Burke v DPP

• Jurisdiction: Ireland
• Judge: Keane C.J.
• Judgment Date: 21 June 2001
• Neutral Citation: 2001 WJSC-SC 518
• Docket Number: [S.C. No. 218 of 2000]
• Court: Supreme Court
• Date: 21 June 2001

2001 WJSC-SC 518

THE SUPREME COURT

Keane C.J.

Geoghegan J.

Fennelly J.

218/00

BURKE v. DPP

BETWEEN:

BURKE

Applicant

.v.

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Citations:

CRIMINAL JUSTICE ACT 1951

COMPANIES (AMDT) ACT 1990 S34

RSC O.31 r12

RSC (NO 2) (DISCOVERY) 1999 SI 233/1999

SWORDS V WESTERN PROTEINS LTD 2001 1 ILRM 481

Synopsis

Practice and Procedure

Discovery; material nature of documents; obligation to specify documents and give reasons; applicant is the subject of criminal proceedings; applicant had instituted proceedings to have these criminal proceedings prohibited by reason of alleged delay on the part of the prosecuting authorities; applicant seeks discovery of certain documents in relation to these proceedings; whether High Court judge had been correct in law in refusing application for discovery; whether there had been any particularly significant delay on part of applicant in bringing application for discovery; whether documents sought are material; whether applicant had complied with statutory obligation to pinpoint documents or category of documents required and give reasons; 0. 31, r. 12, Rules of the Superior Courts [substituted by Rules of the Superior Courts (No. 2)(Discovery), 1999. SI No.233/1999].

Held: Appeal allowed; order of discovery in respect of specified statements taken in course of investigation granted.

Burke v. D.P.P. - Supreme Court: Keane C.J., (ex tempore) Geoghegan J., Fennelly J. - 21/06/2001 - [2001] 1 IR 760

The applicant had sought an order for discovery in respect of four categories of documents. Mr. Justice Lavan in the High Court had refused the application and the applicant had appealed. In separate proceedings the Director of Public Prosecutions was prosecuting the applicant on fraud charges and for fraudulent trading. In addition the applicant was bringing judicial review proceedings seeking to prohibit his trial. Keane CJ was not satisfied that the applicant had delayed in bringing the application. The statements taken by the Gardaí while investigating the matter would appear to be relevant and should be discovered. The Chief Justice noted however that the application for discovery did not satisfactorily comply with the recent discovery legislation, in particular the reasons why the documents were sought had not been set out. That said, the appeal would be allowed in part.

1 Extempore Judgment delivered on the 21st day of June 2001 by Keane C.J. [nem diss]

2 This is an appeal from an order and judgment of the High Court (Mr. Justice Lavan) in which he refused to grant an order for discovery of four categories of documents identified in the affidavit grounding the application for discovery. The application has its origins in a prosecution brought by the respondent, the Director of Public Prosecutions, against the applicant alleging a series of counts of fraud against the applicant and the proceedings in respect of which the discovery motion is brought are proceedings by way of judicial review in which the applicant seeks to prohibit his trial on the various offences with which he is being charged under the Criminal Justice Act, 1951and Section 34 of the Companies (Amendment) Act 1990, effectively fraudulent trading. The applicant has sought an order by way of judicial review prohibiting the further prosecution of the charges against him on the ground that the Director of Public Prosecutions has been in culpable delay in bringing the proceedings and that in accordance with various cases which have come before the courts, particularly in recent times, the Director of Public Prosecutions should be restrained from further proceeding with the case on the ground that the delay violates the constitutional rights of the applicant to a trial within a reasonably expeditious time.

3 That is the case as brought but, of course no more than in the High Court, it is not the function of this court on the function of this court on the hearing of an application for discovery or an appeal from the order of the High Court on discovery to express any view or prejudge in any way the merits of the application brought by the applicant. The court's sole function is to determine whether the High Court judge was correct in law in refusing to grant the application. The High Court judge did so on an initial ground, which it is right to say has not been pressed although not abandoned in this court, namely, that there had been significant delay on the part of the applicant in making the application for the order for discovery. The trial judge indeed expressed the view that this may have been part of a delaying tactic on the part of the applicant in relation to the proceedings generally.

4 I am satisfied that so far as the application for discovery is concerned this was not a ground for refusing the application. There does not appear to have been any particularly significant delay in terms of the listing of the case and the closing of the pleadings, as it were, in bringing the application and certainly no indication that it was simply brought in order to delay matters...