D.P.P. -v- Sweeney, [2001] IESC 80 (2001)

Docket Number:151/00
Party Name:D.P.P., Sweeney
Judge:Geoghegan J.
 
FREE EXCERPT

151/00THE SUPREME COURT

IN THE MATTER OF A PROSECUTION ENTITLED

THE PEOPLE (AT THE SUIT OF THE DIRECTOR

OF PUBLIC PROSECUTIONS)

Prosecutor

and

DEREK SWEENEY

Accused

BILL NO. CC 158/99

AND IN THE MATTER OF AN APPLICATION

FOR AN ORDER OF DISCOVERY

BETWEEN/

DEREK SWEENEY

Applicant/Respondent

AND THE RAPE CRISIS CENTRE

Respondent/Appellant

AND THE DIRECTOR OF PUBLIC PROSECUTIONS

Notice Party/Notice Party

AND BY ORDER OF THE COURT MADE ON THE

6TH OF JUNE 2000

Á.C. AND S. C.

Notice Parties/Notice Parties

Judgment of Mr. Justice Geoghegan delivered the 9th day of October 2001

This is a purported appeal against an order for non-party discovery made against the Rape Crisis Centre by Smith J. sitting in the Central Criminal Court the alleged purpose of the discovery being the defence of a prosecution for rape to be tried in that court. I have used the word "purported" because it has been argued on behalf of the accused in the proposed trial who is the applicant for the discovery that no appeal lies to this court from the order having regard to the provisions of section 11(1) of the Criminal Procedure Act, 1993. That subsection reads as follows:-

"The right of appeal to the Supreme Court, other than an appeal under section 34 of the Criminal Procedure Act, 1967, from a decision of the Central Criminal Court is hereby abolished."

Subsection (2) of the section goes on to provide that the section is not to apply to a decision of the Central Criminal Court in so far as it related to the validity of any law having regard to the provisions of the Constitution. Although on the face of it this might seem to be a preliminary objection to the appeal which would have to be determined first, in reality the applicability or otherwise of section 11(1) cannot be considered without a careful analysis of the nature of the appeal itself. If, as I believe to be the case, the order for discovery made was not an order made by the High Court exercising its criminal jurisdiction then clearly the subsection has no relevance and there is an appeal to this court in the ordinary way. Having arrived at that view, I do not propose to express any opinion on the important matter which was argued before the court as to whether section 11(1) applied only to the final decisions of the Central Criminal Court on the basis that it was intended merely to repeal the decision of this court in The People (Director of Public Prosecutions) v. O'Shea [1982] IR 384 or whether it was intended to apply to interlocutory orders by the court as well. Under the conventional rules of the common law for statutory interpretation there is a strong case in favour of the latter argument, but given that it has long been held that the right of appeal to the Supreme Court under the Constitution can only be removed by clear words, I would leave open to be determined on another occasion the question of what view the court should take if on a contextual interpretation it was clearly not intended by the Oireachtas to abolish the right of appeal in all cases.

I return now to the reason why I believe that the decision of Smith J. was a decision made in the ordinary way in the High Court and not a decision of the Central Criminal Court. It is true, of course, that administratively the papers were handled and the order drawn up within the office of the County Registrar of Dublin in accordance with normal practice (for purely historical reasons) of the Central Criminal Court and not in the Central Office of the High Court as would be expected if the civil jurisdiction was being invoked. But the fact that defective practices or defective or misleading administrative procedures might have been used is entirely irrelevant in considering what in substance was the nature of the purported jurisdiction being exercised by Smith J. The relevant order of the learned High Court judge was made on the 29th of May, 2000. As the terms of the order are quite short, I think it useful to cite it in full. It reads as follows:-

"This matter coming before the court this day on Motion for Discovery on behalf of the applicant herein and on reading the documents filed and on hearing Ms. Ring B.L. of counsel for the applicant and Mr. McCabe B.L. of counsel for the respondent herein and Mr. Sweetman B.L. of counsel for the notice party, the court DOTH MAKE Order for Discovery of the documents in the matter in question in the possession, power or procurement of the respondent as set out in paragraph (a) and (b) in the Notice of Motion and the Court DOTH ORDER that such discoveries be made on affidavit by the 14th of June 2000 Ms. Geraldine Conroy making the affidavit on behalf of the respondent and grant a stay for forty eight hours with no further order."

References to the "respondent" in the order are references to the Rape Crisis Centre which was named in the notice of motion and given the title "respondent". I know of no procedure whereby that could be done but I am...

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