Corbett v DPP

JurisdictionIreland
CourtHigh Court
JudgeO'Sullivan J.
Judgment Date13 Apr 1999
Neutral Citation[1999] IEHC 3
Docket Number[1997 No. 391 J.R.]

[1999] IEHC 3

THE HIGH COURT

1997 No. 391JR
CORBETT v. DPP

BETWEEN

EMMET CORBETT
APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT

Citations:

DEVANNEY V SHIELDS & DPP 1998 1 IR 243

DEVANNEY V SHIELDS & DPP 1998 1 IR 230

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S28

PROSECUTION OF OFFENCES ACT 1974

AMBIORIX V MIN FOR ENVIRONMENT (NO 1) 1992 1 IR 277

BREATHNACH V IRELAND (NO 3) 1993 2 IR 458

C V DPP & BRENNAN UNREP SUPREME 28.5.1998 1998/13/4254

MURPHY V KIRWAN 1993 3 IR 501

OFFENCES AGAINST THE PERSON ACT 1861 S42

Synopsis

Practice and Procedure

Discovery; privilege; legal professional privilege; public policy privilege; High Court had granted an order of discovery in respect of certain documents held by the respondent; whether the documents were covered by legal professional privilege and/or public policy privilege; whether public policy privilege had been competently raised; whether there was an abuse of process

Held: An Order directing production of specified documents and portions thereof was granted

Corbett v. D.P.P. - High Court: O'Sullivan J. - 13/04/99 - [1999] 2 IR 179

Legal/Professional privilege in the strict sense does not apply to communications to and from the Director of Public Prosecutions but the public policy underlying the protection of communications between a client and his lawyer made for the purpose of obtaining and giving legal advice did apply. It is open to the respondent in principle to claim that a public policy privilege, being the public interest in the prevention and prosecution of crime, applies to the documents sought to be discovered and in deciding this issue the Court could examine the documents in question. The High Court so held in ordering partial discovery of the documents sought and further saying that a wrongful interference with the processes of the Court had not been established.

1

O'Sullivan J.delivered the 13th April 1999

BACKGROUND
2

The Applicant is charged with assault contrary to common law and section 42 of the Offences Against the Person Act 1861 by a Summons issued on the 24th of June 1997 signed by a District Court Clerk. This Summons was served in August 1997 returnable before the District Court on the 1st September and adjourned to the 11th of November of that year.

3

On the 7th of November the Applicant received a letter dated the 4th from Sergeant T. McKenna, Anglesea Street Garda Station, Cork, informing him that his case would be adjourned on the 11th, that he was not to attend and he would be notified of the new date in course.

4

Meanwhile on the 6th November Ms Mary Cashman, Clerical Officer, of Anglesea Street Garda Station contacted Ms Georgina Phelan, the Applicant's Solicitor, and informed her that the Prosecution would be seeking an adjournment, mentioning the pending Appeal before the Supreme Court of the High Court judgment in the case of Devanney v Judge Shields and the DPP which had cast doubt inter alia on the validity of theproceedings against the Applicant, and Ms Cashman who has sworn an affidavit says that Ms Phelan did not in any way take exception to the proposed course of action or express any objection to the proposed adjournment. Ms Cashman does not say that she informed Ms Phelan on that occasion that the Gardai had contacted her client direct.

5

On the 10th of November 1997 application was made to Barr J. in the High Court for liberty to apply for judicial review against the Respondent herein on the grounds that the continuance of the prosecution was not in accordance with law after the abolition of the offence charged, was in violation of the rule of law and contrary to several specified articles of the Constitution and of the European Convention on Human Rights; secondly, on the ground that the application for the issue of the summons was not signed and issued by a person lawfully appointed; thirdly on the ground that the prosecution had been "invalidated" by reason of the conduct of the Respondent in what is described as unlawfully purporting to exercise the functions of the Courts and of the Judges appointed under the Constitution, in denying the Applicant's right of access of the Courts and creating a situation where a reasonable person would apprehend bias on the part of the Courts and the said Judges contrary to several articles of the aforementioned instruments; and finally on the ground that the Respondent had been guilty of wrongful interference with the administration of justice contrary to several articles of the aforementioned instruments. Barr J. granted the Applicant liberty to seek judicial review on the first three of those grounds but not on the fourth ground. His order, of the 10th of November 1997, put a stay on the common assault proceedings so that in the event the intended application for an adjournment on the 11th November was never actually made.

6

In his Affidavit sworn on the 8th of November 1997 grounding the initial application to Barr J. the Applicant refers to the letter dated the 4th of November 1997 and to what he describes as the attitude of the Respondent that he was not entitled even to make anapplication in the District Court in his case and it appears that the Respondent was satisfied that he had a predetermined decision of the Courts in the issue of how the matter should be disposed of on the date on which it had been listed for trial. He said that in fact when he received this communication he believed that the Respondent had gone to a Judge and obtained an Order postponing the trial without reference to his views on the matter and without his Solicitor being present.

7

On the 17th of February 1998 the Respondent filed a statement of grounds of opposition in which the application is comprehensively opposed. A week later two affidavits one of Sergeant Thomas McKenna and the other of Ms Mary Cashman were sworn. Sergeant McKenna in the course of his affidavit avers that he was aware (in November 1997) of the fact that a judicial review had been commenced before the High Court in which the provisions of the Non Fatal Offences Against the Person Act 1997were to be considered in particular in light of the repeal by section 28 of the said Act of the common law offence faced by the Applicant. He says it was felt appropriate to let the matter to be decided in the judicial review already commenced rather than to have a series of cases stated and judicial reviews going to the High Court on the same point. He refers to a considerable degree of confusion in the District Courts in Cork and be believes throughout the State and to his instructions to make application to have such cases adjourned. He acknowledges his letter dated the 4th of November and says:-

"It was not my intention in the phrasing of that letter to indicate that I was in any way usurping or attempting to usurp the constitutional functions of the Courts as alleged on behalf of the Applicant. I perhaps should have phrased the letter differently and indicated that I would be applying to adjourn the matter. That was myintention."

8

He also refers to the fact that in the initial application no mention was made to the phone call to the Applicant's Solicitor indicating their intention to adjourn.

DISCOVERY
9

On the 23rd of March 1998, after vigorous resistance by the Respondent, on the grounds, I am informed, that the Respondent had no relevant documents. McCracken J. made an Order for Discovery of documents in relation to the two following categories:-

10

(a) The appointment of one Desmond Relihan as District Court Clerk in Cork.

11

(b) Such instructions as were provided to Sergeant Thomas McKenna in respect of a proposed application for an adjournment in respect of the prosecution being faced by the Applicant herein prior to the forwarding to the Applicant of a letter dated the 4th day of November 1997, referred to at paragraph 7 of the Applicant's groundingaffidavit.

12

By affidavit sworn on 17th April 1998 by Sergeant Thomas McKenna the Respondent purported to comply with this Order for Discovery.

13

In the privileged section the following five documents were setout:-

14

1. Memorandum dated 3rd November 1997 from Superintendent John Kelly, "C" Branch, Crime Section, Garda Headquarters, for the attention of Divisional Officer together with accompanying documents.

15

2. Memo dated 3rd November 1997 from the Office of the Director of Public Prosecutions addressed to the Chief State Solicitor, each State Solicitor and the Garda Commission (sic) re Patrick Devanney v District Judge Shields and Ors.

16

3. Memorandum from Superintendent TJ Waldron, signed by Inspector Shanahan, addressed to each Inspector and each Sergeant in Charge. Anglesea Street District, Re. Prosecutions for Assault contrary to common law bearing date stamp 22nd October, 1997 accompaniedby:

17

4. Memorandum from Chief Superintendent O'Sullivan addressed to each Divisional Officer enclosing, for their information

18

5. Memorandum dated 9th October 1997 from the Office of the Director of Public Prosecutions addressed to Chief State Solicitor and to each State Solicitor and to the Garda Commissioner re prosecutions for assault contrary to common law.

19

In regard to the foregoing privilege was claimed by Sergeant McKenna in the following terms set out at paragraph 5 of his affidavit of the 17th of April 1998.

20

5. I object to production of the said documents upon the grounds that the said documents attract legal professional privilege and/or in the alternative public interest privilege as the said documents consist of the provision of legal advice in relation to pending prosecutions and further constitute internal circulars and memoranda relating to pending prosecutions before the District Court including the prosecution of the Applicant herein and it would not be in the public interest that such matters be disclosed. In the performance of his duties...

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