]
Order of prohibition – Autrefois convict – Abuse of process – Applicant seeking the prohibition of his trial – Whether the law on autrefois convict and abuse of process was such as to justify the prohibition of the applicant’s trial
Facts: In Killavullen, Fermoy, County Cork, a boy of 14 years of age was killed when he fell onto the road out of a tractor being driven by an employee of the applicant, Mr Ross. Arising out of that accident Mr Ross was found guilty on the 2nd of October 2014 of an offence contrary to s. 54(2) of the Road Traffic Act 1961, namely allowing a defective vehicle to be driven which was a danger to the public. The defect in the vehicle was the fact that the left-hand door of the tractor was broken and could not be closed or locked. Instead, cable ties were used to secure the door shut. The proceedings came before the High Court because, arising from an inspection of the tractor by the Health and Safety Authority, Mr Ross was being prosecuted under the Safety Health and Welfare at Work Act 2005 on the grounds that the tractor was an unsafe place of work as it had a defective lock on the left-hand door resulting in the door not being capable of being closed or locked. The criminal proceedings were adjourned to the sessions of Cork Circuit Criminal Court commencing on the 6th of February, 2018 for a trial date to be fixed. However, on the 29th of January, 2018, Mr Ross obtained leave from Noonan J to apply for judicial review and, in particular, to seek an order prohibiting his trial at Cork Circuit Criminal Court for the workplace offence under the 2005 Act, in light of his previous conviction for the road traffic offence. Mr Ross claimed that, based on the principle of autrefois convict, he had been convicted under the 1961 Act and so should not be prosecuted a second time for what was the same or substantially the same offence, and that he was convicted in October 2014 of an offence arising out of the same set of facts as the offence for which he was due to be tried in 2019, and that it was an abuse of process for there to be sequential trials of Mr Ross where the offences are on an ascending scale of gravity.
Held by the Court that while Mr Ross should not have had the prospect of the trial hanging over him for four years, the interference by the courts in the prosecutorial process by means of prohibition is a power which is only exceptionally used.
The Court held that the law on autrefois convict and abuse of process is not such as to justify the prohibition of Mr Ross’ trial for a workplace offence.
Order refused.
This is a case involving a tragic accident in Killavullen, Fermoy, County Cork when Michael Murphy, a boy of 14 years of age, was killed when he fell onto the road out of a tractor being driven by an employee of the applicant (‘Mr. Ross’). Arising out of that accident Mr. Ross was found guilty on the 2nd of October 2014 of an offence contrary to section 54(2) of the Road Traffic Act, 1961 (the ‘1961 Act’), namely allowing a defective vehicle to be driven which was a danger to the public. The defect in the vehicle was the fact that the left-hand door of the tractor was broken and could not be closed or locked. Instead, cable ties were used to secure the door shut.
The proceedings come before this Court because, arising from an inspection of the tractor by the Health and Safety Authority (the ‘HSA’), Mr. Ross is now being prosecuted under the Safety Health and Welfare at Work Act, 2005 (the ‘2005 Act’) on the grounds that the tractor was an unsafe place of work as it had a defective lock on the left-hand door resulting in the door not being capable of being closed or locked. The criminal proceedings were adjourned to the sessions of Cork Circuit Criminal Court commencing on the 6th of February, 2018 for a trial date to be fixed.
However, on the 29th of January, 2018, Mr. Ross obtained leave from Noonan J. to apply for judicial review and, in particular, to seek an order prohibiting his trial at Cork Circuit Criminal Court for this workplace offence under the 2005 Act, in light of his previous conviction for the road traffic offence.
Mr. Ross claims that:
• Based on the principle of autrefois convict, he has been convicted under the Road Traffic Act, 1961 and so should not be prosecuted a second time for what is the same or substantially the same offence, and that
• He was convicted in October 2014 of an offence arising out of the same set of facts as the offence for which he is now due to be tried in 2019, and that it is an abuse of process for there to be sequential trials of Mr. Ross where the offences are on an ascending scale of gravity.
The District Court Conviction Order of 10th November, 2017 sets out the details of Mr. Ross's conviction under the 1961 Act as follows:
‘On the 23-Aug-2013 at KNOCKNACULLOTA KILLAVULLEN CORK public place IN THE SAID DISTRICT COURT AREA OF FERMOY while being the owner of vehicle registration number 02C3830 did allow the said vehicle to be driven while there was a defect affecting the said vehicle which was known to you or which you could have discovered by the exercise of ordinary care and which was such that the said vehicle while in motion was a danger to the public.
Contrary to section 54(2) of the Road Traffic Act, 1961 provides the offence. Section 54(4) of the Road Traffic Act, 1961 (as amended by section 18 of the Road Traffic Act, 2006) provides the penalty.’
The maximum penalty under s. 54(4) of the 1961 Act is €5000 and a prison sentence of 3 months. In the District Court, Judge Sheridan imposed a fine of €700 on Mr. Ross. It is relevant to note that young Michael was a son of an employee of Mr. Ross and the family lived in Mr. Ross” neighbourhood and was well known to Mr. Ross and so his death was a great tragedy for the entire community. It is also important to note that Mr. Ross was not driving the tractor at the time, rather an employee of his was the driver, and there was no suggestion that Mr. Ross had permitted Michael to be driven in the tractor. Despite the awful tragedy that has befallen Michael and his family, it seems that in light of these circumstances, the nature of the defect and the extent of Mr. Ross” moral, as distinct from legal, culpability for the accident, Judge Sheridan did not impose a custodial sentence on Mr. Ross.
The offence which Mr. Ross in now being charged with under the 2005 Act clearly arises from the same set of circumstances and from the same defective lock as is apparent from the Statement of Charges contained in the Book of Evidence against Mr. Ross, which states:
‘[…] you being an employer within the meaning of the Safety, Health and Welfare at Work Act, 2005, did fail to manage and conduct your undertaking in such a way as to ensure in so far as is reasonably practicable that in the course of the work being carried on, individuals at the place of work (not being your employees) were not exposed to risks to their safety, health and welfare, in that, you failed to maintain a Deutz Fahar Agroton 165 tractor registration number 02 C 3830, which said tractor being a place of work within the meaning of the said Act, in a condition that was safe and without risk to health, in particular, the lock keeper on the left hand side of the door of the tractor cab being fractured and distorted, such that the door could not be latched, closed or locked, being thus in breach of Section 12 of the Safety, Health and Welfare at Work Act 2005, and as a consequence a person, to wit, Michael Murphy, suffered personal injury and died.
Contrary to Section 77 (9) (a) of the Safety, Health and Welfare at Work Act, 2005.’
Section 77(9)(a) states:
‘ Subject to paragraph (b), if a person suffers any personal injury as a consequence of the contravention of any of the relevant statutory provisions by a person on whom a duty is imposed by sections 8 to 12 inclusive and 14 to 17 inclusive, the person on whom the duty is imposed commits an offence.’
It seems clear that the relevant breach of duty in this case, which gives rise to a criminal offence as a result of s. 77(9)(a), is contained in s. 12 of the 2005 Act, which states that:
‘Every employer shall manage and conduct his or her undertaking in such a way as to ensure, so far as reasonably practicable, that in the course of the work being carried on, individuals at the place of work (not being his or her employees) are not exposed to risks to their safety, health and welfare.’
Having set out the two offences which are at issue, it is next proposed to consider the law in relation to, first, the prohibition of trials generally and secondly, the grounds upon which Mr. Ross relies to seek the prohibition of his prosecution for a workplace offence in this case.
It is important to bear in mind that prohibiting a criminal trial is something which is only done in exceptional circumstances. The Supreme Court case of Harris v. DPP [2012] IESC 6 was a case in which the Supreme Court refused to prohibit prosecution on the grounds of delay under the 2005 Act regarding a fatal accident at work involving the applicant's lorry some five years after the accident. Macken J. stated at p. 18 that:
‘It is also important to recognise the exceptional nature of the remedy of prohibition in the context of the criminal justice process, a matter also considered in Devoy v. D.P.P., supra., and mentioned in several other cases, including D.C. v. D.P.P. [2005] 4 I. R. 281, in which it was pointed out that prohibition is a remedy ‘to be granted only in exceptional circumstances’. Kearns J. in Devoy at p.255 stated:-
“… any court...
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