Swaine v DPP & Sheridan
| Jurisdiction | Ireland |
| Judge | Justice Geoghegan |
| Judgment Date | 26 April 2002 |
| Neutral Citation | [2002] IESC 30 |
| Docket Number | 278/96 |
| Court | Supreme Court |
| Date | 26 April 2002 |
[2002] IESC 30
THE SUPREME COURT
Murphy J.
Hardiman J.
Geoghegan J.
and
Citations:
MAHER V JUDGE O'DONNELL 1995 3 IR 530
R V HENNESSY 1978 68 CAR 419
R V WARD 1993 1 WLR 619
Synopsis:
CRIMINAL LAW
Road traffic offence
Judicial review - Certiorari - Evidence - Whether evidence of witness unfairly suppressed - Whether denial of fair procedures occurred in conduct of trial (278/1996 - Supreme Court - 26/04/2002)
Swaine v DPP
Facts: The applicant had been convicted of dangerous driving. The applicant had sought an order of certiorari in the High Court in respect of the conviction which was refused by Costello P. The applicant contended that evidence of one of the witnesses to the incident in question had been suppressed and that the trial judge had been misled in arriving at his decision. The applicant appealed against the decision refusing the relief sought.
Held by the Supreme Court (Geoghegan J delivering judgment; Murphy J and Hardiman J agreeing) in dismissing the appeal. The decision by the State not to call one of the witnesses was entirely reasonable. It would be absurd to suggest that the evidence of that witness could have led to an acquittal. It was not a case in which evidence material to the substantial issues was either deliberately or accidentally suppressed or not made available.
This is an appeal from an order of the High Court (Costello P.) refusing an order ofcertiorari quashing a conviction for dangerous driving affirmed on the hearing of a district court appeal at Nenagh Circuit Court on the 26th of October, 1993.
The statement of application for judicial review seeking that order ofcertiorari contained only one ground upon which the relief was being sought. That read as follows:
"That the conviction for the offences alleged against the applicant herein was improperly and irregularly obtained by the prosecution, by reason of its suppression and non-disclosure to the applicant and her advisors of the Evidence of Sean Walsh, Monareagh, Coolgreany, Gorey in the county of Wexford, who had made a statement exculpatory of the applicant which was at all times in the Possession of the Prosecution and of which Evidence Judge Sheridan was left unaware and was thereby misled before arriving at his decision herein; the applicant respectfully submits that she is entitled to an order of certiorari Ex Debito Justitiae."
To understand the context in which the ground for relief was drafted it is necessary to explain in some detail both the factual background surrounding the alleged offence and the procedural history of the case. The dangerous driving alleged against the applicant was that she unexpectedly did a U turn on the road causing a garda motor cyclist to crash into the side of her car as a consequence of which she sustained very serious injuries. At the time of the accident there was a second garda motor cyclist who according to the prosecution case had been driving behind the injured guard but who according to the defence case had been driving ahead of him. For the purpose of the prosecution, statements had been taken by the gardaí and these included statements by the two garda motor cyclists and statements by two independent witnesses. The injured guard Garda Cullen had described in his statement how on the 11th of September, 1992 at approximately 5.30 p.m. he was riding an official garda motor cycle from Portlaoise to Templemore. Garda Galvin was driving behind him also on a motor cycle. They were on a wide stretch of roadway with a good surface and they were coming up to Valla Cross where there is a minor road junction to the right. Garda Cullen said that he had seen a Ford Escort car stopped on the left hard shoulder but that as he got nearer the junction the Escort suddenly began to move to its right across the road in front of them without any indication. The garda immediately blew his horn and applied his brakes and changed down gears and tried to steer the motor cycle to the right to avoid the car but the car did not stop and continued to cross the road and he collided with the offside front of the Escort on the incorrect side of the road near the mouth of the junction with the minor road.
The second garda motor cyclist, Garda Galvin, made a statement in which he explained that he was driving some ten to fifteen yards behind Garda Cullen and he went on to give an identical account of the accident. Garda Galvin said in his statement:
"I stopped my motor cycle slightly beyond the scene and came back to render assistance."
The garda version of the accident was corroborated by a statement of one Kieran Mahoney. He explained that he was a front seat passenger in a car travelling between Borris-in-Ossory and Roscrea on the main Dublin/Limerick road and that the two garda motor cyclists overtook them. He said that the first was a white marked garda bike and that this was followed by a similar blue unmarked bike. It ultimately emerged that Garda Cullen was driving the white marked garda bike and Garda Galvin was driving the blue unmarked bike. Mr. Mahoney then went on to describe how he saw a car on the left hand side of the road and that as the garda bikes approached that car, it started to move out from the left into the path of the garda bike. He said that the white garda bike started to move over to the centre of the road to avoid the car but that the car continued to cross the road and the bike continued across the road to avoid it. The result was that the garda bike struck the car on the front driver's wing and the garda landed on the grass verge on the right hand side. For all practical purposes this was a similar account of the accident to that given by the two gardaí.
There was, however, a statement from William Fletcher, the driver of the car in which Mr. Mahoney had been travelling. Mr. Fletcher did not give as detailed an account but he did say the following:
"On the straight stretch of road coming near the soccer pitch two motor bikes passed us out. They were doing about fifty to fifty five miles per hour. Just as they approached the cross at the soccer pitch, a car appeared to be stopped in the middle of the road. One motor cycle avoided the car and went in at the left hand side of the hard shoulder but the second motor cycle collided with the car. We were back a fair distance from the crash when it happened about 350 yards."
I would comment at this stage that the prosecuting solicitor reading that statement would not have considered it to be seriously at variance with either the account of the accident given by the two relevant guards or the account given by his own passenger, Mr. Mahoney.
At the time of the accident the applicant/appellant had her father as a passenger and the purpose of the U turn manoeuvre was to pick up her daughter, Pauline Swaine, whom she met walking along the road. Neither the appellant nor her father made statements to the guards but the daughter did make a statement. Her statement was not well transcribed or typed out but the relevant parts are clear enough. She initially thought her mother was intending to stop in the direction that she was travelling and then to...
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