DPP v Browne

JudgeMr. Justice McMahon
Judgment Date09 December 2008
Neutral Citation[2008] IEHC 391
CourtHigh Court
Date09 December 2008

[2008] IEHC 391


1668 JR/2007
DPP v Browne












DCR O.31 r1


WHELAN v KIRBY 2005 2 IR 30

DPP v DOYLE 1994 2 IR 286

MCGONNELL & ORS v AG & DPP UNREP MCKECHNIE 16.9.2004 2004/34/7903

MAHER v O'DONNELL & DPP 1995 3 IR 530 1996 2 ILRM 321 1996/6/1766

DPP v TUITE 1983 2 FREWEN 175 1983/8/2336

DPP v MCCARTHY & ORS UNREP CCA 25.7.2007 2007/19/3965

DUNNE v DPP 2002 2 IR 305 2002 2 ILRM 241 2002/7/1645

SCULLY v DPP 2005 2 ILRM 203



B v DPP 1997 3 IR 140



Summary road traffic fixed penalty offence - 29 categories of disclosure sought - Order for disclosure granted in District Court - Judicial review - Whether applicant could receive fair trial in absence of disclosure - Relevance of information sought - Onus on applicant to prove relevancy - No relevancy hearing - Duty on prosecution to disclose evidence in summary trial - Constitutional obligation to disclose certain evidence - Nature of offence - Common sense parameters - Interests of justice - Proportionality - Nature and importance of information - Whether applicant must prove real risk of unfair trial - Factual basis for disclosure - Whether applicant must engage in specific way with evidence - Applicable criteria - Whelan v Kirby [2004] IESC 17, [2005] 2 IR 30, DPP v Doyle [1994] 2 IR 286, B v DPP [1997] 3 IR 140, DPP v Ní Chonduin [2007] IEHC 321, (Unrep, MacMenamin J, 31/7/2007), Maher v Judge O'Donnell [1995] 3 IR 530, McFarlane v DPP [2006] IESC 11, [2007] 1 IR 134, Scully v DPP [2005] IESC 11, [2005] 1 IR 242 and Dunne v DPP [2002] 2 IR 305 applied; DPP v Sweeney (Unrep, DC, Browne J, 21/2/2007), McGonnell v Attorney General [2006] IESC 64, [2007] IR 400, People (DPP) v Tuite [1983] 2 Frewen 175, DPP v McCarthy [2007] IECCA 64, [2008] 3 IR 1 and Kenny v Judge Coughlin [2008] IEHC 28, (Unrep, Ó Néill J, 8/2/2008) considered - District Court Rules 1997 (SI 93/1997), O 31, r 1- Certiorari granted (2007/1668JR - McMahon J - 9/12/2008) [2008] IEHC 391

DPP v Judge Browne

Facts: The notice party was charged with certain summary road traffic offences and requests were made for disclosure of the operators manual, software and other documents in respect of a handheld computer used by the Gardai of a large quantity of items followed by a notice of motion seeking an order for discovery. 29 separate categories of disclosure had been sought. The issue arose inter alia as to whether the material sought was in the possession of the Gardai and whether it could be assembled without difficulty and the relevance thereof.

Held by McMahon J. that on balance, a wide ranging disclosure order could not be made against the respondent without a relevancy hearing. To grant such a far-reaching order without having a relevancy hearing to ground it on a specific factual basis and without an investigation as to whether the denial amounted to a real risk of an unfair trial did not respect the concept of proportionality. The matter would be remitted to the respondent to enable him to carry out a relevancy hearing to determine the matters to be disclosed. An order of certiorari would be granted making an order for disclosure for certain items also.

Reporter: E.F.


JUDGMENT of Mr. Justice McMahondelivered on the 9th day of December, 2008


The notice party was charged with the following offence:-

"On the 18 th March, 2006 at Lismeegan, Aughamore, Mayo a public road in the said District Court area of Ballyhaunus did drive a mechanically prepared vehicle Registration No. 03RN705 at a speed which exceeded the national road speed limit of 100km per hour applicable to the said road by virtue of section 7 of the Road Traffic Act, 2004."


Contrary to section 47 of the Road Traffic Act, 1961 (as inserted by section 11 of the Road Traffic Act, 2004) and section 102 of the RoadTraffic Act, 1961 (as amended by section 23 of the Road Traffic Act, 2002)."


The summons was returnable to Ballyhaunus District Court on 15 th November, 2006. The matter was adjourned on a couple of occasions and on 25 th June, 2007, Mr. O'Dwyer, solicitor for the notice party, wrote to the superintendent requesting 29 separate categories of disclosure. Twelve of the inquiries related to the hand held computer ("the electronic notebook") used by the gardaí and seventeen related to the processing of the fixed charge notice in relation to the handheld computer. Requests were made for disclosure of the operators' manual, copies of the software licence for the computer, copy of the certificate of competency of the operator and the certificate of competency in the training of the instructor, etc. As to the processing of the fixed charge notice similar requests were made in relation to the software used, the manufacturer's guidelines and handbook, the names of non-garda personnel involved in the processing of data, etc. Although some efforts were made by the State Solicitor to negotiate an agreement in respect of some of the items sought, sufficient progress was not made to satisfy Mr. O'Dwyer. He, therefore, brought a notice of motion returnable on 19 th September, 2007, seeking an order for disclosure of all the items listed in the letter seeking voluntary discovery, as well as an order for costs under O. 31, r. 1 of the District Court Rules 1997. In his grounding affidavit, Mr. O'Dwyer claims that the items being sought are of particular relevance because, in April 2006, An Garda Síochána without any statutory basis or public consultation introduced a new system for the processing of fixed charge offences (within the meaning of the Road Traffic Act 2006). In his affidavit, he goes on to describe in detail the old system whereby when a motorist wasdetected as being in contravention of the Act the prosecutor would complete the fixed charge notice by hand at the road side in a notebook. In contrast, according to Mr. O'Dwyer's affidavit in April 2006, a new procedure was introduced:-

"A new procedure was adopted which was primarily based on Itronix electric handheld computers. The procedure now employed by the gardaí involved the detection by the prosecutor of the motorist of an alleged offence in the same way as it was in the old regime. Thereafter however the prosecutor must now use a hand held computer by the direction of An Garda Síochána. The details of the motorist are inputted by the prosecutor into the handheld computer." (at para. 6 of the grounding affidavit).


Mr. O'Dwyer continues in his affidavit to outline the subsequent processing of the complaint and the electronic transfer to the mainframe computer at the Garda Headquarters, Phoenix Park, Dublin. Without the detailed information of the process Mr. O'Dwyer claims that he is at a disadvantage and his client cannot get a fair trial. Mr. O'Dwyer also refers in his affidavit to the fact that voluntary disclosure has been refused and that he believes "that there [is] a concerted effort being made to conceal the information about how the motorist's details are being processed". ( Idem at para. 12)


He further alleges that the procedure is clearly flawed and that this is known by persons in the highest position in An Garda Síochána to be a fact. He claims the prosecutor themselves are giving evidence in ignorance. ( Idem at para. 15.) He further avers that it is anticipated that there will be further applications seeking voluntary disclosure for all fixed charge offences coming before the courts. Finally, he claims thatthere is a veil of secrecy over the entire procedures as introduced and now employed by An Garda Síochána.


Mr. O'Dwyer also refers to another prosecution, namely Director of Public Prosecutions v. Oliver Sweeney(Unreported, District Court, Geoffrey Browne J., 21 st February, 2007) where the respondent herein also made a "Gary Doyle Order" on a previous occasion. Subsequently, in that case, the State Solicitor for Sligo applied to have the case struck out. Mr. O'Dwyer claims that that was a "test a case". This is denied in the affidavit sworn by Seamus Hughes for the Director of Public Prosecutions as indeed are many of the statements made by Mr. O'Dwyer in his affidavit. In Director of Public Prosecutions v. Oliver Sweeney (Unreported, District Court, Geoffrey Browne J., 21 st February, 2007), the State claims that the case was dropped because they could not comply with the disclosure order made (which also related to 29 categories of disclosure in a speeding case) and there was no "relevancy hearing" and no expert evidence called by either the defence or the prosecution. In a third case, it appears that the State Solicitor indicated that disclosure could be made in relation to some of the categories identified, but not all.


In his grounding affidavit for the relief sought in these proceedings, Seamus Hughes, State Solicitor for the County of Mayo set out what happened in the District Court on the day the respondent herein made the disclosure requested by Mr. O'Dwyer, the solicitor for the notice party. For reasons that will become obvious at a later stage I set out in full his account hereunder.


2 "22. After Mr. O'Dwyer concluded and urged on the court to make the Order for Discovery, the Respondent asked me to address him. I pointed out to the Respondent that I was in Court representing the State to set out the State's attitude towards correspondence received from Mr. O'Dwyerseeking discovery in respect of 29 separate...

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