A man accused of dangerous driving following an accident in which a motorcyclist lost his leg has been found not guilty by direction of the trial judge.
Ballyshannon resident David Lecky, 55, was left with life-altering injuries following the crash outside Carrigans in August, 2016.
Levi Morrison, a 29-year-old mechanic from Derry went on trial at Letterkenny Circuit Court this week in connection with the incident.
He pleaded not guilty to a charge of dangerous driving causing serious bodily harm to Mr Lecky at Dunmore, Carrigans, on August 17, 2016 but pleaded guilty to charges of driving without insurance and of failing to produce insurance on the same day.
Over the course of two days, evidence was heard about the events leading up to the incident and the subsequent investigation carried out by Gardai into the crash.
As well as civilian witnesses at the scene, evidence was heard from Gardai which suggested that Morrison had been speeding at the time of the crash.
However, at the start of the third day of the trial, Morrison’s barrister, Mr Colm Smyth, SC, asked for a direction in the case.
His application to Judge Aylmer, in the absence of the jury, suggested that the evidence was so tenuous that it could not reach a standard of proof beyond a reasonable doubt that a jury could convict the accused of dangerous driving.
Judge Aylmer considered the application and agreed that the evidence did not reach a standard that was safe to the put to a jury.
He recalled the jury of eight men and four women to explain his decision.
He said that the evidence was so tenuous and so thin that no jury charged by the judge and understanding the standard of proof beyond a reasonable doubt could ever convict the accused of dangerous driving or careless driving for that matter.
He added that the only evidence of speed was from one witness who had a momentary flash or glimpse of Mr Morrison’s car coming towards him and that it would be unsafe to allow the jury to entertain that possibility.
He concluded what he now had to do was to give the jury a direction to acquit on the direction of a trial judge to find Mr Morrison not guilty by direction of a trial judge.
The accused, of Tudor Court, Rosemount, Derry who had no previous convictions of any sort, had previously pleaded guilty to not having insurance and not producing insurance for the vehicle.
Judge Aylmer considered the evidence and said that as this was a first offence and that Morrison needed his license for work as a mechanic he would not disqualify him but fined him €500 for having no insurance.
During the trial the court was told that Morrison was driving an Audi A4, which he had purchased the previous day, when he collided with the Suzuki motorbike being driven by Mr Lecky. Morrison was driving the car from Derry to Carrigans as there was a ‘problem with it’.
Ms Fiona Crawford BL opened the case on behalf of the prosecution on Wednesday.
Garda Sergeant Gerry McCauley, a forensic collision investigator, gave evidence of attending the scene of the accident, which was a distance of around 1.4km from Carrigans village. Maps and photographs showing the scene were given to the jury.
The court heard that the motorcycle came to a rest on a grass verge following a head-on collision with a car.
Mr Lecky, aged 55 and of Ashbrooke Drive in Ballyshannon, told the trial that he has ‘no memory whatsoever of the collision’.
Mr Lecky said he has a ‘vague memory’ of leaving his home and taking his motorbike as his car was with a mechanic at the time.
“I remember going out the back door, but I have no memory of even getting onto the bike,” he said,
His first memory after waking from a coma in Galway Hospital was of being able to move his left arm ‘a wee bit’ but was unable to move anything else.
“The abiding memory is of the nursing staff coming around and putting a clip on my finger to take blood pressure,” Mr Lecky said. “I remember thinking it was a bit spiteful to put it on the one part of my body that I could move.”
Mr Lecky had his left leg amputated from the knee down in early 2017 described himself as ‘functionally a full-time wheelchair user’.
Witness Mr Aidan Donoghue, told the trial that he was working in the Donegal area and stayed in Ballybofey the previous night. He was traveling from the Inishleigh Co-Op to Donegal Meats in Carrigans. Mr Donoghue was driving a Mitsubishi Outlander and recalled how he was aware of a motorcyclist behind him. As he turned right for the meat factory, Mr Donoghue said he was still aware of the motorcyclist behind him and told the trial that he got the ‘impression’ of a car coming from the Derry direction at a high speed.
He recalled how he heard a bang after he turned down the road before returning to see that a collision occurred between a motorbike and a car. Mr Donoghue telephoned the emergency services and remained at the scene.
Morrison was represented in the case by Mr Colm Smyth SC and Mr Peter Nolan BL, instructed by solicitor Kieran O’Gorman.
Mr David Kelly, a friend of Morrison’s, was driving behind the accused man in a Transit van. Mr Kelly told Gardai that he was aware Morrison was taking the car back to Carrigans as it was overheating.
“I am not sure of the speed, but he wasn’t speeding,” Mr Kelly said in a statement read to the court by Ms Crawford. Mr Kelly recalled how Morrison had to ‘shoot to the wrong side of the road’ to avoid colliding with a silver car that was making a right turn. Mr Kelly recalled seeing ‘a big spray of car parts in the air’.
Mr Kelly told how he got out of his car and saw Mr Lecky on the road.
“I don’t think Levi could have done anything to avoid the crash.”
Ms Linda Callaghan came on the scene while she was making her way home to Killea. She recalled seeing a wheel spinning on the motorbike and Mr Lecky on the ground.
Noting that Mr Lecky was wearing a wedding ring, Ms Callaghan obtained a phone number from the injured man. Initially, Ms Callaghan feared that Mr Lecky was dead before she went over and knelt down beside him on the road.
Retired Garda Joseph McDonagh told the trial that he received a report of an accident shortly before 10am. When he arrived on the scene, there were other Gardai and a number of other people present.
“The impact looked very severe,” Mr McDonagh said. “The motorcycle was completely twisted.”
Mr McDonagh told the court that Morrison informed him at the scene that he wasn’t insured. Mr McDonagh retired from An Garda Siochana in October 2016 and his files were handed over to another member.
Garda Damian Mulkearns, a PSV inspector with the Donegal Garda Division, gave evidence of examining the Audi A4 and the Suzuki motorbike in August 2016.
There was heavy frontal damage to the Audi A4, with the bumper, radiator, bonnet, windscreen and roof smashed and both headlight assemblies were out of line.
The steering, suspension and braking systems were all in a serviceable condition pre-accident. Both airbags were deployed and there was evidence to indicate that a seatbelt was being worn by the driver at the time of impact.
Garda Mulkearns noted that the driver’s side rear tyre was ‘excessively worn’. Two tyres on the vehicle were stretched over the rims and Garda Mullkearns said there was an ‘imbalance’ in the tyres fitted to the vehicle.
In relation to the tyres stretched over the larger-diameter rim, Garda Mulkearns said this would put ‘added stresses’ on the strength of the tyre but did not necessarily reduce the level of grip the tyre has.
Overall, he said, the Audi A4 was in a serviceable condition pre-accident.
The Suzuki motorcycle was also heavily damaged. The front forks, brake disc, headlight, exhaust, fuel tank, handle bars and seat were all damaged.
The steering, suspension and braking systems were all in a serviceable condition while the rims and tyres were also in a good condition pre-accident.
Morrison told Gardai that he bought a car, paying 1500stg for it the day before hand. When he noticed that the car was overheating, he decided to return to the seller. Morrison said he intended to insure the car but, due to the overheating issue, did not.
Morrison estimated that he was travelling about 50 miles per hour.
“When I first saw the silver car, it was about 100 yards away. As I approached, he turned to the right and cut me off. I swerved to the right to avoiding hitting him. I didn’t see the bike at all until I hit it. I was only aware that I hit a bike, but I saw nothing else until I got out of the car. I didn’t know what to do. I was in shock. I saw the biker on the road.
“David tended to the biker. I stood there in shock. I remember David shouting to ask if anyone knew CPR.
“I am aware that there was an allegation of speeding made against me. I was not speeding. I drove normally within the speed limit.
In another statement, given to Gardai in October 2017, Morrison said he believed that the silver jeep was ‘stopped for a good long time’ before it ‘suddenly, without warning, crossed in front of me’ and he ‘took immediate avoidance action’.
Garda Sergeant Gerry McCauley, a forensic collision investigator, said the collision occurred in the northbound lane of the R236, which is governed by a speed limit of 80km/h.
The road surface was ‘very good, albeit wet’, when Sergeant McCauley arrived.
It was not possible to determine where the point of impact was on the date of the accident.
On inspection, Sergeant McCauley noted fresh tyre makes on the central white line, ranging in distance from 14.4m away from the mouth of the junction to 48.8m.
There was no basis for suggesting that these tyre marks were from the Audi A4, the court was told.
Sergeant McCauley said he viewed CCTV from a house on the road, 89m back from the accident. Having selected two points, one a large tree and the other a garden wall, and noting the speed of the system at 12 frames per second, he came to an estimation that the Audi A4 moved 27.7 metres per second – which worked out at 99.88km/h by his calculations. Sergeant McCauley said he added a 10 per cent margin of error.
He said this was not the speed of the car at the junction and the vehicle ‘could have slowed down’.
“We can’t deduce from the damage that either vehicle was travelling outside of the speed limit,” Sergeant McCauley said.
Mr Colm Smyth SC asked Sergeant McCauley if it was true that no-one could say what speed exactly the Audi A4 was travelling at and he agreed. “He was coming into a bend, so he could have eased up,” Sergeant McCauley said.
Mr Smyth said there was an ‘enormous unknown’ between the CCTV imagery and the actual incident.
After the judge’s decision to acquit, the court was told that there was also a civil aspect being pursued in a separate court.
At the end of the trial, Mr Morrison approached Mr Lecky and the men shook hands.