Toohey v Director of Publis Prosecutions

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 17 January 2007
• Neutral Citation: [2007] IEHC 64
• Court: High Court
• Date: 17 January 2007

[2007] IEHC 64

THE HIGH COURT

[No. 1378 JR/2005]

Toohey v DPP & Judges of the Circuit Court

JUDICIAL REVIEW

BETWEEN

LIAM TOOHEY

APPLICANT

and

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

RESPONDENTS

C (D) v DPP 2005 4 IR 281 2006 1 ILRM 348 2005/8/1599 2005 IESC 77

Z v DPP 1994 2 IR 476 1994 2 ILRM 497 1994/7/1980

BOWES & MCGRATH v DPP 2003 2 IR 25 2003/6/1129

DUNNE v DPP 2002 2 IR 305 2002 2 ILRM 241 2002/7/1645

SCULLY v DPP UNREP KEARNS 21.11.2003 2003/47/11429

MITCHELL v DPP 2000 2 ILRM 396

MCFARLANE v DPP & SPECIAL CRIMINAL COURT UNREP SUPREME 7.3.2006 2006/35/7440 2006 IESC 11

ROAD TRAFFIC ACT 1961 S53

RSC O.84

DE ROISTE v MIN FOR DEFENCE & ORS 2001 1 IR 190 2001 2 ILRM 241 2001 ELR 33 2001/6/1371

MCGRATH EVIDENCE 2004 691

LUDLOW v DPP & JUDGE O'SHEA UNREP DUNNE 16.7.2005 2005/36/7573 2005 IEHC 299

MCGRATH v DPP 2003 2 IR 25

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(B)

ART 26 OF THE CONSTITUTION & S5 & S10 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, IN RE 2000 2 IR 360 2000/11/4122

HOME OFFICE REPORT IRAN 2005 (UK) S6.61

HOME OFFICE REPORT IRAN 2005 (UK) S6.65

HOME OFFICE REPORT IRAN 2005 (UK) S6.64

HOME OFFICE REPORT IRAN 2005 (UK) S6.67

HOME OFFICE REPORT IRAN 2005 (UK) S6.68

HOME OFFICE REPORT IRAN 2005 (UK) S6.62

HOME OFFICE REPORT IRAN 2005 (UK) S6.63

HOME OFFICE REPORT IRAN 2005 (UK) S6.66

CECODA REPORT ON THE MISSION TO IRAN 2002

REFUGEE ACT 1996 S2

Abstract:

Criminal law - Judicial review - Delay - Prejudice - Preservation of evidence - Truck not available for inspection - Whether unfair and in breach of the rights of the accused

Facts: Charges were brought against the applicant lorry driver in the aftermath of a road traffic accident that took place which he had no knowledge or memory of. The applicant sought to examine a wreck of a car involved and the vehicle the applicant was driving in the accident. The latter was unavailable and as a result the applicant sought to prohibit the trial.

Held by Charleton J. that the trial of the applicant would be prohibited. A reasonable opportunity was required to allow an expert for the defence to examine the vehicles. The duty on the investigating and prosecuting authorities had to be to create circumstances where an inspection would become possible. The defence had to cooperate fully

Reporter: E.F.

Prohibition

1 1. The jurisdiction of the High Court to prohibit a criminal trial should be exercised with great caution. An application for that remedy should succeed only in exceptional circumstances. The constitutional scheme for the disposal of criminal business contemplates that the prosecuting authority, in virtually all cases the Director of Public Prosecutions, should be trusted to make a decision as to whether to commence a prosecution against an individual. Apart from the rights of the accused, the entire community is injured by the commission of any criminal offence. The people of Ireland, therefore, as well as having prosecutions in indictable crime brought in their name, also have an interest in the disposal of criminal trials in a fair and rational manner. In serious cases it is for a jury of 12 peers of the accused to decide whether there is sufficient evidence to prove, beyond reasonable doubt, the guilt alleged as to the commission of a criminal offence. Dealing with the duty of the High Court to exercise the remedy of prohibition sparingly in this context, Denham J. in D.C. v. DPP [2005] IESC 77, November 21st, 2005, said:-

"However, bearing in mind the duty of the courts to protect the constitutional rights of all persons, in exceptional circumstances the court will intervene and prohibit a trial. In general such a step is not necessary as the trial judge maintains at all times the duty to ensure due process and a fair trial. The basic assumption to apply in relation to all pending trials is that they will be conducted fairly, under the presiding judge. However, in circumstances where there is a real or serious risk of an unfair trial the courts will intervene so that a defendant may not be exposed to the commencement of the process, it being the assumption that should such a trial commence it will be stopped by the direction of the trial judge because of the real or serious risk of an unfair trial… Such a jurisdiction to intervene does not apply where the applicant has minutely parsed and analysed the proposed evidence and sought to identify an area merely of difficulty or complexity. The test for this Court is whether there is a real risk that by reason of the particular circumstances that the applicant could not obtain a fair trial."

2 2. In this regard, the Supreme Court has made it clear that the onus of proving that a trial, should it occur in the circumstances complained of in judicial review, will be unfair rests upon the applicant; Z. v. DPP [1994] 2 I.R. 476 at 506, Bowes v. DPP [2003] 2 I.R. 25 at 35. Further, the full test to be applied is whether the risk of an unfair trial would prevail despite appropriate rulings and directions by the trial judge; D.C. v. DPP [2005] IESC 77. In the context of giving the appropriate test an interpretation which meets the demands of an ordered society, Hardiman J. explained in Dunne v. DPP [2002] 2 I.R. 305, that when it comes to a duty of preserving evidence or, I would infer, discovering whether the absence of evidence that once existed, for example through the death of a witness, has the result of creating the risk of an unfair trial that "no remote theoretical or fanciful possibility" should lead to the prohibition of a trial. Consequently, the duty of the High Court in considering an application for prohibition is to consider whether the burden of proof has been discharged by the applicant in accordance with this test; Scully v. DPP (Unreported, High Court, November 21st, 2003), Mitchell v. DPP [2002] 2 I.L.R.M. 396. Hardiman J. summarised this issue in McFarlane v. DPP [2006] IESC 11 when he said:-

"In order to demonstrate that [there is a risk of an unfair trial] there is obviously a need for the applicant to engage in a specific way with the evidence actually available so as to make the risk apparent. A failure to do this was the basis of the failure of the applicant in Scully [2005] 1 I.R. 242. This is not a burdensome onus of proof: what is in question, after all, is the demonstration of a real risk, as opposed to an established certainty, or even probability of an unfair trial."

The Evidence

3 3. In this case a horrific road accident took place between a lorry and a car on 9th November, 2004, at Campile in Wexford. In consequence of it, three charges were brought against the applicant, who was driving the lorry, of dangerous driving causing serious harm contrary to s. 53 of the Road Traffic Act, 1961, as amended, of simple dangerous driving and of driving a vehicle with a worn tyre. The photographs taken in the aftermath of the incident, and the relevant Garda sketch map, would appear to show that the lorry driven by the applicant ended up on the wrong side of the road and crashed into a ditch. It is doubtless that Alan Kavanagh, the driver of a family car, was very seriously injured and had to be cut from his vehicle, which on the photographic evidence, was a mangled wreck. He and his daughter were immediately removed by ambulance to hospital. It would seem that within days of the accident, the lorry that the applicant was driving was returned to his employer, on whose behalf he was driving it, and was then extensively repaired involving at least the replacement of its front portion and the replacement of tyres. The accused was arrested on 30th November, 2004 and a cautioned statement was taken from him. During the course of other interviews in Garda custody he either exercised his right to silence or gave non-committal answers. The charges were laid in April, 2005 and a book of evidence was served the following month. On 22nd September, 2005, a statement from a public services vehicle inspector was served on the accused. (That Garda is the expert from within An Garda Síochána who is trained to examine vehicles with a view to the interpretation of their condition relevant to possible civil or criminal trials.) Photographs were served that same month and the case was listed for trial on 4th October, 2005, at Wexford. It was in or around that time, apparently, that the solicitor on behalf of the applicant thought of having the vehicle in which the applicant was driving examined. He also sought to examine the wreck of Mr. Kavanagh's car. The latter was available but the former was not. It was submitted in argument, reasonably I think, that whereas one might find out from the garage which repaired the lorry some information as to what needed to be done to it to make it roadworthy again, their focus would have been on the reinstatement of the vehicle as a working lorry and that they would have had neither the competence nor the inclination to notice items of evidence that could be of use in establishing a defence by the accused.

4 4. The entire book of evidence was opened to me, as were the exhibits. Mr. Kavanagh has no recollection of how the accident occurred and his daughter is not listed as a witness. The Garda sketch shows an apparent skid mark from one of the front wheels of the lorry, in fact the one alleged to be bald, going from the applicant's correct side of the road and over on to the wrong side of the road. The applicant in his statement claims no knowledge of how the accident occurred apart from the fact that he felt a collision with the bank on his own side of the road and, following that, claimed only to notice a glancing blow by the car. When, or how, or even if, he went out of control is left un-stated. Such is his apparent answer to the...