Cecily Cunningham v The President of the Circuit Court and DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman
• Judgment Date: 26 July 2006
• Neutral Citation: [2006] IESC 51
• Court: Supreme Court
• Docket Number: [S.C. No. 117 of 2006]
• Date: 26 July 2006

[2006] IESC 51

THE SUPREME COURT

McGuinness J.

Hardiman J.

Kearns J.

117/06

CUNNINGHAM v PRESIDENT OF CIRCUIT COURT & DPP

Between:

CECILY CUNNINGHAM

Applicant

and

THE PRESIDENT OF THE CIRCUIT COURT and THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

PRACTICE AND PROCEDURE:

Discovery

Fair procedures - Prosecution - Public interest immunity - Whether requirement of fair procedures applied to DPP in exercise of statutory powers - Whether DPP required to list every document in affidavit of discovery - Whether discovery undermines special position of DPP in relation to reasons to prosecute - Whether delay in decision to prosecute applicant - Whether applicant entitled to discovery - Dunphy v DPP [2005]IESC 75, [2006] 1 ILRM 241, H v DPP [1994] 2 IR 589 and Nenea Karteria Maritime Company Ltd v Atlantic and Great Lakes Steamships Corporation (No 2) [1981] Com LR 139 followed (117/2006 - SC -26/7/2006) [2006] IESC 51, [2006] 3 IR 541[2006] 3 IR Cunningham v President of the Circuit Court

Facts: The applicant biochemist, charged with offences pursuant to the Offences Against the Person Act 1861, had obtained discovery of all communications between the prosecuting authorities and the Blood Transfusion Service Board as to the criminal investigation resulting in the prosecution of the Applicant. The applicant sought to appeal a refusal of an order for discovery of all correspondence between the office of the DPP and the Gardaí in respect of the progress of the criminal investigation of the Applicant, alleging that it would be impossible to effectively cross-examine certain deponents without sight of the correspondence.

Held by the Supreme Court, in allowing the appeal, that the applicant must have the opportunity of satisfying herself that what the opposite party has chosen to refer to represents material and relevant matters. The DPP had to list all relevant documents.

Reporter: E.F.

1 JUDGMENT of Mr. Justice Hardimandelivered the 26th day of July, 2006.

2 This is an appeal from the judgment and order of the High Court (Murphy J.) of the 19th December, 2005. The issue relates to whether or not an order for discovery in particular terms should be made against the second-named respondent, the Director of Public Prosecutions.

Background.

3 The applicant worked for many years as a biochemist with the Blood Transfusion Services Board. She has been charged with seven offences contrary to s.23 of the Offences against the Person Act, 1861. Three of these are alleged to have taken place in 1991 or 1992 and four in 1977. The form of charge in each case is the same:

4 "On the 28th May, 1977, at St. Munchins Hospital, Limerick, in the District Court area of Limerick, Cecily Cunningham unlawfully and maliciously caused a noxious thing namely infected Anti-D Immunoglobin to be taken by [alleged victim] thereby inflicting on [the same person] grievous bodily harm.

5 Contrary to s.3 of the Offences against the Person Act, 1861".

6 The most recent of the alleged offences is said to have occurred fourteen years ago and the most remote over twenty-nine years ago.

7 The applicant was charged with these offences in July, 2003 and she sought relief by way of judicial review later in that year. She was originally charged jointly with a co-accused, Dr. Terry Walsh, who had been National Director of the Blood Transfusion Service. Dr. Walsh has regrettably since died.

8 The applicant sought relief on the ground of delay. Very broadly, the allegation against her is that the health of each of the persons mentioned in the charges was impaired as a result of receiving contaminated Anti-D. This was a blood product produced by the Board while the applicant was employed by it as a biochemist, later as a principal grade biochemist. It is alleged that certain batches of the product were contaminated by using plasma taken from two named persons who had contracted Hepatitis C prior to the plasma being taken from them. Ms. Cunningham says that she always discharged her functions as an employee of the Board with due care and diligence "in accordance with the information and training made available to her and in conformity with the practise" at the relevant times. She says she obeyed the instructions given to her by those superior to her in the medical and general hierarchy of the Board. These include her former immediate scientific superior, his superior, the Assistant National Director and the National Director. All of these are now deceased except for one person who lives abroad. It is alleged that other persons relevant to the case are also deceased or unavailable.

9 Due to widely publicised and tragic medical events, an Expert Group was established in 1994 to investigate inter alia "all the circumstances surrounding the infection of the Anti-D immunoglobin product" manufactured by the Board. The report of this body was published in 1995. In October, 1996, a Tribunal of Inquiry was established under the former Chief Justice, Mr. Justice Finlay, to inquire into the same topic and many other related matters. Mr. Justice Finlay delivered his report in March, 1997, and it was published at the same time. This report was furnished in the same month to the Director of Public Prosecutions with the request that its contents be considered. Also available were the stenographic record of the hearings before Mr. Justice Finlay consisting in all of thirty days of evidence and submissions. Garda investigations were set in train. Some six years and three months later the applicant was charged with the offences already referred to.

10 The applicant says that she co-operated with the garda investigations and in particular attended an interview with the investigators in October, 1999. She says that it is clear from the questions and documentation put to her by the gardaí "that the garda investigation at that time was virtually complete".

11 The second-named respondent opposes the applicant's claim, saying that the investigation into this matter "was one of the most complicated ever to have been mounted. This was due to the volume of material, the number of complainants and the complexity of the subject matter. In addition to the factual difficulties there were also legal difficulties".

The affidavits.

12 A number of affidavits were filed by the respondent verifying the statement of opposition. In particular, and in relation to the period June, 2000, to April, 2003, it is said that queries emanating from the office of the Director had to be dealt with. Detective Superintendent John O'Mahony refers to these queries, arising in June, 2000, and refers to correspondence with the B.T.S.B. and a Dr. Yap. There was a further garda report to the Director in October, 2000, which "outlined that the investigation team were continuing with inquiries at the B.T.S.B. in an effort to further advance the responses required to matters raised by [the Director]... he further outlined that the gardaí were awaiting correspondence from Dr. Yap...". The Superintendent also says "there was correspondence between the office of the D.P.P. and the investigation team seeking clarification and further investigations" and that these led to further inquiries which "were forwarded to the offices of the D.P.P. for its information. The correspondence referred to arose out of queries and clarifications sought by the office of the D.P.P. This correspondence was over a protracted period".

13 There were then references as to further requests for clarification and queries from counsel.

14 These matters, including certain references to correspondence, also feature in the affidavits of Mr. Declan Murphy and Mr. Jarlath Spellman, both at the time professional officers of the D.P.P., sworn on behalf of the Director.

15 The applicant sought and obtained leave to cross-examine Mr. Murphy and Mr. Spellman on their affidavits.

Motion for Discovery.

16 After some correspondence, the applicant issued a notice of motion for discovery of certain categories of documents. By order of the 19th December, 2005, she was granted discovery of "all documents relating to communication between the prosecuting authorities and the B.T.S.B. after October, 1999, in relation to the criminal investigation resulting in the prosecution of the applicant herein and all documents touching or concerning or relating to communication between the prosecution authorities and Dr. Yap after October, 1999, in relation to the criminal investigation resulting in the prosecution of the applicant herein".

17 She was however refused an order of discovery in relation to:

18 a "(a) All correspondence between the office of the D.P.P. and the gardaí in respect of the progress of the criminal investigation into the applicant. In particular:

19 (i) The report of Detective Chief Superintendent Séan Caman referred to in paragraph 33 of the affidavit of Detective Superintendent John O'Mahony;

20 (ii) The correspondence referred to in paragraph 34 and 35 of the affidavit of Detective Superintendent John O'Mahony;

21 (iii) The correspondence referred to in paragraph 7 of the affidavit of Jarlath Spellman sworn on the 19th May, 2004, all of which correspondence is not exhibited".

Applicant's case on necessity for discovery.

22 The applicant points out that one of the issues for resolution in the judicial review proceedings is whether the prosecution proceeded with due expedition. The Director put forward, amongst the reasons for the long delay, the ongoing correspondence between his office and the persons mentioned in the affidavits. This correspondence however is not exhibited and the subject matter of it is, for the most part, not fully identified. Only one additional statement, appearing at p.114 of the Book of Evidence appears to have been...