Supreme Court of Ireland Decisions

1. 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.

2. 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:

3. 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.

4. 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:

5. 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.

6. 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 drive on but she formed the view that the mother " must have changed her mind and decided to turn right on to the Killavilla Road." She then witnessed the crash but she did not give any particulars in her statement as to which guard was ahead of the other.

7. Finally, the prosecuting solicitor who in the District Court was Mr. Houlihan, the State Solicitor for Co. Offaly, would have had a statement from another independent witness, Sean Walsh, which is the statement that has ultimately given rise to these proceedings. Mr. Walsh explained in his statement that he was driving a truck on the side road heading for the main Roscrea/Portlaoise road and indicating to turn left for Portlaoise. He was a short distance from the main road when he noticed a garda driving a motor cycle past the junction and the next thing he saw was a second garda flying through the air and landing some distance from the junction. The statement went on to explain that when Mr. Walsh got closer to the junction he stopped and at that stage a car was just coming to a halt after going in a circle. He saw a woman in the driving seat and a man as the front passenger.

8. For the original District Court hearing each of these witnesses received witness summonses for an adjourned hearing of the case on the 24th of June, 1993. Following on such service the Defence indicated that they required a further adjournment and each of the witnesses were notified they need not attend on that date. At that stage the State Solicitor, Mr. Houlihan, reviewed the case and decided that Mr. Walsh was not a necessary witness for the ultimate hearing in July, 1993. He thought that there were sufficient witnesses who were " closer at hand ". Mr. Houlihan's decision at that stage not to require Mr. Walsh as a witness was in my view entirely reasonable and, indeed, I do not think that this is disputed by the appellant. Furthermore, I do not believe it could have occurred to Mr. Houlihan that there was any material conflict between the statement of Mr. Walsh and the history of the accident given by the two relevant gardaí and the other witnesses on trial. It is true, of course, that Mr. Walsh in his statement indicated that the guard who was not injured had passed the junction first. This slight variance with the other accounts would not have reasonably led Mr. Houlihan into thinking that he was a significant witness.

9. The case duly proceeded in the District Court without the evidence of Mr. Walsh and the appellant was convicted by Judge Martin. It did emerge at the hearing that the appellant and her father were alleging that at the time of the accident the appellant's car was stopped in the centre of the road, that Garda Galvin passed it on its left without difficulty ahead of Garda Cullen and that there was no reason why Garda Cullen could not have passed in safety in the same way. However, while this would have been the submission of Mr. John Phelan, S.C. who appeared in both courts for the appellant it is important to examine very carefully what Mr. Phelan says in his own affidavit with a view to assessing whether even on his own case such a submission was justified. In paragraph 4 of his affidavit Mr. Phelan sets out what were his instructions at the pre-trial consultation. This is somewhat unusual but I assume that the purpose of it was to indicate the kind of case that Mr. Phelan would then have made in cross-examination given that there would be no transcript of the District Court proceedings. It was apparently part of Mr. Phelan's instructions that the appellant and her father " were travelling together with a view to picking up the applicant's daughter, who was at that time doing a course in Roscrea town." Mr. Phelan was instructed that as they approached the actual locus of the accident the appellant noticed that her daughter was walking from the Roscrea direction towards the direction from which the appellant was driving. The appellant told Mr. Phelan that on observing her daughter she " decided to turn right into the mouth of a bye-road with a view to doing a U turn in the mouth of the said bye-road so that she could collect her daughter and return to Borris-in-Ossory from whence she had come." The appellant then instructed Mr. Phelan that " with that view in mind she occupied a central position on the roadway, looked in her mirror, and observed that there were two motor cyclists some distance away from her, coming up from the rear." She said that she then turned on her indicator to indicate that she intended turning right whereupon one of the cyclists moved to the left and passed her by. She then gave the following instruction to Mr. Phelan which if it subsequently, as I assume it did, represented her evidence would have led to her conviction for dangerous driving irrespective of which garda passed first. She told Mr. Phelan the following:

10. Whatever kind of manoeuvre the appellant was doing this clearly indicates that she only considered it safe to complete the manoeuvre when she formed the view that both cyclists must have seen her indicator and she arrived at the conclusion that both had seen the indicator once one had passed her with safety.

11. It is not suggested that the evidence was any different from the instructions and it would seem to me to defy credibility to suggest that the accident happened independently of her manoeuvres and without fault on her part. Such fault in that context would clearly constitute dangerous driving. I will be returning to the statement of Mr. Walsh but I would just say at this stage that in my view it is absurd to suggest that his evidence could have led to an acquittal.

12. Before I return to his evidence, however, it is necessary to analyse further the affidavit of Mr. Phelan. Mr. Phelan alleges that the evidence of the passenger, Mr. Kieran Mahoney, was in total conflict with the evidence of his driver, Mr. William Fletcher. This is because according to Mr. Phelan Mr. Fletcher said that he and his passengers noticed a car " which appeared to be stopped in the middle of the roadway" and that he then went on to say " that one motor cycle appeared to avoid the car and went in off the left side but that the second motor cycle collided with the car." Mr. Phelan then says that evidence of the passenger, Kieran Mahoney "was completely different in so far as he gave evidence to the effect that he noticed the applicant's car parked on the left hand side of the road and he confirmed that the car moved from the left across to the right, directly into the path of the injured garda". Mr. Phelan, however, does not suggest that there was any conflict between the evidence which Mr. Fletcher and Mr. Mahoney gave in the District Court and what they had said respectively in their statements to the guards. Mr. Houlihan in a supplemental affidavit and commenting on Mr. Phelan's affidavit says that as far as he could recall those witnesses gave evidence consistent with their statements. If that is so I agree with Mr. Houlihan's comment in the supplemental affidavit that Mr. O'Mahoney's account coincided with that of the two garda witnesses and I also agree with Mr. Houlihan's view that Mr. Fletcher's evidence is not inconsistent. At most from the appellant's point of view it may mean that he did not observe the appellant's car moving out from the left hand side of the road. Mr. Houlihan points out that at no stage did Mr. Fletcher say that the motor cycle which passed the appellant's car was travelling ahead of the motor cycle which was involved in the collision. Certainly, if his evidence in the District Court was similar to his statement (and I see no reason to doubt that) I agree with Mr. Houlihan that Mr. Phelan's characterisation of Mr. Fletcher's evidence as having been completely different to the evidence of Mr. Mahoney is not justified.

13. The scene now moves to the Circuit Court and the hearing of the District Court appeal. The prosecution on the appeal was conducted by Mr. Patrick F. Treacy, the State Solicitor for Co. Tipperary (North Riding) and not by Mr. Houlihan. On the date of the Circuit Court hearing this appeal was one of approximately twenty five appeals which Mr. Treacy had to conduct. Mr. Treacy had before him a list of the witnesses called in the District Court. It was suggested by counsel for the appellant at the hearing of this judicial review that it was a systems defect that Mr. Treacy would not have had before him all the original statements and would not have had to reconsider what witnesses should be called presumably on the basis of some report of what happened in the District Court. Although it may be unusual for two different State Solicitors for different counties to conduct the District Court prosecution and the appeal in the Circuit Court respectively, it is perfectly normal to have separate prosecutors. Presumably, as this was a case directly involving the gardaí it would not have been thought appropriate for a superintendent or inspector to conduct the prosecution in the District Court as might frequently be the case. On the other hand the appeal to the Circuit Court would always be conducted by the State Solicitor. I think that it is farfetched and certainly a counsel of perfection that the State Solicitor conducting the District Court appeal is expected to trawl through all statements which were originally taken with a view to considering whether one or more extra witnesses should be required on the appeal in circumstances where, of course, a conviction had been obtained in the District Court. It could be argued that after the hearing in the District Court the prosecutor should make a note of what transpired to the best of his or her recollection so that that report would be available on the appeal. Even if that had happened in this case, I doubt very much that Mr. Houlihan would have mentioned at all any ambiguity as to which guard passed first and I do not believe that he would have made any reference to his not calling Mr. Walsh. I say this, because as I see it, on any view of the facts it was the appellant's manoeuvre that caused the collision. I, therefore, agree with the view of the former President that the evidence of Mr. Walsh was peripheral. Like the President, I accept the view of the law adopted by Laffoy J. in Maher v. Judge O'Donnell [1995] 3 I.R. 530 and although in my opinion it does not directly arise in this case, I see no reason to believe that the law is any different in this jurisdiction from that applicable to England as enunciated by Lawton L.J. in R. v. Hennessy (1978) 68 Cr. App. R. 419, 426 as approved by the English Court of Appeal in R. v. Ward [1993] 1 WLR 619. 645. This is not a case where evidence material to the substantial issues was either deliberately or accidentally suppressed or not made available. The modern jurisprudence of the Irish courts permits a defendant facing a summary trial to apply to the judge if necessary to obtain statements from the guards if fair procedures require their production. That jurisprudence was not as fully developed at the time of this case as it is now and indeed most of the cases relate to the summary trial of indictable offences. I would accept that quite independently of those rights on the part of a defendant there is always a duty on the prosecution not to hold back material evidence that would be helpful to a defendant but the parameters and extent of that duty may be different in a summary prosecution of which there are hundreds every day of the week and in which there is a right of appeal by way of re-hearing on the one hand and a serious prosecution upon indictment on the other hand. The circumstances in which this principle is being invoked here are very unusual and I do not find it necessary to express a view on what exactly would have been Mr. Treacy's or more accurately the State's (in the abstract sense) duty on the District Court appeal if in fact Mr. Walsh's evidence was seriously material. It may well be that even though the appellant had not asked for statements originally the conviction might have to be quashed by this court on certiorari as a matter of justice. But that is for another case. I do not think it arises here. Put shortly, I think it inconceivable that the evidence of Mr. Walsh if he had been heard in the Circuit Court would have led to an acquittal.

14. I have deliberately not referred to the controversy as to whether the Circuit Court judge expressly requested that he have all the evidence before him. I think that it is irrelevant. Criminal cases in Ireland are heard on the adversarial and not inquisitorial system. The State would be bound to produce the material evidence irrespective of what remarks the judge might have made.

15. I would dismiss the appeal.