Ross v DPP
| Jurisdiction | Ireland |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 30 September 2020 |
| Neutral Citation | [2020] IECA 264 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No: 208/2019 |
| Date | 30 September 2020 |
[2020] IECA 264
Edwards J.
McCarthy J.
Donnelly J.
Record No: 208/2019
THE COURT OF APPEAL
Sequential prosecutions – Abuse of process – Health and safety offence – Appellant seeking prohibition of sequential trials – Whether sequential trials would be an abuse of process
Facts: A fourteen-year-old boy was killed when he fell out of the passenger door of a tractor which was being driven by an employee of the appellant, Mr Ross. The accident and the death occurred on the 23rd August, 2013. Legal issue arose because of a decision to prosecute the appellant under the Safety, Health and Welfare at Work Act, 2005 for an offence despite the fact that three years earlier, on the 2nd October, 2014, he had been convicted for an offence under the Road Traffic Act 1961 (as amended) arising from the same accident. Many grounds of appeal were put forward by the appellant in his Notice of Appeal. The primary ground relied upon was that the trial judge erred in applying the criterion set out in Harris v DPP [2012] IESC 6 in circumstances where the appellant had relied on the rule in Connelly v DPP [1964] A.C. 1254 as applied and adopted by the Supreme Court in Cosgrave v DPP [2012] 3 I.R. 666. The appellant submitted that the two offences arose out of the same facts or are facts which form or are part of a series of offences of the same or similar character and that the general rule that these should be prosecuted together applies. The main argument made in the appellant’s submissions was that sequential trials for the two offences would be an abuse of process and should thereby be prohibited.
Held by the Court of Appeal that the Health and Safety offence was founded on the same facts as the Road Traffic offence. The Court was satisfied that on careful consideration of the facts of this case, these offences were offences which could have been joined on the same indictment pursuant to rule 3 of the indictment rules. The Court was satisfied that the special circumstances pointed to by the respondent, the Director of Public Prosecutions, were not sufficient to justify the sequential prosecutions in this case of the Health and Safety offence after the Road Traffic offence. The Court held that the trial judge erred in the exercise of his discretion in failing to grant the appellant the relief sought.
The Court held that the appeal would be allowed.
Appeal allowed.
The origin of this case is the tragic death of a fourteen-year-old boy, Michael Murphy, who was killed when he fell out of the passenger door of a tractor which was being driven by an employee of the appellant. The accident and the death occurred on the 23 rd August, 2013. The legal issue arises because of a decision to prosecute the appellant under the Safety, Health and Welfare at Work Act, 2005 (hereinafter, “the Act of 2005”) for an offence despite the fact that three years earlier, on the 2 nd October, 2014, he had been convicted for an offence under the Road Traffic Act, 1961 (as amended) (hereinafter, “the Act of 1961”) arising from the same accident.
The fact that seven years have elapsed since August 2013 and this judgment does not reflect well on this State. No family should have to wait that long before a final decision on whether a prosecution arising out of the death of their son can occur. Indeed, throughout the proceedings, the investigating and prosecuting arms of the State appear to have given little thought to the interests of the victim's family, who are themselves victims within the meaning of Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime and the Criminal Justice (Victims of Crime) Act, 2017. At least no evidence of such consideration appears from the affidavits or submissions filed on behalf of the respondent (hereinafter “the DPP”).
The appellant was the owner of the tractor from which Michael Murphy fell. The appellant was not the driver of the tractor but was (apparently) the employer of the person who was driving the tractor. In a summary prosecution taken against the appellant under s. 54(2) of the Act of 1961, the prosecution alleged that as owner of the vehicle, he allowed the vehicle to be driven while there was a defect affecting it which was known to him or which could have been discovered by the exercise of ordinary care and which was a danger to the public while the vehicle was in motion. That defect was said to be the defective lock/latch on the left hand side door of the tractor cab. The appellant was convicted of that offence in the District Court in Mallow on the 2 nd October 2014.
In September 2017, the appellant was notified that he was to be prosecuted for an offence under s. 77 of the Act of 2005. It was alleged he was an employer who failed to manage and conduct his undertaking in such a way as to ensure insofar as it was reasonably practicable that in the course of work being carried on, individuals at the place of work were not exposed to risks to their safety, health and welfare. The details of that charge alleged that he failed to maintain the tractor in a safe condition, in particular “the lock keeper on the left hand 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 s. 12 of the Safety, Health and Welfare at Work Act, 2005, and as a consequence a person, to whit (sic), Michael Murphy suffered personal injury and died.”
In summary, the case concerns a situation where there have been sequential prosecutions arising out of this single event: the falling though the passenger door of the tractor by Michael Murphy. The issue is whether in all the circumstances the second trial ought to be prohibited. In the High Court, Twomey J. held that there was no basis for a prohibition as it was not an abuse of process. It is against that judgment that the appellant appeals.
Section 54(2) of the Road Traffic Act, 1961 as amended provides:
“where a mechanically propelled vehicle or combination of vehicles is driven in a place where there is a defect affecting the vehicle or a combination of vehicles which the owner knows of or could have discovered by the exercise of ordinary case and which is such that the vehicle or a combination of vehicles is, when in motion, a danger to the public, such owner commits an offence.”
Section. 77(9)(a) of the Act of 2005 provides, in part, that:-
“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 to 14 to 17 inclusive, the person on whom the duty is imposed commits an offence.”
The particular section of the Act of 2005 that the appellant is alleged to have breached is s. 12 thereof. That section provides that:-
“Every employer shall manage and conduct his or her undertaking in such a way as to ensure, so far as is 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 or welfare.”
In the course of his judgment. Twomey J. noted that the Supreme Court held in Harris v. DPP [2012] IESC 6 that it is only in exceptional circumstances that a criminal trial should be prohibited. On this basis, Twomey J. noted, by way of preliminary observation that the remedy the appellant was seeking, the prevention of his prosecution of an offence, was an exceptional one.
Twomey J., under the heading: “An accused cannot be tried for the same or substantially the. same offence.” discussed the appellant's reliance on DPP v. Fiunamore [2009] 1 I.R. 153. That case is authority for the principle that a person cannot be tried a second time for “the same offence or, substantially the same, offence” for which he was already tried.
In addition to the reliance on the above, the trial judge noted that the appellant argued in the High Court that the two offences being tried sequentially (over what was a period of four years at the time) amounts to an abuse of process. The appellant relied on Cosgrave v. DPP [2012] 3 I.R. 666 to this effect. Although the Supreme Court did not find the sequential trial to be an abuse of process, the appellant nonetheless relied on Denham C.J. in that case wherein she stated that-
“Thus, while there is a general rule, as described, that a prosecutor should combine in one indictment all the. charges he intends to prosecute, and that there should be no sequential trials for offences on an ascending scale, of gravity, the. court also retains a discretion to protect the fair trial process against an abuse of process in all the circumstances.”
The appellant in the High Court also relied on O'Donnell J. who was in the minority in Cosgrave v. DPP, wherein he stated :-
“[…] a second trial on the. same or similar facts is not always and necessarily oppressive, and there may in a particular case be special circumstances which make, it just and convenient in that case.”
In his analysis, Twomey J. asked the question of whether the workplace offence was the same or substantially the same as the Road Traffic offence. Twomey J. analysed the two sets of offences and found that the proofs were different as were the penalties. He asked himself the question that Kingsmill Moore J. in The People v O'Brien [1963] I.R. 92 did as to whether the necessary elements to prove the workplace offence are also the necessary ingredients to prove the Road Traffic offence....
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DPP v The Dublin Metropolitan District Court
...occur absent special circumstances (see Cosgrave v. DPP [2012] 3 IR 666 at 737 and 738 (O'Donnell J., as he then was) and Ross v. DPP [2020] IECA 264 (at paragraph 51 per Donnelly 51 In my view, it was unfair to the District Judge to advance this submission in circumstances where no submiss......