Dunphy (A Minor) v DPP

CourtSupreme Court
JudgeMr. Justice Hardiman
Judgment Date02 November 2005
Neutral Citation[2005] IESC 75
Docket Number[S.C. No. 290 of 2004]
Date02 November 2005

[2005] IESC 75


Hardiman J.

McCracken J.

Macken J.

Dunphy v D.P.P.





Practice and procedure - Discovery - Judicial review - Onus - Whether burden for obtaining discovery in judicial review discharged by applicant - Prosecution - Whether duty to give reasons for decision to prosecute

Facts: the applicant had been charged with unlawful possession of drugs. She had been arrested with another girl who also carried the same drugs. She was aggrieved at the fact that while she was being prosecuted, the other girl was not but was instead diverted from the criminal process under the respondent's juvenile diversion programme. The applicant then requested that the respondent disclose the basis and documentation on which the decision had been taken to prosecute her but not her associate. Following a refusal of that request, the applicant was given leave to seek relief by way of judicial review of her prosecution. She then sought discovery in the terms of her previous letter to the respondent. That application was refused by the High Court and the applicant appealed that decision to the Supreme Court.

Held by the Supreme Court (Hardiman J; McCracken and Macken JJ) in dismissing the applicant's appeal from the decision of the High Court refusing her application for discovery of documents in the context of a judicial review of the decision of the respondent to prosecute her, that discovery would only be granted in judicial review applications in limited circumstances. As the Director of Public Prosecutions, as a general rule, was not obliged to give reasons for his decision to prosecute or not to prosecute in a given case, an application for discovery in the context of a judicial review of the decision of the respondent to prosecute the applicant did not fall within one of the limited exceptions as there was a special evidential standard for the applicant as the granting of discovery would or might undermine the special protection available to the respondent in respect of his decision to prosecute.

Reporter: P.C.


JUDGMENT of Mr. Justice Hardiman delivered on the 2nd day of November, 2005.


This is an appeal from the judgment and order of the High Court (Kearns J.) of the 22nd March, 2004, whereby the applicant's motion for discovery in these proceedings was refused.


The applicant is presently the defendant in criminal proceedings. She is alleged to have been in unlawful possession of a controlled drug on the 22nd October, 2001, and to have been in possession of the same drug for the purpose of unlawfully supplying it to another. She was arrested, together with another girl called Emma Kavanagh, in Portmarnock and was found to be carrying a bag which contained the drug in tablet form. She was interviewed by the Gardaí and said the drugs were the property of a friend of hers, Gareth Hickey. He had given the drugs to the other girl, Ms. Kavanagh, on the previous day. She had kept them overnight, and told Ms. Dunphy about them. Ms. Kavanagh however could not keep the drugs on the next night as she was not going to be at home. On that night, the owner of the drugs, Gareth Hickey had "business" in Portmarnock with the drugs and prevailed upon the applicant to carry the drugs for him as she was less likely to excite suspicion. She had them partially concealed by a jacket which Ms. Kavanagh had given to her for that purpose.


Ms. Kavanagh admitted that she had accompanied Hickey to an address in Killester when he collected the drugs which according to him consisted of "1,000 Es". She had carried the drugs for him on that night and subsequently kept them at home and brought them to school the next day.


Mr. Hickey accepted responsibility for the drugs. He said that he had paid Ms. Kavanagh £30.00 to mind the drugs.


At the time of these events the applicant and Ms. Kavanagh were fifteen years of age and Mr. Hickey was nineteen. The applicant's background is an unfortunate one and she had lived in care, in a hostel, for some time. On the hearing of this appeal it was strongly submitted that the applicant's involvement in the matter described above was the least of the three. The reality appears to have been that both girls were heavily under the influence of Gareth Hickey and were prepared to oblige him in any way he wished.

The complaint.

The applicant is aggrieved at the fact that while she is being prosecuted in respect of her dealings with Gareth Hickey's drugs, Ms. Kavanagh is not. Instead, she was diverted from the criminal process under the Juvenile Diversion Programme, in accordance with an appendix to the Director of Public Prosecutions "general guidelines", published October, 2001.


By letter of the 13th November, 2002, the applicant's solicitors wrote to the Director setting out their view of the case. Specifically they contended that the applicant was a vulnerable person and that her involvement was much less than that of the other girl who had "collected the tablets, received a remuneration, and held the tablets in her possession (in her house and in her school bag) for nearly two days". The solicitor's letter concluded:

"We understand why the Director on the facts of the case might consider dealing with persons under the Scheme. Dunphy in particular was somebody whom we would have thought would be appropriate to be so dealt with. In any event the Director has dealt with Ms. Kavanagh under the Scheme.

Given their respective levels of involvement we would respectfully submit that the decision by the Director to permit resolution under the Scheme binds him in how he must deal with our client. To deal with the matter otherwise we submit would be unfair".


The solicitors asked either that the applicant be dealt with under the Juvenile Diversion Programme or, in the alternative, that the Director disclose "the precise basis and documentation in existence touching upon same (including internal memoranda) on which the decision was reached to prosecute our client and to deal otherwise with a person who was much more culpable than our client".


The Director replied tersely that "... The decision to prosecute Sabrina Dunphy was made in line with the general guidelines as published by the D.P.P's office in October, 2001. It is not proposed to reverse the decision such that your client be dealt with under the Juvenile Diversion Programme".

The proceedings.

By order of the 27th January, 2003, the High Court (Miss Justice Carroll) granted the applicant leave to seek reliefs by way of judicial review including:


(1) An order prohibiting the respondent his servants or agents from taking any further step in the criminal prosecution,


(2) An order in the nature of an injunction... restraining the respondent his servants or agents from taking any further step in the prosecution,


(3) A declaration that the respondent has acted otherwise and in accordance with law in initiating the said prosecution,


(4) A declaration that the respondent has acted other than in accordance with law in maintaining the same prosecution,


(5) A declaration that the respondent has acted in breach of the constitutional rights of the applicant and in particular her constitutional right to be held equal before the law,


(6) A declaration that the respondent has acted otherwise in accordance with law and/or in breach of the constitutional rights of the applicant in failing to give reasons for initiating the prosecution... while applying the Juvenile Liaison/Diversion Scheme to a confederate,


(7) An order of mandamus requiring the respondent to give reasons for the decision not to apply the provisions of the Juvenile Liaison/Diversion Scheme in the case of the applicant.


In July 2003 the respondent filed a notice of opposition stating that there was no reason to believe that his decision to prosecute the applicant was mala fide, perverse, inspired by improper motives or policy, or was the result of an abdication of his functions. He also pleaded that in the absence of evidence from which it could reasonably be inferred that the decision to prosecute her was of that nature, her complaints were not cognisable by any court and could not give rise to any relief. He also pleaded that in the absence of such evidence the applicant was not entitled to require reasons to be given as to why he did in fact initiate the prosecution. He further pleaded that no right of the applicant had been violated.


In November, 2003, the applicant sought voluntary discovery substantially in the form set out above. She said that she had been discriminated against unfairly by comparison with the treatment accorded to Ms. Kavanagh who was factually more culpable. She further said that the respondent had discriminated between the two girls in a manner which was unconstitutional, unfair and arbitrary. She further said that, in the absence of discovery, she would have great difficulty in dealing with the respondent's statement of opposition.


On the 22nd April, 2004, the applicant issued her notice of motion for discovery which was refused on the date mentioned above.

The High Court Judgment.

The High Court judgment, which was given ex tempore, is short enough to be set out in full:

"I have some sympathy for the case advanced by the applicant. I think that the shell into which the Director of Public Prosecutions has retreated by way of decisions of the Supreme Court is a shell which the High Court cannot penetrate. If the applicant feels strongly enough then this case can be appealed and argued before the Supreme Court. I consider that there are significant public policy considerations and that a very...

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