The Supreme Court has prohibited further prosecution of Liam Toohey on a charge concerning an allegedly excessively worn truck tyre, but has allowed dangerous-driving charges arising from a serious 2004 crash in Co Wexford to proceed.
In a judgment delivered by Mr Justice Finnegan on 3 December 2008, the court affirmed the High Court order prohibiting the tyre charge. It found a real risk of an unfair trial because the tyre had not been preserved for inspection, denying the defence access to an expert witness who could examine it. The court said preserving the tyre was reasonable, practicable and necessary in the circumstances, and followed the approach in an earlier Supreme Court case, Ludlow v Director of Public Prosecutions.
The charges stemmed from a collision at Dunmain on 9 November 2004 between a MAN truck driven by Toohey and a Citroen Saxo. The car’s driver sustained serious injuries. Toohey faced charges of dangerous driving causing serious bodily harm, dangerous driving, and using a vehicle with an excessively worn right-front tyre.
The truck was returned to its owner the day after the crash and repaired shortly afterwards. The allegedly defective tyre was replaced and was no longer available for inspection. The prosecution evidence described in the judgment included Toohey’s statements and Garda John O’Leary’s account of marks, debris and vehicle positions at the scene. The prosecution case was that the truck crossed onto the wrong side of the road.
On appeal, the prosecution undertook not to rely on the vehicle inspector’s evidence about truck damage or on truck photographs for the dangerous-driving charges. The inspector would still give evidence on the separate tyre charge, which was to be heard alongside the other charges. The prosecution also would not present an expert reconstruction of the crash.
The Supreme Court distinguished the dangerous-driving charges from the tyre charge. It concluded that, without expert reconstruction evidence, Toohey had not shown a real risk of an unfair trial on the dangerous-driving charges because the truck was unavailable for his expert to examine. It therefore allowed the appeal on those charges and set aside the High Court order prohibiting their further prosecution. The ruling concerned whether the prosecutions could continue; it did not determine guilt on any charge.