DPP v Sweeney

JurisdictionIreland
CourtSupreme Court
JudgeMr. Justice Geoghegan
Judgment Date09 October 2001
Neutral Citation[2001] IESC 80
Docket Number[S.C. No. 151 of 2000]
Date09 October 2001
DPP v. SWEENEY; SWEENEY v. RAPE CRISIS CENTRE
IN THE MATTER OF A PROSECUTION ENTITLED THE PEOPLE(AT THE SUIT OF THE DIRECTOR OF PUBLICPROSECUTIONS)
Prosecutor

and

DEREK SWEENEY
Accused
AND IN THE MATTER OF AN APPLICATION FOR AN ORDER OFDISCOVERY
BETWEEN/
DEREK SWEENEY
Applicant/Respondent
AND THE RAPE CRISIS CENTRE
Respondent/Appellant
AND THE DIRECTOR OF PUBLICPROSECUTIONS
Notice Party/Notice Party
AND BY ORDER OF THE COURT MADE ON THE 6TH OF JUNE2000 A.C. AND S.C.
Notice Parties/Notice Parties

[2001] IESC 80

Murphy J.

Murray J.

Geoghegan J.

151/00
BILL NO. CC 158/99

THE SUPREME COURT

Synopsis:

PRACTICE AND PROCEDURE

Discovery

Non party discovery - Criminal law - Prosecution of rape - Jurisdiction of High Court - Jurisdiction of Central Criminal Court - Whether jurisdiction existed to order discovery in criminal case - Courts of Justice Act, 1926 - Criminal Procedure Act, 1967 - Criminal Procedure Act, 1993 section 11(1) - Supreme Court of Judicature Act (Ireland) 1877- Rules of the Superior Courts, 1986 Orders 31, 49 and 125 (151/2000 - Supreme Court - 9/10/01) - [2001] 4 IR 102 - [2002] 1 ILRM 532

DPP v Sweeney

The High Court had made an order of non-party discovery against the Rape Crisis Centre in relation to a prosecution for rape. The Rape Crisis Centre appealed against the order. Geoghegan J, delivering judgment in the Supreme Court (nem. diss.), was satisfied that the order was made as an order of the High Court and not as an order of the Central Criminal Court. The learned High Court judge was not entitled to make the order in question as such an order could not be made in connection with criminal proceedings. In so far as he was purporting to exercise jurisdiction it was a civil jurisdiction and was governed by the Rules of the Superior Courts. The appeal was allowed and the order of the High Court set aside.

Citations:

CRIMINAL PROCEDURE ACT 1993 S11(1)

CRIMINAL PROCEDURE ACT 1993 S11(2)

DPP, PEOPLE V O'SHEA 1982 IR 384

HALSBURY'S LAWS OF ENGLAND 4ED VOL 13

RSC 1986

BRAY ON DISCOVERY 1844

MATTHEWS & MALEK ON DISCOVERY 1992

COMMON LAW PROCEDURE (IRL) ACT 1853

JUDICATURE ACT(IRL) 1877 S3

RULES OF THE SUPREME COURT (IRELAND) 1905

WYLIES JUDICATURE ACTS

RSC O.31 r12

JUDICATURE ACT(IRL) 1877 S65

JUDICATURE ACT(IRL) 1877 S33

COURTS OF JUSTICE ACT 1924

COURTS OF JUSTICE ACT 1926 S4

COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961

CAHILL DISCOVERY IN IRELAND 1996 69

HANLEY, DPP V HOLLY 1984 ILRM 149

MURPHY V DUBLIN CORPORATION 1972 IR 215

CRIMINAL PROCEDURE ACT 1967

RSC O.31

RSC (NO 2) (DISCOVERY) 1999 SI 233/1999

ALLIED IRISH BANK (AIB) V ERNST 1993 1 IR 375

RSC O.125

RSC O.125 r1

RSC O.49 r6

CONLON V KELLY UNREP MCGUINNESS 14.12.1999 1999/4/918

RSC O.31 r29

DPP V SK UNREP CIRCUIT 14.12.1999

CRIMINAL PROCEDURE ACT 1993 S2(1)

1

Mr. Justice Geoghegandelivered the 9th day of October 2001

2

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 subsections 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 herebyabolished."

3

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 tothis 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) applies 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 ThePeople (Director of Public Prosecutions) v. O'Shea [1982] IR384 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.

4

In 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 thatdefective 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."

5

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 ignoring it for the purposes of this judgment as nothing turns on it. In the Halsbury Volume on Discovery of Documents it is pointed out that the term "discovery" is sometimes used in its wide generic sense to describe a wholerange of procedural devices. However, it is quite clear from both the nature of the notice of motion and the nature of the order made by the learned High Court judge that the order for discovery being sought here was the conventional kind of order albeit against a non-party which might be made under the Rules of the Superior Courts in any common law motion list. This, of course, is hardly surprising because there is no other known discovery type jurisdiction. The order made by Smith J. is in the classical form of requiring an affidavit of discovery to be filed and fixing a time limit within which it is to be done. But is there any jurisdiction to make such an order in a criminal case? Although this precise point may not be raised in those precise terms in the notice of appeal and although the Director of Public Prosecutions appears to accept that discovery procedure under the rules of court may be invoked in criminal prosecutions, this court, if it considers that there is no such jurisdiction cannot be expected to consider the merits of the order on some artificial assumed basis of jurisdiction. It emerged from the oral hearing of this appeal that the basis for suggesting that discovery orders may be made in criminal proceedings is extremely thin and, therefore, I consider that it is incumbent on this court to consider this matter first. In his authoritative work on discovery in 1844 Bray expressly rejected the proposition that the process of discovery was available in criminal proceedings and the same view is repeated by Matthews and Malek in their book on the same topic in 1992.

6

The history of discovery procedure is explained succinctly in Volume 13 fourth edition of Halsbury's Laws of England in footnote 3 to paragraph 1. It is explained that discovery was originally an equitable device employed in the Court of Chancery for obtaining the disclosure and inspection of relevant documents as well as the disclosure and admissions of relevant facts. The common law courts originally possessed no general power to order discovery of documents but they had limited powers to order inspection. The Common Law Procedure Acts ultimately conferred extensive discovery jurisdiction on the common law courts. But upon the amalgamation of the courts under the Judicature Acts a common practice of discovery of documents was established by those Acts and the Rules of Court...

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