The People (At the Suit of the DPP) v Osborn Irabor

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 19 October 2021
• Neutral Citation: [2021] IECA 271
• Court: Court of Appeal (Ireland)
• Docket Number: Record No: 288/2018

Between/

The People (At the Suit of the Director of Public Prosecutions)

Respondent

and

Osborn Irabor

Appellant

[2021] IECA 271

Edwards J.

Kennedy J.

Donnelly J.

Record No: 288/2018

THE COURT OF APPEAL

Conviction – Careless driving causing death – Unsatisfactory trial – Appellant seeking to appeal against conviction – Whether the appellant’s trial was unsatisfactory

Facts: The appellant, Mr Irabor, was convicted by a jury on the 24th of October 2018 of the offence of careless driving causing death following a two-day trial. He was subsequently sentenced on the 12th of November 2018 to a penalty involving disqualification from driving for a period of four years. He appealed to the Court of Appeal against his conviction. He contended that his trial was unsatisfactory on the following grounds: (1) the trial judge inadequately charged the jury on the relevant law in relation to careless driving and how that law should be applied having regard to the particular facts of the appellant's trial; (2) the judge failed to properly or adequately re-charge the jury when they sought his assistance during the course of their deliberations and he further erred in law in failing to re-charge them in relation to the legal elements of careless driving and in particular the concepts of due care and attention and risk and how they should apply that law to the appellants particular case and the circumstances of the accident; (3) there was not sufficient evidence before the jury to prove beyond reasonable doubt that at the time of the accident, the appellant was driving his vehicle without due care and attention; (4) there was not sufficient evidence before the jury to prove beyond reasonable doubt that the appellant was guilty of an appreciable falling below the standard of care and attention expected of a reasonably competent driver; (5) the judge failed to direct the jury that if they believed the explanation advanced on behalf of the appellant that the deceased was in a blind spot coming from an unlit area and that the appellant therefore did not see her coming, that it was for the prosecution to disprove this explanation and that the appellant should be acquitted if the explanation left a real doubt; (6) the prosecution witness, Sergeant Kearney, tendered evidence beyond his expertise, demonstrated bias towards the appellant's case and allowed his sympathies for the deceased to dictate his views on the circumstances of the incident; (7) the evidence of Sergeant Kearney that the appellant ignored the yield line in circumstances where the appellant did not see the oncoming cyclist misrepresented the legal obligations of the appellant under the Road Traffic Acts and Regulations; (8) the conviction was unsatisfactory by reason of the fact that the public light from the direction the deceased was approaching and nearest to the site of the accident was not functioning, the expert opinion that the manoeuvre carried out by the appellant was not unsafe, the bicycle was in a blind spot caused by the wing mirror of the vehicle and therefore the appellant was not able to see the approach of the deceased, the helmet worn by the deceased was not capable of being securely fastened leading to her receiving serious head injuries that led to her death, and the absence of adequate CCTV footage to show the full circumstances of the accident; (9) the judge failed to adequately or properly present the defence case to the jury during the course of his charge, and, further and/or in the alternative, the judge failed to present the defence case in a manner which was fair to the appellant in all the circumstances; (10) the verdict was against the evidence and the weight of the evidence having regard to the circumstances of the case and having regard to the onus of proof required to be discharged by the prosecution.

Held by the Court that the jury was properly instructed, and received adequate explanation, as to the legal ingredients of the offence of careless driving causing death, on the issue of the so-called “benefit of the doubt” and on the “two views” rule. The Court held that there was nothing unfair in how the trial judge summarised the evidence. The Court held that the jury’s view of the facts was unassailable on appeal, providing there was at least some evidence to support their verdict.

The Court held that the appellant’s appeal against his conviction would be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered on the 19th day of October 2021 by Mr Justice Edwards

Introduction

1 The appellant was convicted by a jury on the 24th of October 2018 of the offence of careless driving causing death following a two-day trial. He was subsequently sentenced on the 12th of November 2018 to a penalty involving disqualification from driving for a period of four years.

2 The appellant now appeals against his conviction.

The circumstances of the case

3 The facts of this case are uncontroversial, and this appeal is mainly concerned with issues concerning the manner in which the trial was conducted and issues of law.

4 The incident underlying the charge of careless driving causing death, the subject of this appeal, occurred on the 17th of November 2014 at Burlington Road in Dublin 4. At the time the appellant was employed as a driver with Dublin Bus and on the date in question was driving vehicle registration number 03 D 20313 on the No.38 bus route, which goes from the Burlington Road area of Dublin 4 to Damastown in Dublin 15. At approximately 9.45pm the bus was approaching the last bus stop, i.e., the terminus, on Burlington Road. There were no passengers in the bus. The bus came to the T-junction leading from Burlington Mews onto Burlington Road, proceeded to turn right at the junction and as this manoeuvre was being conducted, the bus collided with a pedal cyclist, i.e., Ms Mary White (date of birth 27th May 1959), who was travelling along Burlington Road, coming from the Mespil Road direction and proceeding in the direction of Leeson Street Upper. Ms. White suffered serious injuries as a result of the collision and subsequently died.

5 During the trial a number of witnesses were called on behalf of the prosecution. Garda Michael McHugh gave evidence to the effect that on the date in question he was on mountain bike duty. He testified that at around 9:30pm, whilst cycling down Burlington Road from Leeson Street Upper, he heard a man shouting and observed a Dublin Bus parked in the middle of the road. He saw the appellant “ in a distressed state and he had his hands on his head” and then observed an unresponsive woman, later established to be Ms White, on the ground. Garda McHugh said that Ms White was conveyed to hospital and that he then proceeded to breath-test the appellant, which test revealed that the appellant had no alcohol in his system. Garda McHugh told the jury that he later attended at St Vincent's Hospital and took possession of a green jacket and a reflective jacket that Ms White had been wearing.

6 A Mr Brendan Lodola, station officer in Donnybrook Fire Station, gave evidence that on the 17th of November 2014 he was on duty and assigned to Delta 12 which was a fire appliance. Fire Brigade assistance was requested in respect of an incident on Burlington Road, and he attended. A team of fire brigade paramedics also attended. He explained that he arrived at the scene at a little before 10.20pm and observed a Dublin Bus stopped at a junction, and a lady on the ground beside a push bike, unconscious. Mr. Lodola indicated where the lady was situated by reference to photographs. He said that fire brigade paramedics attended to the injured lady at the scene, and his role was to supervise the involvement of fire brigade personnel at the scene. He requested an advanced paramedic car and that an ambulance arrived shortly afterwards. He stated that the lady was placed on a spinal board and was taken to St. Vincent's Hospital, where she was received in the Emergency Department and was admitted in a comatose state.

7 Efforts to treat and revive Ms White were unsuccessful and she was pronounced dead at 10.15am on the 19th of November 2014, having succumbed to her injuries. Dr Niall Swan, a Consultant Pathologist at St Vincent's Hospital, who conducted a post mortem examination gave evidence at the trial that Ms. White had died as a result of “ massive craniocerebral trauma due to or as a consequence of a traumatic head injury.”

8 Garda Patrick O'Brien gave evidence that when he arrived at the scene of the incident on the evening in question he commenced directing traffic away. He explained that he cordoned off the area and at 10:25pm started preserving the scene. He indicated that he gathered a number of exhibits including a cycling helmet and a red rear bicycle light.

9 Garda Alan Quinn, a PSV inspector, also gave evidence to the jury. He had examined the Dublin Bus in question and concluded that the vehicle was “ in roadworthy condition” prior to the collision. He noted damage to the front bumper surrounding the off side front fog light. He told the jury that there were “ no defects that were a contributory factor in this collision.” When asked about his inspection of the pedal cycle, he said that following an examination he noted that the front tyre was deflated due to impact damage to the rim; however, the tyre was in serviceable condition prior to the accident. He also noted that a white front light was fitted to the bicycle that was in working order. He said there was “ no mechanical problem with the bike.”

10 The jury heard that CCTV footage was collected during the investigation, and this was shown during the trial. Footage which was recorded by a camera within the driver's cab of the Dublin Bus in question was played to the jury and became a prosecution exhibit; this footage did not capture the collision.

11 Sergeant Paul Kearney, who is a Forensic...