Court of Criminal Appeal dismisses appeal where jury discharge was wrongly sought after expert witness answer.

COURT OF CRIMINAL APPEAL

212/08

Finnegan J.

Budd J.

de Valera J.

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

.v.

GEAROID CLEARY

APPLICANT

Judgment of the Court delivered on the 7th day of December 2009 by Finnegan J.

The applicant was charged with and convicted on a single count of dangerous driving causing death contrary to section 53(1) (as

amended by section 51 of the Road Traffic Act 1968) and section 53(2)(a) (as amended by section 49(1)(f) of the Road Traffic Act

1994 and by section 23 of the Road Traffic Act 2002) of the Road Traffic Act 1961.

The particulars of the offence are that on 9th September 2006 at Ballysimon Road, Limerick, a public place, the applicant drove a

motor vehicle registration number 97 LK 5920 in a manner (including speed) which having regard to all the circumstances of the case,

(including the condition of the vehicle, the nature, condition and use of the place and the amount of traffic which then actually was

or might reasonably be expected then to be therein) was dangerous to the public and thereby caused the death of another person,

namely, Emma Woodland.

He seeks leave to appeal his conviction. The single ground of application relied upon is as follows:-

“The learned trial judge erred in law and in principle in failing to discharge the jury upon an application being made to him

by counsel for the applicant so to do arising from the cross-examination by counsel for the prosecution of an expert

witness called on behalf of the applicant and in particular a question put by counsel for the prosecution to the effect

that video footage shown earlier and replayed during the said cross-examination depicted two cars racing against a

background of an earlier ruling by the learned trial judge limiting the right of counsel for the prosecution to make

comment upon racing based upon the said video footage.”

The Facts

The case was opened by the prosecution on the following basis. The applicant was driving his white Honda Integra out of Limerick

city. He travelled along Ballysimon Road, past Limerick Prison. He was closely followed by another vehicle, a dark blue BMW. As the

cars approached the junction of Ballysimon Road and Fairgreen Road a Toyota Starlet emerged from their right hand side and

proceeded to cross the junction. The applicant’s Honda braked suddenly and the BMW collided with the rear of the same. The Honda

continued on for at least 35.5 metres and then collided with the Toyota Starlet. The impact was very severe causing the Toyota

Starlet to be driven for a distance into Fairgreen Road where it then struck the boundary wall of a house. The applicant’s Honda

continued on, struck a taxi on Fairgreen Road and then the rear end of the same struck and demolished the wall and gate pillar of a

house on Ballysimon Road. The prosecution’s case is that both the applicant’s Honda and the BMW were being driven too fast. As a

result of the collision between the applicant’s Honda and the Toyota Starlet, Emma Woodland who was a rear seat passenger in the

Toyota Starlet was injured and died as a result of her injuries.

The Racing Issue

The BMW was being driven by Roman Andreas. He was arrested at the scene and later interviewed by Gardai. In summary the

account which he gave at interview was that on the night in question he had taken drink. He was driving along William Street in

Limerick when he came across a white Honda. He did not know who was driving the Honda. Before passing Limerick Prison he was

driving behind the Honda. The Honda started to quicken and he too drove faster. He may have been doing more than one hundred

kilometres per hour. After the Prison the cars started racing and the speed increased. At the junction with Fairgreen Road they were

still racing. Approaching the junction to Fairgreen Road he saw the Honda slowing but did not see its brake lights come on. He applied

his brakes but could not stop and struck the rear of the Honda. The Honda went to its left and he drove straight on. The distance

travelled in the course of the “race” was about one and half kilometres. Mr Andreas pleaded guilty to the same offence as that with

which the applicant was charged. Mr Andreas did not give evidence at the trial and his statement which was included in the book of

evidence was not admissible in evidence.

The applicant also made a statement. As he drove along Mulgrave Street, and from there onwards along Ballysimon Road, the BMW

car was behind him and as he approached the junction with Fairgreen Road it was about thirty yards behind him. He saw the lights of

a car coming from his right. It was about half way across the road. He touched his brakes to allow the car to cross the road. His car

was hit from behind and spun round. Had he not been hit from behind he would not have hit the car that was crossing in front of him.

He admitted exceeding the speed limit by 20 kms per hour at most.

The prosecution relied on video evidence gathered from the CCTV system at Limerick Prison. The relevance and admissibility of the

same was disputed by the defence. Following a viewing of the video evidence and full argument the learned trial judge admitted the

video evidence: there is no challenge to this decision.

Counsel for the applicant then addressed the court as follows:-

“If that is Your Lordship’s ruling, certain consequences flow from that, My Lord. And Your Lordship in the course of the argument

has heard Mr O’Sullivan seek to raise certain claims, inferences that may be drawn from this footage. Such as, that it depicts these

vehicles being driven in tandem, whatever that means. Now in my respectful submission that, ought to be addressed by Your

Lordship in consequence of the ruling that Your Lordship has made and some degree of parameters ought to be put upon what Mr

Sullivan can say in relation to these matters. He has conceded to me that he cannot call any commentator or commentary in

relation to this. Therefore I am concerned lest he seeks to provide the commentary himself using the licence of a barrister to

address a jury.”

There followed a discussion between the learned trial judge and counsel which concluded as follows:-

“Mr O’Sullivan: What I propose to say My Lord is may be in more general terms that this video supports the prosecution

case.

Judge: The footage is so short that you really couldn’t say that they were racing in tandem or they were driving in

tandem or racing one another, certainly not racing one another.

Mr O’Sullivan: May it please Your Lordship. So the question then is what I will likely say to the jury about this video is

very general, probably a one line that I say it supports the prosecution.

Judge: Mr O’Sullivan is undertaking not to say that they were racing or driving in tandem.

Mr O’Sullivan: Yes certainly I don’t intend saying that.”

On Day 4 of the trial the video evidence was discussed with Mr Roels, an expert witness called on behalf of the applicant. In cross-

examination he was asked if it was clear from the video that the two cars shown in the video were travelling too fast and he replied

that he could not say. He accepted that they were travelling too close together. He was then asked:-

“Q. You have a lot of experience in this, and I am asking you as an expert, they look like they are racing.

I cannot make it out. They are following one another but that does not, I mean, I cannot say that they are racing.”

Counsel for the applicant then sought to have the jury discharged. He pointed out that the statement of Mr Andreas was not

admissible and indeed had not been sought to be admitted. By introducing the suggestion of racing into his cross-examination counsel

for the prosecution had sought to introduce improper material which was not admissible. Counsel for the prosecution made it clear

that his undertaking related only to his closing speech and made the point that when a witness is called by the defence he is

available for cross-examination. Counsel for the prosecution relied on a proposition drawn from Andrews & Hirst on criminal evidence,

4th edition page 196 paragraph 762 to the effect that the rules in respect of admissibility and relevance in cross-examination are

broadly speaking the same as those governing examination in chief. A defendant cannot be cross-examined by the prosecution on the

contents of an inadmissible confession. A witness cannot be cross-examined on the inadmissible hearsay statements of a third person.

It was submitted that what the prosecution sought to do was to introduce into the case the element of racing while the only

evidence within the Book of Evidence relating to the same was inadmissible. The learned trial judge ruling was as follows:-

“Well, I am not going to discharge the jury. Whatever about the propriety or not of the question, it would be

completely disproportionate. I don’t think irremediable damage has been done to the case, to the accused’s case.

I can’t discharge the jury. The matter – I can make reference to it in my closing address to the jury. I am inclined

to the view that it would probably be best in the interest of the defence for me to say nothing. Anyway that can

be discussed later. But I am not discharging the jury.”

The issue was not raised again during the course of the trial. Accordingly this court is concerned with the one question and the

answer to the same.

Submissions

There is no dispute about the circumstances of the accident which occurred and which have been recited above. On behalf of the

applicant it is submitted that the question objected to was not admissible. In the course of his ruling on the voir dire the trial judge

said that the video footage was of such a short duration that it was not possible to conclude that the vehicles depicted therein were

racing or were travelling in tandem and that there was no basis upon which it could be contended by the prosecution that the

applicant and Mr Andreas were racing. The question gave rise to grave and undue prejudice and ought not to have been asked: The

People (D.P.P.) v James Cole 2 Frewen 36. In the circumstances the learned trial judge ought to have discharged the jury. For the

respondent it is submitted the jury should only be discharged as a last resort: The People (D.P.P.) v Kenneth Cunningham,

unreported, Court of Criminal Appeal 24th May 2007, Dawson & Another v Irish Brokers Association referred to therein, The

People (Director of Public Prosecutions) v John Kavanagh, unreported, Court of Criminal Appeal 7th July 1997. It is not suggested

by the prosecution that the question was appropriate or admissible.

The sole issue accordingly for this court is whether in the circumstances the learned trial judge was correct in refusing the application

to discharge the jury.

Discussion

The decision on whether or not to discharge a jury is a matter within the discretion of the trial judge. The exercise of the discretion

will be interfered with on appeal only where there is a real and substantial risk of an unfair trial. On appeal regard will be had to all the

facts and circumstances of the trial. Relevant in this case is the circumstance that the learned trial judge at the time of the

application to discharge the jury had before him the entire prosecution case including the video evidence. He had also heard the

evidence of Mr Roels, the first of two witnesses called by the defence. The learned trial judge was thus in an excellent position to

evaluate the significance of what had occurred in the context of the trial as a whole. This court while it has not the benefit of seeing

and hearing the witnesses it nonetheless has a full transcript of the proceedings to assist it in evaluating the significance of the

question objected to in the context of the trial as whole in reviewing the exercise of his discretion by the learned trial judge.

In Dawson & Another v Irish Brokers Association, Supreme Court, 6th November 1998 O’Flaherty J. said:-

“Once again, it is necessary to reiterate, as this court is doing with increasing frequency, that the question of having a

jury discharged because something is said in opening a case or some inadmissible evidence gets in should be a remedy

of the last resort and only to be accomplished in the most extreme circumstances. Juries are much more robust and

conscientious than is often thought. They are quite capable of accepting a trial judge’s ruling that something is irrelevant

or should not have been given before them as well as in the face of adverse pre-trial publicity. See D. v Director of

Public Prosecutions [1994] 2 I.R. 465, Z. v Director of Public Prosecutions.”

In Director of Public Prosecutions v J.E.M. the trial judge ruled that evidence of an alleged conversation between a witness and the

accused would be admissible as to the accused’s demeanour, but a particular element or sentence, “at one stage he threatened to

kill me”, would have to be excluded. During the course of the trial the witness gave evidence that the accused had threatened to kill

her. The learned trial judge refused to discharge the jury. The Court of Criminal Appeal on reviewing the learned trial judge’s decision

and the authorities to which it was referred held that the decision of the learned trial judge was taken after consideration, with

reasons given, having analysed any prejudicial aspect of the matter. The court was satisfied in the circumstances of the case that

there was no basis upon which the court could interfere with the exercise of the judicial discretion.

The trial of the applicant extended over five days. No evidence was led by the prosecution to suggest that the applicant was racing

nor was the suggestion raised in opening or closing remarks of counsel nor in the charge of the learned trial judge. The video evidence

as described by the learned trial judge could not support a suggestion of racing. The appeal is concerned with a single question in the

course of a five day trial. The answer to the question was in the negative. The prosecution’s entire case was concerned with speed.

The question having been asked the learned trial judge was willing to redress the situation in his charge but was not required to do

so. The issues for determination by the jury were clearly dealt with in the trial judge’s charge and no objection is taken to the charge

on behalf of the applicant. The court has regard to the effect of the answer to the question by the expert witness being in the

negative. Having regard to the evidence, the facts and the circumstances of the trial as a whole the learned trial judge exercised his

discretion appropriately and refused to discharge the jury.

Having carefully considered the proceedings at the trial in their entirety this court is satisfied that the question, which ought not to

have been put to the witness, and the answer to the same did not create a real and substantial risk of an unfair trial and did not

prejudice the applicant. Accordingly this court should not interfere with the exercise by the learned trial judge of his discretion.

Disposition

The court refuses the applicant leave to appeal against his conviction.