Supreme Court dismisses appeal where prosecution's exculpatory evidence was deemed peripheral to the substantial issue of dangerous driving.

Murphy J.

Hardiman J.

Geoghegan J.

278/96

THE SUPREME COURT

BETWEEN/

MARY SWAINE

Applicant/Appellant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS AND HIS HONOUR JUDGE DIARMUID SHERIDAN

Respondents

JUDGMENT of Mr. Justice Geoghegan delivered the 26th day of April 2002

This is an appeal from an order of the High Court (Costello P.) refusing an order of certiorari 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 of certiorari 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 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.

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.

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.

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:

"Having satisfied herself that the cyclists had observed her indicator and were aware of her intentions, which view was

reinforced by the fact that the first cyclist had turned to her left, she proceeded to turn into the mouth of the junction,

whereupon the second cyclist crashed into her motor vehicle."

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.

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.

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.

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.

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.

I would dismiss the appeal.