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Court Case Cork farmer will not be prosecuted again over death of boy who fell from tractor

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The farmer will not face another prosecution (stock photo)

The farmer will not face another prosecution (stock photo)

The farmer will not face another prosecution (stock photo)

A Cork farmer will not be prosecuted for a second time over the death of a boy who fell from his defective tractor seven years ago, after the Court of Appeal overturned an earlier ruling that the trial could proceed.

Fourteen-year-old Micheál Murphy was killed when he fell out of the passenger door of a tractor being driven by an employee of the appellant, Mr George Ross.

The lock was broken and the door was being kept shut with plastic cable ties when the fatal incident happened on August 23, 2013 at Knocknacullota, Killavullen, Co Cork.

Mr Ross, of Convamore, Ballyhooly, Co Cork, was convicted under the Road Traffic Act and fined €700 by Mallow District Court in October 2014, for allowing the tractor to be driven when it was a danger to the public.

Last year, however, the High Court had ruled that the Health and Safety Authority (HSA) could also proceed with another prosecution against Mr Ross over the 14-year-old’s death.

The 68-year-old on Wednesday successfully challenged the separate, second prosecution of him by the HSA in the Court of Appeal.

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The farmer will not face another prosecution (stock photo)

The farmer will not face another prosecution (stock photo)

The farmer will not face another prosecution (stock photo)

Mr Ross will now not have to come before Cork Circuit Criminal Court under the Safety Health and Welfare at Work Act, on grounds that the tractor was an unsafe place to work. It is an indictable offence, which carries a maximum fine of €3m and a two-year prison sentence.

Mr Ross successfully claimed that he should not be prosecuted a second time for what he says is substantially the same offence. He also argued that there was a delay in bringing a prosecution and that the two offences being tried sequentially over a period of years amounted to an abuse of process

In her judgement, Ms Justice Aileen Donnelly said that a legal issue arose because of the commencement of the HSA prosecution, despite the fact that Mr Ross had been convicted for a Road Traffic Act offence three years earlier in 2014, relating to the same fatal incident.

Ruling judge Ms Justice Aileen Donnelly criticised the seven-year gap between the death and the ultimate decision on whether the prosecution could occur, which she said "does not reflect well on this State".

"No family should have to wait that long before a final decision on whether a prosecution arising out of the death of their son can occur," Ms Justice Donnelly said, before adding that the investigating and prosecuting arms of the State appear to have given "little thought" to the interests of the victim’s family.

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 Ms Justice Aileen Donnelly

Ms Justice Aileen Donnelly

Collins Courts

Ms Justice Aileen Donnelly

The High Court had ruled that, though the two offences arose out of the same set of circumstances, they were not the same offences nor substantially the same and that there was no basis for a prohibition of a second trial as it was not an abuse of process.

However, in her written judgement returned on Wednesday, Ms Justice Donnelly said she was satisfied that no special circumstances arose in the case which would justify the decision to embark on a process which would have led to sequential prosecutions.

The High Court heard that the HSA got possession of the tractor after the original District Court prosecution for the road traffic offence and that an examination of the tractor yielded different evidence to satisfy a new workplace charge from the HSA.

Ms Justice Donnelly said it was clear that both the High Court judge and the DPP relied heavily on the fact that the evidence regarding the lock on the door was only available to the HSA after the District Court prosecution ended.

"In his judgement, the [High Court] judge makes a clear error in holding that the State only received possession of the tractor after the District Court hearing. The DPP accepts that An Garda Síochána and the HSA are both emanations of the State and submits it was clear from the context that what the (High Court) judge was dealing with was the HSA getting possession of the tractor," said Ms Justice Donnelly.

"Thereafter, the DPP relies upon the fact that there is credible evidence to support the finding that additional evidence only came to light after the HSA got possession of the tractor," she said.

"In my view, the DPP's submission highlights a major defect in the DPP's response to the prosecution, to the [High Court] judicial review and to this appeal. The DPP was entirely responsible for both prosecutions. Although the DPP is not the investigating agency, the DPP, as prosecutor, bears the ultimate responsibility, in so far as the actions of the investigations have an impact of the prosecution. In that particular sense, the DPP embodies the State's responsibility to the accused and to the victim in a criminal prosecution," said Ms Justice Donnelly.

She added that the Court of Appeal had not been given any information about when and where the DPP became involved and what consideration had been given to "sequential prosecutions" causing a delay or abuse of process.

Ms Justice Donnelly said that no affidavit had been supplied by An Garda Síochána explaining why it was not possible for the HSA to carry out their examination of the tractor prior to the District Court case.

The judge said: "The end result of this is that the DPP has not put before this court any evidence as to why there was a sequential investigation, which inevitably means a sequential prosecution."

Ms Justice Donnelly said it was "difficult to construct a coherent legal argument as to why a more detailed forensic examination could not also take place by the HSA while the tractor was in the possession of An Garda Síochána", adding that the HSA had been involved in investigating the fatal incident within three days of it occurring.

The fact that Garda involvement took precedence and that the HSA could only start their investigation after the conclusion of the District Court case meant that charges could only occur in sequential fashion was a "very disquieting policy", she said.

The DPP had submitted that when the death of an individual occurs, there was a public interest in prosecuting the matter.

"There is, of course, a considerable public interest in ensuring that cases involving the deaths of individuals, especially a child, are fully investigated and prosecuted," said Ms Justice Donnelly.

"In this case, there seems to have been no consideration by either the HSA or the DPP of that aspect of the public interest when making the decision to stall the investigation into what may have been more serious offences or to ensure that the prosecution was brought at the most appropriate, earliest consideration."

Ms Justice Donnelly noted that the three-year delay for the HSA to send a file to the DPP in 2017 was caused by what an HSA inspector had described as "a significant lack of resources in the Legal Unit of the HSA".

Allowing the appeal, Ms Justice Donnelly said that special circumstances pointed to by the DPP were insufficient to justify sequential prosecutions in the case.

Regarding the absence of an explanation for the an apparent policy of sequential investigations due to one authority, An Garda Síochána, not giving access to another, the HSA, she said: "It has not been shown to be just or appropriate to have opted to have serial investigations resulting in serial prosecutions."

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