Carey v Hussey & DPP

• Jurisdiction: Ireland
• Judge: Kearns J.
• Judgment Date: 21 December 1999
• Neutral Citation: [1999] IEHC 71
• Court: High Court
• Date: 21 December 1999

[1999] IEHC 71

THE HIGH COURT

No. 237 JR/1999

CAREY v. HUSSEY & DPP

JUDICIAL REVIEW

BETWEEN

PATRICK CAREY

APPLICANT

AND

JUDGE GILLIAN HUSSEY AND DIRECTOR OF PUBLICPROSECUTIONS

RESPONDENTS

Citations:

DOMESTIC VIOLENCE ACT 1996 S17

DOMESTIC VIOLENCE ACT 1996 S2

LAW OF EVIDENCE ACT 1851 S14

FENNELL LAW OF EVIDENCE IN IRELAND (1992) 297

EVIDENCE ACT 1845 S1

KEANE MODERN LAW OF EVIDENCE 3ED 183

RSC O.39 r3

CRIMINAL EVIDENCE ACT 1992 S30

DCR O.2(2)

O'CALLAGHAN V CLIFFORD & DPP 1993 3 IR 611

WOODS DISTRICT COURT PRACTICE & PROCEDURE IN CRIMINAL CASES 166

VERDON V DOWNES UNREP SUPREME 29.7.1976 1976/10/1383

CORBETT, AG V HALFORD 1976 IR 318

AG V MCTIERNAN 1951 87 ILTR 162

PRICE V HUMPHRIES 1958 2 QB 353

ROYAL V CLARKE 1966 1 WLR 788

DINEEN V DELAP & DPP 1994 2 IR 228

MULLIGAN & MCDONNELL V DUBLIN CIRCUIT CRIMINAL COURT & DPP UNREP SUPREME 19.5.1999

Synopsis

Evidence

Form of court order; adjournment; judicial review; prohibition; safety order a necessary proof in prosecution case; prosecution sought to adduce evidence of safety order by means of a photocopy; applicant objected; whether respondent could accept the photocopy; whether respondent could adjourn the matter to allow certified copy to be obtained; s.30, Criminal Evidence Act, 1992; O. 2(2), District Court Rules.

Held: Respondent had jurisdiction to determine manner in which she would deem a copy of a document to be duly authenticated; respondent had discretion to adjourn hearing.

Carey v. Judge Hussey - High Court: Kearns J. - 21/12/1999 - [2000] 2 ILRM 401

That Section 30 of the Criminal Evidence Act, 1992 (No 12), confers a discretion on a judge to accept copies of a document as admissible as evidence in criminal proceedings. That a District Judge may determine the manner in which she shall deem a copy of a document to be duly authenticated. The first respondent indicated that she would accept a photocopy as duly authenticated and for that reason the applicant's argument is incorrectly founded. That the discretion of a District Judge, provided for by Order 2 Rule 2 of the Rules of the District Court (S.I. 93 of 1997), to adjourn a case at hearing must be exercised according to fair procedures. It was apparent that the adjournment was with regard to evidence of a formal nature, affecting the technical proof of the offence and accordingly adjournment of the case was not inappropriate. The defendant was not been prejudiced in any way and the application was dismissed. That the adjournment of a case is a matter for the discretion of the District judge and it was a matter on which the appellate Courts should intervene cautiously

1 Kearns J.delivered on the 21st day of December, 1999.

2 By Order of Geoghegan J. on the 28th day of June, 1999 the Applicant was given leave to apply by way of Judicial Review for an Order of Prohibition restraining the first named Respondent from further dealing with or resuming the hearing of the trial of the Applicant in a prosecution entitled "The Director of Public Prosecutions -v- Patrick Carey".

3 The facts giving rise to the application are contained in the affidavit of Patrick Carey, the Applicant, sworn on the 21st day of June,1999.

4 He deposes that on the 27th day of July, 1998 he appeared in Kilmainham District Court in Dublin to answer a complaint by way of charge sheet entitled "Dublin Metropolitan District/Director of Public Prosecutions, Applicant and Patrick Carey, 24 Forest Hills, Rathcoole, Co Dublin, Defendant." The said charge sheet (charge sheet no 80 of 1998/Rathcoole Garda Station) alleged that the Applicant on the 25th day of July, 1998 at 24 Forest Hills, Rathcoole, Co Dublin in the Dublin Metropolitan District, knowing that a safety Order under the Domestic Violence Act, 1996was in force, did put in fear the Complainant, Bernadette Carey, contrary to Section 17 of the Domestic Violence Act, 1976.

5 A Safety Order under Section 2 of the Domestic Violence Act, 1996had been made on the 8th day of June, 1998, and there is no issue about the fact that such an Order was validly made.

6 The case was adjourned several times and eventually came on for hearing at Kilmainham District Court on the 28th April, 1999, upon which occasion the Applicant was represented by Solicitor and Counsel.

7 The State Solicitor who was appearing for the second named Respondent, opened the case to the Court and called Garda Irish Brosnan to give evidence. Garda Brosnan gave evidence of her investigation of the complaint. The State Solicitor then called Bernadette Carey, wife of the Applicant, to give evidence. She gave evidence of an incident which she alleged occurred on the 25th day of July, 1998 at her home. At this point it is suggested that the State Solicitor director Garda Brosnan to hand a document into Court. This document purported to be a copy of the Safety Order in appropriate form.

8 However, Counsel for the Applicant asked to inspect the document and, on noting that it was a photocopy only of the original Safety Order, submitted that it was not admissible in evidence in photocopy form and that the only admissible evidence of the making of such an Order was the production of either the original Order or a certified copy ofsame.

9 The State Solicitor argued that the document spoke for itself and required no further proof. The District Judge indicated she would accept the document, but further indicated that if Counsel for the Applicant was unhappy and insisted upon a certified copy of the document, she would then adjourn the case to allow a certified copy be obtained. Counsel objected to the adjournment on the basis that the evidence in the case had commenced and further contended that as the prosecution's proofs were not in order, the appropriate Order to make in all the circumstances was to dismiss the complaint.

10 However, the learned District Judge then adjourned the matter until the 9th day of September, 1999 and remanded the Applicant on continuing bail to Kilmainham Court in the interim.

11 In a supplemental affidavit, the Applicant is adamant that the District Judge decided to adjourn the case of her own volition, without a request to that effect having been made by either side and, that by doing so, ceased to be impartial and in effect took the side of the prosecution with a view to curing a procedural defect.

12 There are accordingly two matters to be considered by this Court:-

13 (a) What is the appropriate form of a Court Order which is a necessary proof in a criminal prosecution?

14 (b) In what circumstances may a District Judge adjourn a criminal prosecution during the course of the prosecution case with a view to making good some procedural defect or technical defect in the prosecution's proofs?

15 Dealing firstly with the appropriate form of a Court Order, the Law of Evidence Act, 1851 provided (at Section 14) that "examined"or "certified" copies of documents should be admissible in evidence where such documents were admissible on production from proper custody and no statute existed which rendered their contents provable by means of a copy.

16 Fennell's (Law of Evidence in Ireland) (1992 Ed) provides at p.297:-

"A number of statutes provide for the proof of the contents of various public and judicial documents by secondary evidence which takes the form of an examined, certified office or stationery office copy. An examined copy is a copy signed and certified to be accurate by the official who has custody of the original. An office copy is a copy made in the office of the High Court and authenticated with a seal of the Court. Under Section 1of the Evidence Act, 1845, where the statue provides for proof of a document by a certified, sealed or stamped copy, the copy, provided it purports to be signed, sealed or stamped is...