DPP -v- Gearoid Cleary
Court of Criminal Appeal
Judgment was given by Mr Justice Finnegan on December 7th, 2009, sitting with Mr Justice Budd and Mr Justice de Valera.
Judgment
Leave to appeal against a conviction for dangerous driving causing death was refused to a man who had argued that the trial judge should have discharged the jury following evidence being given of a claim that the defendant had been racing at the time of the accident.
Background
The accident took place on September 9th, 2006, when the applicant, Gearoid Cleary, was driving his white Honda Integra out of Limerick city. His car was closely followed by a BMW, driven by a man called Roman Andreas. The latter later told gardaí he had taken drink that night and had been driving behind the Honda, and when it speeded up he did likewise. He told gardaí they had been racing.
As the cars approached a junction a Toyota Starlet emerged from the right and proceeded to cross the junction. The applicant slowed down, but the driver of the BMW did not see his brake lights and collided with his Honda, which drove into the Starlet, causing it to hit the boundary wall of a house. Emma Woodland, a passenger in the car, was fatally injured.
It was the prosecution case that both the Honda and the BMW had been driven too fast. Mr Andreas pleaded guilty to the charge of dangerous driving causing death. His statement was not admissible in evidence against Mr Cleary.
Mr Cleary admitted exceeding the speed limit by 20km an hour at most.
Video evidence was gathered from the CCTV system at nearby Limerick Prison, which, after legal argument, was admitted in evidence. After discussion between counsel and the judge, it was agreed that counsel for the prosecution would not make reference to the suggestion that the cars were racing, and the judge said that the clip was too short to demonstrate this.
An expert witness was called on behalf of the applicant to discuss the video evidence. Counsel asked him whether the cars looked as if they were racing. He replied that he could not say they were racing.
Counsel for the applicant then asked that the jury be discharged, saying that the prosecution was seeking to introduce material that was ruled inadmissible.
The trial judge refused, on the grounds that this would be disproportionate.
The issue before the Court of Criminal Appeal was whether the trial judge was correct in refusing to discharge the jury.
Decision
Mr Justice Finnegan said that the exercise of the discretion of the trial judge would only be interfered with where there was a real and substantial risk of an unfair trial.
He said the trial of the applicant had lasted over five days. No evidence was led by the prosecution to suggest that the applicant was racing, and the video evidence could not support it. The appeal was concerned with the answer to a single question in the course of a five-day trial, and the answer to the question was in the negative.
The judge was willing to redress the matter in his charge to the jury, but was not required to do so. He exercised his discretion appropriately and refused to discharge the jury.
Having carefully considered the proceedings at the trial in their entirety the court was satisfied that the question, which should not have been put, and the answer to it, did not create a real and substantial risk of an unfair trial and did not prejudice the applicant. Accordingly, it refused leave to appeal.
The full judgment is on www.courts.ie.
Anthony Sammon SC and Brian McInerney BL, instructed by O’Neill Co, Limerick, for the appellant; John O’Sullivan BL, instructed by the Chief Prosecution Solicitor, for the DPP