Rynn v DPP

JudgeKearns P.
Judgment Date23 June 2011
Neutral Citation[2011] IEHC 241
CourtHigh Court
Date23 June 2011

[2011] IEHC 241


[No. 1181 JR/2010]
Rynn v DPP






BRADDISH v DPP & JUDGE HAUGH 2001 3 IR 127 2002 1 ILRM 151 2001/2/351

SAVAGE v DPP 2009 1 IR 185 2008/58/12074 2008 IESC 39


LEAHY v DPP & JUDGE O'SHEA UNREP CHARLETON 5.2.2010 2010/28/7032 2010 IEHC 22



Preservation - Vehicle - Inspection - Dangerous driving causing death - Possibility of mechanical failure - Prejudice and risk of unfair trial - Whether applicant engaging specifically with prosecution evidence - Whether material if vehicle had mechanical failure - Whether applicant in position to challenge prosecution evidence - Delay - Whether delay on applicant's part in seeking inspection and in commencement of proceedings - Crash in November 2008 - Vehicles released in May 2009 - Applicant charged in October 2009 - Book of evidence served in February 2010 - Inspection of vehicles sought in March 2010 - Judicial review proceedings in August 2010 - Braddish v DPP [2001] 3 IR 127; Savage v DPP [2008] IESC 39, [2009] 1 IR 185; Perry v Judges of Circuit Criminal Court [2008] IESC 58 (Unrep, SC, 28/10/2008); Leahy v DPP [2010] IEHC 22 (Unrep, HC, Charleton J, 5/2/2010) considered - Prohibition refused (2010/1181JR - Kearns P - 23/6/2011) [2011] IEHC 241

Rynn v DPP


JUDGMENT of Kearns P. delivered the 23rd day of June 2011


In these proceedings the applicant seeks an order by way of judicial review for prohibition of his forthcoming criminal trial on the basis of the alleged 'failure' on the part of the gardaí to preserve certain items of evidence the absence of which is claimed to render it impossible for the applicant to obtain a fair trial. In this case the items in question are two lorries which were involved in a serious road traffic accident.


The facts leading to the criminal prosecution of the applicant arise from a road traffic accident which occurred on the M4 motorway near Barrogstown, Maynooth, Co. Kildare just before 9.00 a.m. on 20 th November, 2008. On that occasion the applicant was the driver of an articulated lorry proceeding from Dublin which drove into the back of a coal truck which had been travelling in the same westerly direction and which after the accident was found located on the left hand hard shoulder of the motorway. The coal truck was found to have shed its load, though whether that was caused by the impact between the vehicles or had commenced prior to impact is unclear. The point of impact as marked on the garda sketch appears to be on the border of the inside lane and the hard shoulder. From the markings on the road surface it appears that the collision pushed the coal truck forward. The driver of the coal truck was found on the road margin to the passenger side of his own vehicle having suffered severe lacerating injuries to the skull. He died at the scene. The position of his vehicle and that of his body suggest that his own vehicle was pushed forward into collision with him after he had dismounted from his cab to investigate some problem with his vehicle or load.


The applicant did not advance any specific reason for the collision in his cautioned statement to the gardaí made after the accident. He stated as follows:-

"I was driving along and the next thing I remember is hearing a bang, it seemed to be on my left hand side. I can't remember anything else after that… I don't remember seeing anything on the road that would have forced me to swerve."


In his witness statement, which is included in the Book of Evidence, Tom McMahon, a bus driver employed by Bus Eireann who was driving behind the applicant at the time of the crash, states as follows:-

"I observed the lorry in front start to pull into the hard shoulder. It looked to me like he was pulling in to stop. I don't remember him having indicated to do this and I also can't recall seeing any brake lights. He continued to pull over and the next thing I saw was what I can best describe as an explosion… I would estimate that the lorry was almost the full way into the hard shoulder when this explosion occurred. I proceeded past the lorry very slowly. I may have pulled out into the overtaking lane to do so but I can't be sure. It was only as I was travelling past the lorry that I could see he had collided with another vehicle."


A Garda forensic investigator, Sgt. Duggan examined the scene and states in his statement of evidence and investigation report, which is included in the Book of Evidence, that the driver of the coal truck appeared to have pulled in as he was about to shed some of his load of coal. The resting position of the driver indicates that he had got out of his truck and had gone to the passenger side. Sgt. Duggan concluded that the post-impact position of both vehicles was consistent with the evidence of Mr. McMahon, i.e., that the articulated lorry veered into the hard shoulder. Sgt. Duggan also concluded that the lack of skid marks indicated that the applicant did not apply the brakes before the impact. His final conclusion was as follows:-

"There is no logical reason why the driver of the articulated truck entered the hard shoulder. This action was the primary cause of the collision."


Garda John Galvin, a PSV Inspector, also prepared a detailed report about the condition of the two vehicles, which is contained in the Book of Evidence. Both vehicles were found to have been in good pre-accident condition. The Book of Evidence also contains a detailed map of the scene prepared by Garda Galvin and numerous photographs of the scene, including aerial photographs.


In the aftermath of the accident it appears that the vehicles were brought to Murphy Truck Centre, Ballymount, Dublin for further assessment by the relevant insurers. It is deposed in the affidavit of Garda Aoife O'Reilly that Virginia Transport Ltd., the owners of the truck driven by the applicant (his employers at the time of the accident), were contacted after these assessments, as were the representatives of the deceased driver of the coal lorry, and these parties all consented to the release of the vehicles from storage. The applicant's vehicle was released on 8 th May, 2009 and the other vehicle was released on 29 th May, 2009. The applicant's solicitors state that they were never directly informed that the vehicles were to be released and the gardaí are not in a position to contradict that statement.


The applicant made a statement in relation to the incident on 21 st April, 2009. He was subsequently charged with dangerous driving causing death contrary to section 53 (1) of the Road Traffic Act on 22 nd October, 2009. The applicant first appeared in the District Court on the 7 th January, 2010. He was served with a Book of Evidence and was returned for trial to Naas Circuit Court on 18 th February, 2010. When the applicant was returned for trial, his solicitors engaged advice of counsel. On the advice of counsel, a consulting engineer was engaged, and the engineer, having reviewed the relevant documents, was of the view that he needed to examine both vehicles to give a definite account of the cause of the collision. The applicant first sought examination of the vehicles on the 31 st March, 2010. The office of the Chief State Solicitor wrote in reply on the 21 st May, 2010 to say the vehicles were no longer available for inspection. The present judicial review proceedings were instituted on the 25 th August, 2010.


The applicant seeks an order of prohibition on the grounds that the gardaí have disposed of vital evidence without providing the applicant an opportunity to have it examined, thereby creating a circumstance whereby the applicant is seriously prejudiced and where there is a real risk of an unfair trial.


The applicant submits that the risk arises in the following manner. The coal lorry when impacted was not in the position in which it was later found. It is claimed on the applicant's behalf that without examining the components of the coal truck it is impossible to ascertain where it was at the time of the accident. The applicant further claims that the accident may have been caused by the wheel of the applicant's lorry being damaged by a loose driveshaft coming away from the lorry. It is speculated that the breaking of the driveshaft may have caused the coal lorry to stop suddenly thereby causing the coal lorry to stop as it did. The applicant's engineer is of the opinion that a gouge mark left in the road was probably made by the driveshaft in question and the engineer also noted damage to the offside inner wheel tyre of the applicant's own vehicle. However, the applicant's engineer states that he is unable to give a definite opinion to this effect without examining both vehicles.


The applicant seeks to rely primarily on Braddish v. D.P.P. [2002] 1 I.L.R.M. 151 and Savage v. D.P.P. [2008] I.E.S.C. 39.


In Braddish, Hardiman J. stated as follows:-

"It is the duty of the Garda, arising from their unique investigative role, to seek out and preserve all evidence having a bearing or potential bearing, on the issue of guilt or innocence. This is so whether the prosecution proposes to rely on the evidence or not, and regardless of whether it assists the case the prosecution is advancing or not… The prosecution are not entitled to take the view that once they have better evidence, or evidence more convenient for them to deploy, they are entitled to destroy the evidence which came first to hand."


The Court further stated that the rule applied not only to evidence with a direct and established evidential significance,...

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