Attorney General v Lee

• Jurisdiction: Ireland
• Judge: Keane C.J.
• Judgment Date: 23 October 2000
• Neutral Citation: [2000] IESC 80
• Court: Supreme Court
• Docket Number: [S.C. No. 46 of 2000]
• Date: 15 July 2002

AG v. LEE

BETWEEN:

THE ATTORNEY GENERAL

Plaintiff

and

LINDA LEE

Defendant

[2000] IESC 80

Keane C.J.

Murray J.

McGuinness J.

Hardiman J.

Geoghegan J.

46/00

THE SUPREME COURT

Synopsis:

Coroner

Coroner; hearing in Coroner's Court; witness summons issued; failure by witness to attend; sanction contained within the legislation to compel witness attendance clearly inadequate; proceedings instituted by plaintiff seeking interlocutory relief to direct the witness to attend; whether there is a general jurisdiction of the High Court to enforce the law on application from the Attorney General where it just and convenient to do so; whether exceptional circumstances exist to exercise this function.

Held: Appeal allowed; criminal sanction provided not appropriate method of enforcing the law; Attorney General as guardian of the rights of the public has jurisdiction to bring such action; not exceptional case for court to exercise its residual jurisdiction to secure compliance with the law.

A.G. v. Lee - Supreme Court: Keane C.J., Murray J., McGuinness J., Hardiman J., Geoghegan J. - 23/10/2000 - [2000] 4 IR 298 - [2001] 1 ILRM 553

The defendant was the widow of a man who had been fatally shot. The defendant initially appeared at the inquest which for legal reasons was adjourned. The defendant then failed to appear at the resumed hearings despite having been served with a witness summons. The Attorney General then issued plenary proceedings seeking to compel the attendance of the defendant pursuant to the provisions of the Coroners Act, 1962 and in this regard also sought an interlocutory injunction. The High Court (Kelly J) granted the injunction sought and the defendant appealed. Keane CJ, delivering judgment, held that the Attorney General was a guardian of the rights of the public and could seek relief in appropriate circumstances. In this instance the upholding of the injunction would dispose entirely of the case and thus the usual test in the issue of injunctions should not apply. It had not been demonstrated that this was not a exceptional case requiring the courts to exercise their residual function to ensure compliance with the law. The attendance of witness at a inquest was a matter for a coroner alone to decide. The appeal would therefore be allowed and the relief sought by the Attorney General would be refused.

Citations:

CORONERS ACT 1962 S26(1)

CORONERS ACT 1926

CORONERS ACT 1962 S37

CORONERS ACT 1962 S38(2)

CORONERS ACT 1962 S38(2)(b)

COMMITTEE OF PUBLIC ACCOUNTS OF DAIL EIREANN (PRIVILEGE & PROCEDURE) ACT 1970 S3(4)

HAUGHEY, IN RE 1971 IR 217

CONSTITUTION ART 38.2

DESMOND V GLACKEN 1993 3 IR 67

MOORE V AG 1930 IR 471

AG V PAPERLINK LTD 1984 ILRM 373

AG V CHAUDRY 1971 1 WLR 1614

1 JUDGMENT delivered the 23rd day of October 2000 by Keane C.J. [nem diss]

2 The undisputed facts which have given rise to these proceedings are as follows. On the 9th March 1996, one Gerard Lee was fatally shot. On the 3rd July 1996 the Dublin City Coroner, Dr. Brian Farrell, began an inquest into his death at the Dublin City Coroner's Court, which was adjourned until the 27th November 1997. At the resumed hearing, the defendant, who is the widow of the deceased Gerard Lee, appeared at the inquest, having been warned by the Gardaí that she should do so. At that hearing, she said that a statement which she had made had been dictated to her by the Gardaí. She began to give an abbreviated statement to the coroner, but this was objected to by a member of the Garda Siochána who asked the coroner to adjourn the inquest in order to permit the gardaí to seek legal advice. The coroner acceded to that request and the inquest was adjourned until the 4th February 1998.

3 A witness summons was then served on the defendant pursuant to s. 26(1) of the Coroner's Act, 1962(hereafter "the 1962 Act") in order to secure her attendance at the resumed hearing. However, the defendant did not attend the inquest when it was resumed on that day. Garda Inspector Patrick Doyle then wrote to the defendant on the 27th February informing her that the coroner required an explanation as to why she did not appear at the coroner's court on the 4th February 1998. In a further letter, dated the 21st March 1998, Inspector Doyle informed the defendant that the inquest would be resumed on the 27th March 1998 and that he had been directed by the coroner to ascertain whether she would attend. The defendant again failed to attend when the hearing was resumed on 27th March 1998 and another witness summons was served personally on her on the 21st April 1998. She again, however, failed to attend the resumed hearing of the inquest on the 12th May 1998.

4 On the 11th January 2000, the coroner wrote as follows to the Chief State Solicitor:-

"Re: Gerard Lee, deceased. Dear Mr. Buckley, I refer to previous correspondence and wish to confirm that Mrs. Linda Lee is an essential witness at the inquest into the death of the above-named deceased. Furthermore, the members of the family of the deceased are adamant that they wish to hear Mrs. Lee give evidence viva voce and this has been reiterated by counsel on a number of occasions. Yours sincerely"

5 On the 10th September 1999 the Chief State Solicitor wrote to the defendant warning her that, should she fail to attend on the next or any subsequent occasion, the Attorney General intended to issue High Court proceedings seeking to compel her so to do. A further witness summons was then served on the defendant on the 8th October 1999, but when the inquest was resumed on the 26th October 1999 the defendant was again not present.

6 The present proceedings were then issued by way of plenary summons in which the plaintiff claims inter alia

7 (a) a mandatory interlocutory injunction directing the defendant to comply with the provisions of the 1962 Act and attend as a witness at the adjourned hearing of the inquest on the 17th February 2000;

8 (b) a mandatory injunction directing the defendant to comply with the provisions of the Coroner's Act 1926 and to attend as a witness at the inquest to be held on that date.

9 On the 20th January 2000, a notice of motion was served on behalf of the plaintiff in which he sought inter alia interlocutory relief in the form of an injunction directing the defendant to attend as a witness at the adjourned inquest. A grounding affidavit was sworn by Mr. Brian McMahon of the Chief State Solicitor's office who made it clear that relief was being sought in this form because the plaintiff was of the view that there was no other effective method available to secure the attendance of the defendant at the adjourned hearing of the inquest.

10 Section 26(1) of the 1962 Act provides that

"A coroner may, at any time before the conclusion of an inquest held by him, cause a summons in the prescribed form to attend and give evidence at the inquest to be served on any person (including in particular any registered medical practitioner) whose evidence would, in the opinion of the coroner, be of assistance at the inquest."

11 Section 37 provides that a person who has been served with a summons to attend an inquest as a juror or witness and fails to attend at the specified time and place is to be guilty of an offence and liable on summary conviction to a fine not exceeding £5.00.

12 It is not in dispute that that is clearly an inadequate sanction. Section 38(2), however, provides that

"Any person who -"

(a) being in attendance as a witness at an inquest refuses to take an oath legally required by the coroner holding the inquest to be taken or to answer any question to which the coroner may legally require an answer or,

(b) does any other thing which would, if the coroner...