The Court of Criminal Appeal has refused Gearoid Cleary leave to appeal his conviction for dangerous driving causing death, ruling that a prosecutor’s question about whether two cars appeared to be racing did not make his trial unfair.
The judgment, delivered by Finnegan J. on 7 December 2009, concerned a single complaint about the trial judge’s refusal to discharge the jury. Cleary argued that the prosecutor’s question improperly raised racing, despite an earlier undertaking not to suggest that the cars were racing or travelling in tandem. The appeal court refused leave; it did not set aside the conviction.
The prosecution case was that Cleary’s Honda and a BMW driven by Roman Andreas were travelling too fast on Ballysimon Road, Limerick, on 9 September 2006. The Honda collided with a Toyota Starlet at the junction with Fairgreen Road. Emma Woodland, a rear-seat passenger in the Toyota, died from her injuries. The source says the circumstances of the accident were not disputed in the appeal.
Andreas had told gardaí that the two cars raced, but he did not testify at Cleary’s trial and his statement was not admitted in evidence. Cleary’s account was that the BMW struck his car from behind as he braked for the Toyota. He said he would not have hit the Toyota if his car had not been struck, and admitted exceeding the speed limit by up to 20 kilometres per hour.
The trial judge admitted prison CCTV footage after hearing argument. He later undertook not to describe the footage as showing racing or tandem driving, saying it was too short to support that conclusion. During cross-examination of defence expert Mr Roels, the prosecutor asked whether the two cars looked as if they were racing. Roels replied that he could not say they were racing, though he accepted they were travelling too close together.
The trial judge declined to discharge the jury, describing that remedy as disproportionate and saying he did not consider the damage to Cleary’s case irremediable. On appeal, the court said the question ought not to have been asked, but considered the trial as a whole: the trial lasted five days, racing was not advanced elsewhere by the prosecution, and the expert’s answer was negative. It concluded the exchange created no real and substantial risk of an unfair trial and did not prejudice Cleary. The court therefore declined to interfere with the trial judge’s discretion and refused leave to appeal.