O'Flynn v District Judge Smithwick

• Jurisdiction: Ireland
• Judge: Mr. Justice Costello
• Judgment Date: 01 January 1993
• Neutral Citation: 1993 WJSC-HC 1207
• Docket Number: [1992 No. 294JR]
• Court: High Court
• Date: 01 January 1993

1993 WJSC-HC 1207

THE HIGH COURT

No. 294 J.R./1992

O'FLYNN v. SMITHWICK

BETWEEN:

KIERAN O'FLYNN

Applicant

and

DISTRICT JUSTICE PETER SMITHWICK AND THE DIRECTOR OFPUBLIC PROSECUTIONS

Respondents

Citations:

CRIMINAL PROCEDURE ACT 1967 S6

CRIMINAL PROCEDURE ACT 1967 S7(2)

CRIMINAL PROCEDURE ACT 1967 S7(1)

CRIMINAL PROCEDURE ACT 1967 S6(2)

CRIMINAL PROCEDURE ACT 1967 S7

WILLIAMS, STATE V KELLEHER 1983 IR 112

CRIMINAL PROCEDURE ACT 1967 S6(1)(d)

CRIMINAL PROCEDURE ACT 1865

DPP V TAYLOR 1974 IR 97

PRICE V MANNING 1889 42 CH D 372

CRIMINAL PROCEDURE ACT 1967 PART II

RSC O.84 r22(4)

BASTIN V CAREW 1825 3 B & C 649, 2 DOW & RY MC 563

Synopsis:

CRIMINAL LAW

Indictable offence

Charge - Examination - District Court - Powers - Exercise - Witnesses - Examination on deposition - Fair procedures - Cross-examination of hostile witness - Criminal Procedure Act, 1865 - (1992/294 JR - Costello J. - 21/12/92)1993 3 I.R. 589 1993 ILRM 627

|O'Flynn v. Smithwick|

1 Judgment of Mr. Justice CostelloDelivered the 21st day of December 1992

2 The applicant in these judicial review proceedings along with seven others was charged with a number of very serious indictable offences including shooting with intent to cause grievous bodily harm. A preliminary hearing of these charges was held on the 5th August 1992 and on subsequent days by the learned President of the District Court, Judge Smithwick, the first named respondent herein (hereinafter "the Respondent"), under Part II of the Criminal Procedure Act, 1967, Section 5 of the Act requires the prosecutor to serve certain documents on each accused, namely a statement of the charges, a copy of the sworn information, a list of witnesses proposed to be called at the trial, a statement of the evidence to be given by each of such witnesses and a list of exhibits. These documents (usually compendiously called the Book of Evidence) were served in the usual way on the applicant herein. But section 7(2) of the Act makes provision for evidence to be taken on sworn deposition at the request of either the prosecution or an accused. It provides:

"The prosecutor and the accused shall each be entitled to give evidence on sworn deposition and also to require the attendance before the justice of any person whether included in the supplied list of witnesses or not, and to examine him by way of sworn deposition." (emphasis is added).

3 Section 7(1) provides that the justice who is holding the preliminary examination shall consider the documents served under section 6 and the depositions taken under sub-section (2) and if he is of the opinion that there is a sufficient case to put the accused on trial then under section 8 he sends him forward for trial.

4 Section 7(2) was operated in this case at the instigation of the State Solicitor. In these proceedings the applicant criticises the procedures adopted in respect of three witnesses who were required to give evidence on sworn deposition, Gillian Kenneally, her sister Sandra Kenneally, and John Dorgan. The applicant's solicitor wrote to the State Solicitor on the 23 July 1992 asking for a list of the witnesses to be examined under section 7 and for "copies of any memo's, statements etc. which will be referred to in the depositions". The State Solicitor replied on the 29 July giving a list of 11 witnesses to be called. In relation to Gillian Kenneally, to Sandra Kenneally and to John Dorgan he sent a copy of a "memo" indicating that in each case there was no statement available. The memos that were sent were notes taken by members of the Garda Siochana of information given to them by each of the witnesses in the course of interviews they had conducted.

5 Each of the three witnesses to which I have referred were called before the Respondent. In respect of each, after some questioning had taken place, an application was made by the State Solicitor to have the witnesses treated as hostile. In each case the learned President acceded to the request and in each case questioning by means of cross-examination by the State Solicitor then took place. It is these procedures which are impugned in these proceedings. On the 19th October 1992 the applicant applied ex-parte for orders of prohibition, mandamus and declaratory relief by way of judicial review.The proceedings were grounded on a Statement of Grounds and an affidavit of the applicant's solicitor. Leave to institute proceedings (by way of notice of motion) in accordance with the grounds in paragraph (e) 1 to 6 of the grounds of objection was granted. The Director of Public Prosecutions was joined with the President and on their behalf grounds of opposition under Order 84 Rule 22(4) and an affidavit from the State Solicitor, who prosecuted the case in the District Court, sworn on the 23rd November were filed.

6 The grounds of complaint as advanced by the applicant's counsel on the hearing are, in brief summary, as follows:

7 (1) The respondent erred in allowing the witnesses to be treated ashostile.

8 (2) He allowed questions to be asked of each of the witnesses on matters which were not included in the memos of their interviews which were forwarded to the applicant's solicitor.

9 (3) That as no signed statements from the witnesses (as distinct from memoranda of verbal statements made by them in the course of interviews) were available their evidence should not have been taken under section 7(2).

10 (4) In the case of Sandra Kenneally the Respondent improperly instituted contempt proceedings against her arising from the manner in which she answered the questions she was asked.

11 An examination of the applicant's submissions should begin with a consideration of section 7(2) of the 1967 Act. The construction of the Section itself presents no difficulties. The prosecutor or an accused may require the attendance of a witness before the justice conducting the preliminary inquiry and examine him by way of sworn deposition. There is no requirement under the section that the party requiring the attendance of the witness should forward a statement to the other side, either signed or unsigned, of the evidence to be given. And so, there is nothing in the section to prohibit either the prosecution or an accused from requiring the attendance of a known eye-witness to a crime who has refused to be interviewed by either the gardai or an accused. This means that the section does not prevent the prosecution from questioning a witness under the sub-section on matters of which no notice has been given to an accused.

12 But the operation of the section is subject to the constitutional requirement that proceedings under it be fair. Where an accused has no pre-knowledge of a...