Toohey (applicant/respondent) v DPP (appellant/ respondent)

• Jurisdiction: Ireland
• Judge: Mr Justice Finnegan
• Judgment Date: 03 December 2008
• Neutral Citation: [2008] IESC 64
• Court: Supreme Court
• Date: 03 December 2008

[2008] IESC 64

THE SUPREME COURT

Denham J.

Hardiman J.

Finnegan J.

65/07

Toohey v DPP & Judges of the Circuit Court

JUDICIAL REVIEW

BETWEEN

LIAM TOOHEY

APPLICANT/RESPONDENT

and

THE DIRECTOR OF PUBLIC PROSECUTIONS AND THE JUDGES OF THE CIRCUIT COURT

APPELLANTS/RESPONDENTS

ROAD TRAFFIC ACT 1961 S53(1)

ROAD TRAFFIC ACT 1961 S53(2)(a)

ROAD TRAFFIC ACT 1961 S53(2)(b)

ROAD TRAFFIC (CONSTRUCTION, EQUIPMENT & USE OF VEHICLES) REGS 1963 SI 190/1963 ART 16(7)

ROAD TRAFFIC ACT 1961 S102

RSC O.84

BOWES v DPP 2003 2 IR 25

MCGRATH v DPP 2003 2 IR 25

SAVAGE v DPP UNREP SUPREME 3.7.2008 2008 IESC 39

LUDLOW v DPP UNREP SUPREME 31.7.2008 2008 IESC 54

CRIMINAL LAW

Evidence

Failure to preserve - Dangerous driving - Charge relating to excessively worn tyres - Failure to preserve vehicle in post-accident condition - Disposal of allegedly defective tyre - Loss of opportunity to have vehicle forensically examined - Whether trial judge erred in holding serious risk of unfair trial - Whether failure to give consideration to existence of photographs - Whether real risk of unfair trial - Applicable principles - Due process - Duty of gardaí to preserve and disclose material evidence as far as necessary and practicable - Undertaking not to rely upon evidence of inspector in relation to dangerous driving charges - Undertaking not to rely on photographs - Prejudice in defence to charge of using excessively worn tyres- Denial of availability of expert witness - Alternative evidence to be adduced in prosecution of dangerous driving charges - Savage v DPP [2008] IESC 39 (Unrep, SC, 3/7/2008) applied; Bowes v DPP [2003] 2 IR 25, Ludlow v DPP [2008] IESC 54 (Unrep, SC, 31/7/2008), Murphy v DPP [1989] ILRM 71, Z v DPP [1994] 2 IR 476 and D v DPP [1994] 2 IR 465 considered - Road Traffic Act 1961 (No 24), s 53 - Road Traffic (Construction, Equipment and Use of Vehicles) Regulations 1963 (SI 190/1963), art 16(7) - Respondent's appeal allowed (65/2007 - SC - 3/12/2008) [2008] IESC 64

Toohey v DPP

Facts: A serious road traffic accident occurred between a MAN truck and a motor car. The driver of the truck was charged with inter alia dangerous driving causing serious bodily harm, dangerous driving and offences relating to the tyres. The respondent alleged that the failure to preserve the motor vehicle after its examination by the Gardai entailed that the allegedly defective tyre was no longer available and that the applicant had lost the opportunity to have the vehicle examined. The respondent alleged that there was a real and serious risk of an unfair trial. By Order of the High Court, the appellants were restrained from further prosecuting the respondent on the three charges.

Held by Finnegan J. in relation to the charge as to the defective tyres, there was a real risk of an unfair trial. It was reasonable to preserve the tyres and this had not been done. The respondent was prejudiced in his defence as he was denied the availability of an expert witness. The Order of the High Court would be affirmed. As to the charges of dangerous driving causing serious injury or dangerous driving, the case against the respondent was that he drove his vehicle on the incorrect side of the road, It was not suggested that the tyre contributed to the accident. An undertaking was given by the appellants that there would be no expert reconstruction of the accident. There was no evidence that a real risk of an unfair trial existed by reason of the inability to obtain an expert report on the MAN truck. The appeal would be allowed and the Order of the High Court would be set aside.

Reporter: E.F.

1 Mr Justice Finnegan delivered on the 3rd day of December 2008

2 Judgment delivered by Finnegan, J. [nem diss]

3 On the 9 ^th November 2004 at 7.30 a.m. a serious road traffic accident occurred at Dunmain, Co. Wexford between a MAN rigid truck and a Citroen Saxo motor car. The driver of the motor car sustained serious injuries. Arising out of the accident the respondent on this appeal, the driver of the MAN truck, was charged with the following offences:-

4 1. Dangerous driving causing serious bodily harm contrary to section 53(1) and (2)(a) of the Road Traffic Act 1961 as amended.

5 2. Dangerous driving contrary to section 53(1) and (2)(b) of the Road Traffic Act 1961 as amended.

6 3. Using a mechanically propelled vehicle where the pneumatic tyre fitted to the same, namely the right front tyre, was excessively worn contrary to Article 16(7) of the Road Traffic (Construction, Equipment and Use of Vehicles) Regulations 1963 as amended and section 102 of the Road Traffic Act 1961 as amended.

7 The following is a brief chronology of events:-

9 th November 2004	Date of accident.
10 th November 2004	The MAN truck was returned to its owner and shortly thereafter repaired.
30 th November 2004	The respondent was arrested, furnished a cautioned statement and was interviewed at New Ross Garda Station.
26 th April 2005	The respondent charged with the offences.
24 th May 2005	Book of Evidence delivered to the respondent's solicitor.
9 th August 2005	Further evidence delivered to the respondent's solicitor.
29 th August 2005	Further evidence delivered to the respondent's solicitor.
22 nd September 2005	Further evidence delivered to the respondent's solicitor which included two statements of Garda Stuart O'Sullivan the Public Service Vehicle Inspector stationed at Wexford Garda Station.
30 th September 2005	Further evidence delivered to the respondent's solicitor consisting of photographs of inter alia the MAN truck.

HIGH COURT PROCEEDINGS

8 On the 19 ^th December 2005 the respondent sought and was granted leave to apply by way of an application for judicial review the relief sought being an order of prohibition restraining the prosecution of the respondent on the charges hereinbefore mentioned. The grounds relied on are set out in the statement of grounds as follows:-

9 2 "1. The motor vehicle which the applicant was driving (his employer's vehicle) has been examined by An Garda Siochána but has not been preserved in its post-accident condition.

10 2. An allegedly defective tyre on the vehicle has been disposed of and is not available for inspection.

11 3. The applicant has lost the opportunity to have the vehicle forensically examined."

12 The application was grounded upon the affidavit of Anthony J. O'Malley the respondent's solicitor. The chronology set out above is derived from the same. The Book of Evidence and the additional evidence served are exhibits to the affidavit and from the same the case to be made against the respondent appears as follows:-

1. Cautioned statement of the respondent.

13 The relevant portion of the statement is as follows:-

"I saw the car coming against me and drove on, on my own side of the road. I heard a bang. I then pulled the truck down to my right on to the opposite side of the road and hit the bank. The bang of impact. I am one hundred per cent sure I was on my own side of the road when the bang happened, which obviously was the impact. I am not saying that Alan Kavanagh came across the road at me. Before the impact I remember hitting the bank on my side of the road. It's a high bank. When I hit the bank I pulled down the steering to the right. It didn't cause me to lose control. The bang off the bank and the impact happened at nearly the same time. I was so much on my own side I was nearly scraping the bank."

2. Statement of evidence of Garda John O'Leary

14 He attended the accident scene and made a sketch map. On the sketch map he identifies fresh tear marks on the carriageway some three feet eight inches from the right hand side of the road viewed from the direction in which the respondent was travelling. From this he concludes that the point of impact was on a line drawn across the carriageway at this point. Some eight feet along the carriageway from this line in the direction in which the respondent was travelling the Citroen Saxo is shown with its rear imbedded in the ditch and on its correct side of the road. Again, viewed from the direction in which the respondent was travelling, he marks debris from the Citroen Saxo for a distance of some twenty six feet all situate close to the right verge of the road. Continuing in the same direction the MAN truck is shown with its front imbedded in the same ditch, that is, on its incorrect side of the road. The sketch map shows a tyre mark forty six feet in length commencing at the centre line of the road and continuing to the left front wheel of the truck which is imbedded in the ditch on its incorrect side of the road. In his statement he records that the road was damp: the tyre mark was not a skid or brake mark.

15 He noted a scuff mark on the ditch on the respondent's side of the road some thirty two feet before the line of impact again in the direction in which the respondent was travelling. He noted that the front tyre on the driver's side of the MAN truck was completely worn. At the scene of the accident the respondent gave the following account to Garda O'Leary:-

"I was travelling along the road, as I came round the bend there I just saw the car hit the car and swerved. I can't recollect whether I was on the wrong side or he was."

3. Statement of Garda Stuart O'Sullivan, Public Service Vehicle Inspector

16 Two statements were delivered by way of additional evidence, one relating to the MAN truck and the other to the Citroen Saxo. He inspected the MAN truck on the 10 ^th November 2004. It had heavy impact damage to the off-side front shearing the front axle spring mounting and rear of spring chassis mounting bolts. The off-side front tyre thread depth was one millimetre....