Barry v DPP

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 14 February 2003
• Neutral Citation: [2003] IEHC 173,[2001] IEHC 55
• Court: High Court
• Docket Number: No. 407JR/1997,No. 407/JR/1997
• Date: 14 February 2003

BARRY v. DPP

JUDICIAL REVIEW

BETWEEN

DR. JAMES BARRY

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS AND BY ORDER OF THE COURTDATED 17TH NOVEMBER, 1997 THE DISTRICT JUDGE for the time being assignedto deal with proceedings entitled "THE DIRECTOR OF PUBLICPROSECUTIONS (PROSECUTOR) AND DR. JAMES BARRY (ACCUSED)" in the"District Court Cork.

RESPONDENTS

[2001] IEHC 55

No. 407JR/1997

THE HIGH COURT

Synopsis

CRIMINAL LAW

Practice and procedure

Discovery - Sexual offences - Previous orders - Inspection of documents - Privilege claimed against discovery (1997/407JR - O'Neill J - 2/4/01)

Barry v DPP

The applicant sought further inspection of documents relating to his impending prosecution on charges of sexual assault. A previous court order having been made the applicant now sought further inspection of documents. O'Neill J held that further inspection was not necessary and accordingly refused the application.

Citations

CONSTITUTION ART 34.1

CONSTITUTION ART 35.2

CONSTITUTION ART 38

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

CONSTITUTION ART 38.1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5.1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

RSC O.31 R18(2)

1 O'Neill J.delivered the 2nd day of April, 2001.

2 The Applicant was on the 30th October, 1997 charged with 237 offences of a sexual nature allegedly committed against 43 complainants. On the 17th November, 1997 the Applicant obtained leave to bring these proceedings from Geoghegan J. The grounds upon which leave was granted were asfollows

3 i "I The initiating of the said prosecution, the application for the warrant for arrest of the Applicant, the granting and obtaining of the said warrant, the arrest of the Applicant and all steps in the said prosecution and the continuance of the said prosecution are not, and were not, in accordance with law after the abolition of the offences of indecent assault contrary to common law and the abolition of the offences of sexual assault contrary to common law on the 19th day of August 1997,and were, and are, in violation of the rule of law and contrary to Article 34.1, Article 35.2, Article 38, Article 40.1 and Article 40.3 of the constitution and contrary to Article 5, Article 6, Article 13, Article 14 and Article 17 of the European Convention on Human Rights and Fundamental Freedoms and Article 3 of the Statute of the Council ofEurope.

4 II There has been gross and inexcusable delay resulting in legal and moral prejudice to the Applicant in initiating the said prosecutions amounting to an abuse of the process of the Courts and in contravention's of Article 38.1, Article 40.1 and Article 40.3 of the Constitution and Article 5.1 and Article 6 of the European Convention on Human Rights and Fundamental Freedoms.

5 III There has been a pattern of abuse of process and fundamental unfairness amounting to oppression and a denial of the right to constitutional justice which is in violation of Article 38.1, Article 40.1 and Article 40.3 of the Constitution and of Article 5.1 and Article 6 of the European Convention on Human Rights".

6 By Order of this Court (McCracken J) made on the 9th March, 1998 it was ordered that the first named Respondent do within 4 weeks of the date thereof make discovery on oath of the documents which are and have been in his possession or power relating to the matters in question in this action, the Affidavit on behalf of the first named Respondent to be sworn by Thomas J Waldron. An Affidavit of Discovery was sworn by the said Thomas J Waldron on the 8th July, 1998. By notice of Motion dated the 24th July, 1998 the Applicant sought further and better discovery and an order for the production forinspection of the documents set out in the second part of the first schedule to the said Affidavit of Discovery. An Affidavit of Discovery was sworn on the 8th December, 1998 by John Rohan an assistant solicitor in the office of the Chief State Solicitor. By Notice of Motion dated the 9th December, 1998 the Applicant sought an Order requiring the Respondents to produce for inspection the documents set forth in the second part of the first schedules of the Affidavits of documents already sworn in respect of which the Respondents had claimed privilege. In addition in this Notice of Motion the Applicant sought an Order directing the Respondents to make further and better discovery of material documents which they claimed were in the possession of the Respondent but had not been discovered.

7 By Order of this Court (Geoghegan J) made the 28th January, 1999 it was ordered that within two weeks from the date thereof an Affidavit to be sworn by the Applicants solicitor be served and filed by the Applicant to specify which of the documents discovered by the first named Respondent in relation to which the first named Respondent is claiming privilege were being disputed by the Applicant and stating the reasons for such dispute.

8 The Applicants solicitor Denis O'Sullivan swore a lengthy Affidavit on the 9th February, 1999 which was expressed to be for the purpose of grounding a Notice of Motion dated the 9th December, 1998. This Affidavit notwithstanding the date of its swearing does not attempt compliance with the Order of Geoghegan J made on the 28th January by specifying the documents in respect of which the privilege claimed was disputed. A further Affidavit of Discovery was sworn on the 3rd June, 1999 by John Rohan and this was expressed to be in response to the Affidavit of Denis O'Sullivan sworn on the 9th February, 1999. An Affidavit of Discovery was also sworn on the 3rd June, 1999 by Michael Comyns. This Affidavit was expressed to be for the purpose of clarifying the grounds upon which an executive privilege was claimed earlier. A further Affidavit was sworn by Denis O'Sullivanon the 29th June, 1999. This seeks production of documents for inspection in respect of which privilege was claimed by the Respondent. This Affidavit complains about delay on the part of the Respondents in furnishing Affidavits of Discovery, having regard to the fact that the matter came before Geoghegan J on the 3rd June, 1999 who on that day adjourned the matter to the 2nd July, 1999 on terms that the first named Respondent should furnish to the Applicants solicitor such further Affidavit or Affidavits as were necessary to comply with the Order of Discovery made the 9th March, 1998 together with copies of all documents in respect of which production for inspection was not being contested, the same to be furnished to the Applicants solicitor on or before Friday 25th June, 1999. A further Affidavit was sworn by the said Denis O'Sullivan on the 26th July, 1999. It appears from this Affidavit that a further adjournment of the matter had been granted to the 27th July, 1999 on the basis that the discovery and documents sought were to be furnished not later than a week prior to the 27th July, 1999. This Affidavit also complains of the manner of the notification to Mr. O'Sullivan of an intended application for a further adjournment on the 27th July, 1999 and claims an order requiring the first named Respondent to be examined on oath, in relation to the documents which are or have been in his possession or power relating to the matter in issue in the proceedings on the basis that it is alleged that it is had been admitted and established that such Affidavits as had been filed on behalf of the said Respondent did not constitute a compliance with the Order of Discovery made the 9th March, 1998. There is also a claim for such an Order or such further Order as would ensure immediate compliance by the first named Respondent with the Order of this Court made the 9th March,1998.

9 By Order of this Court (Geoghegan J) made the 26th July, 1999 the matter was adjourned peremptorily to Monday 11th October, 1999. A further Affidavit of Discovery was sworn by Domhnal Murray Solicitor, professional officer in the office of the first named Respondent, on the 7th September, 1999. An Affidavit of Discovery was sworn by Kieran TMcCann a Superintendent of An Garda Siochana on the 7th October, 1999 and a further Affidavit of Discovery was sworn by John Rohan on the 8th October, 1999. A further Affidavit was sworn by Denis O'Sullivan on the 7th October, 1999. In this Affidavit Mr. O'Sullivan complains that an agreement made the 5th August, 1999 that inspection facilities in respect of the documents listed in the first schedules part one of the Affidavit of Discovery of Superintendent Waldron, already made, would be provided on the 10th August, 1999 at 2.30 p.m. but that, that agreement was breached by the letter of the 9th August, 1999 received by Mr. O'Sullivan from the Chief State Solicitors office which purported to refuse the aforesaid inspection facilities. In the light of this refusal, which it is contended by Mr. O'Sullivan was a further disobedience of the Order of the 9th March, 1998, Mr. O'Sullivan repeats his application made in an earlier Affidavit for an Order requiring the first named Respondent to attend to be examined on oath as to the documents in his possession or power and to explain the manner in which he has conducted himself in relation to these proceedings.

10 A further Affidavit was sworn by Mr. O'Sullivan on the 2nd December, 1999. The express purpose of this Affidavit was to exhibit and verify correspondence which had passed between the parties since the date of the previous Affidavit.

11 On Friday 3rd December, 1999 the matter came on for hearing before Geoghegan J and on that day he made the following Order

"It is ordered that the first named Respondent do produce...