A man faces a retrial for careless driving causing the death of a road worker, writes Ann O'Loughlin.
Michael O'Shea (73), of Smithstown, Maynooth, Co Kildare, was convicted in 2014 at Naas Circuit Criminal Court after he pleaded not guilty to careless driving causing the death of Kevin O'Sullivan at Graiguesallagh, Ladychapel, Co Kildare, in January 2013.
The Supreme Court yesterday upheld an appeal by the DPP against a Court of Appeal finding over the issue of mental intent (mens rea) in the offence of careless driving causing death.
Mr O'Shea's car struck Mr O'Sullivan at Ladychapel, Co Kildare, in January 2013 when the workman was standing behind a JCB digger.
Mr O'Shea said he was unaware of the roadworks of the absence of any warning signage. He also said his vision had been limited because of strong morning sunlight in his eyes and he had slowed down for that reason.
He was disqualified from driving for four years, fined €5,000 and directed to resit a driver competency test.
He successfully appealed his conviction and the Court of Appeal directed a retrial.
The DPP then asked the Supreme Court to determine the issue at the centre of the appeal: whether the offence of careless driving causing death was an offence of strict liability.
The appeal court said mens rea was a necessary pre-requisite to establishing guilty in any indictable offence.
Even if the jury in the Circuit Court had been adequately charged, in general terms, in relation to mens rea in this case, the fact that the trial judge had elsewhere in his charge referring to "strict liability" of the offence meant this would have created a very real potential to confuse the jury, the appeal court said.
In her appeal to the Supreme Court, the DPP did not seek to stand over the the characterisation of the offence as being one of strict liability. The DPP said it was more accurate to speak of "fault" rather than "guilty mind" which carries a connotation of moral guilt.
Counsel for Mr O'Shea argued the Court of Appeal was correct.
In one of two judgments on behalf of a unanimous five-judge Supreme Court, Ms Justice Iseult O'Malley said while the Court of Appeal was correct in the result, it was mistaken in its analysis.
The appeal court did not recognise the offence of careless driving causing death occupied a defined position in a range of driving offences. In this respect, Ms Justice O'Malley said, it was perhaps unfortunate that the matter was no presented by reference to the overall context of the range of driving offences.
This may have contributed to the fact that the finding of the appeal court, as to mens rea, could result in the imposition of a higher requirement for careless driving causing death than exists for gross negligence manslaughter causing death, she said.
In a separate concurring judgment, Mr Justice Frank Clarke said there may be an intermediate category of offence between strict liability offences and those requiring mens rea.