Agrama v Min for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 30 October 2009
• Neutral Citation: [2009] IEHC 476
• Docket Number: Record Number: No. 397JR/2008
• Court: High Court
• Date: 30 October 2009

Agrama v Min for Justice & Ors

Between:

Frank Agrama

Applicant

And

The Minister for Justice, Equality and Law Reform, District Judge Catherine Murphy, and District Judge Bridget Reilly

Respondents

[2009] IEHC 476

Record Number: No. 397JR/2008

THE HIGH COURT

PRACTICE & PROCEDURE

Discovery

Relevant and necessary - Judicial review - Matters in respect of which leave granted - Whether documents necessary to dispose fairly of issues raised - Whether applicant's ability to argue certain matters greatly diminished without sight of certain documents - Evidence - Assistance to foreign criminal investigations - Brady v Haughton [2005] IESC 54, [2006] 1 IR 1 - Criminal Justice Act 1994 (No 15), s 51(2) - Discovery granted (2008/397JR - Peart - 30/10/2009) [2009] IEHC 476

Agrama v Minister for Justice, Equality and Law Reform

Facts following the receipt by the respondent of a request for mutual assistance from a public prosecutor in Italy in which assistance was required in obtaining evidence in the State in connection with criminal proceedings instituted against the applicant in Italy, the respondent nominated a District Court judge to deal with that request. The applicant had been granted leave to seek judicial review of the respondent's decision in this respect. He contended that there were inconsistencies, misrepresentations and omissions contained in the request which induced the respondent to accede to the request, which amounted to an abuse of process. He further contended that the respondent was obliged to consider his complaints before nominating a judge to take the evidence. The applicant, in the context of those proceedings, sought an order of discovery of: all documents relating to contact with or from the Italian prosecutor in relation to the letter of request and the applicant's complaints concerning the said letters of request and all documents relating to respondent's consideration of the complaints raised by the applicant in relation to the said letters of request and the nomination of the judge to gather evidence thereunder.

Held by Mr. Justice Hedigan in refusing the relief sought that the only matter for conclusion in the discovery application was whether the documents which had been sought by way of discovery were relevant and necessary for the determination of the issues in respect of which the applicant had been granted leave to seek judicial review and in light of the grounds upon which that leave had been granted. That, in order to dispose fairly of the central issue raised by the applicant at the substantive hearing of the application for judicial review as to whether or not the respondent was obliged, when deciding to exercise his powers under section 51(2) of the Act of 1994 to be satisfied that the letter of request from the Italian authorities contained a fair, accurate and true statement of the facts justifying the request was a matter of legal interpretation and did not depend on the particular facts of the case. However, in order to dispose fairly of the other grounds upon which leave had been granted, including abuse of process, irrationality and unlawfulness generally, the documents sought were both relevant and necessary.

Reporter: P.C.

CRIMINAL JUSTICE ACT 1994 S51(2)

CRIMINAL JUSTICE ACT 1994 S51

Judgment of

Mr Justice Michael Peart

1 The background to these proceedings, and the present application by the applicant for an order for discovery of certain documents is that following the receipt by the Minister of a Request for Mutual Assistance dated 17^th July 2006 ("the first Request") from a Public Prosecutor in Milan, Italy, in which assistance was requested in obtaining evidence in the State in connection with certain criminal proceedings instituted against the applicant in Italy, the Minister exercised his power under Section 51 (2) of the Criminal Justice Act, 1994 ("the Act") to nominate a judge of the District Court (the second named respondent) "to receive such of the evidence to which the request relates as may appear to the judge to be appropriate for the purpose of giving effect to the request".

2 Following that nomination, the first named respondent has, through illness, become unavailable to deal with the application, and that Request has not proceeded further in the District Court as a result.

3 Subsequently, a second Request dated 11^th January 2008 ("the second Request") was received by the Minister, and another judge of the District Court (the third named respondent) has been nominated by the Minister pursuant to s. 51 (2) of the Act to deal with that Request.

4 The charges against the applicant which are outlined in the First Request have to a large extent become statute barred by passage of time under a new Statute of Limitations law in Italy which passed into law after the date of the first Request. Those charges which are now statute-barred are no longer being pursued by the Italian prosecutor. The second Request is in substitution for the first Request, though a letter dated 26^th May 2009 from the Chief State Solicitor's Office to the applicant's solicitor states that "the second Letter of Request substituted only the unexecuted part of the first Letter of Request". The same letter had sought to clarify that certain documents had already been transmitted to the Italian authorities, namely certain categories of documents to be acquired from National Irish Bank, following an application pursuant to s. 51 of the Act on the 21^st February 2007.

5 The second Request relates to new charges, relating to later years, and which are not caught by the said Statute, but appear to arise from the same factual matrix which lay behind the charges in the first Request. That is relevant to the present application for discovery.

6 The matter for the decision of this Court at the moment is whether the applicant is entitled to an order for discovery of certain documents as set forth in a letter from the applicant's solicitors dated 13^th October 2008 seeking voluntary discovery of four categories of documents as set forth therein. No such voluntary discovery has been forthcoming on foot of that request for voluntary discovery.

7 Once the applicant became aware of the first Request, his solicitors wrote to the Chief State Solicitor by letter dated 29^th May 2007 in which they set forth details of what the applicant considers to be "misrepresentations, inconsistencies and omissions" contained in that Request. These are set out in considerable detail in this letter, and I will not detail them here. But the letter concluded as follows:

"In our submission the foregoing representations which are misleading and untrue must have influenced you in deciding to accede to the Request and to appoint the District Judge to receive the evidence of Mr Kenny.

In our submission the placing of such a misleading request before you represents a serious abuse of process envisaged by the Convention, and negates and sets at nought the safeguards identified by Ms. Justice Denham in Brady v. Haughton as referred to in the letter accompanying this letter with respect to Mr Agrama's entitlement to address District Judge Murphy.

In the light of the true facts set forth herein, we call upon you to revisit the consideration of the Letter of Request and to withdraw the designation of District Judge Murphy.

We look forward to hearing from you and reserve our client's rights with respect to judicial review (also identified by Ms. Justice Denham as a safeguard in the process)."

8 That letter was replied to on the 7^th June 2007, inter alia, by confirming that it had been forwarded to the investigating Magistrate...