H (D) v Groarke & DPP

• Jurisdiction: Ireland
• Judge: Keane C.J.
• Judgment Date: 31 July 2002
• Neutral Citation: [2002] IESC 63
• Court: Supreme Court
• Docket Number: [S.C. No. 153 of 2001]
• Date: 31 July 2002

[2002] IESC 63

THE SUPREME COURT

Keane C.J.

Murphy J.

Murray J.

Geoghegan J.

Fennelly J.

153/01

H (D) v. GROARKE & DPP

BETWEEN:

D.H.

APPLICANT

AND

HIS HONOUR JUDGE RAYMOND GROARKE AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

AND

THE NORTH EASTERN HEALTH BOARD AND S.H.

NOTICE

PARTIES

Citations:

SWEENEY V RAPE CRISIS CENTRE & DPP 2002 1 ILRM 532

BRAY THE PRINCIPLES & PRACTICE OF DISCOVERY 1885

MATTHEWS & MALEK ON DISCOVERY

JUDICATURE (IRL) ACT 1877 S3

RSC O.125 r1

CONLON V KELLY & DPP & SMYTH 2001 2 ILRM 198

RSC O.49 r6

DPP V FLYNN & KEELY 1996 ILRM 317

DPP V S K UNREP CIRCUIT 14.12.1999

AG & ANOR V RYANS CAR HIRE LTD 1965 IR 642

MOGUL OF IRELAND V TIPPERARY NR CO COUNCIL 1976 IR 260

NOLAN V IRISH LAND CMRS 1981 IR 23

Synopsis:

PRACTICE AND PROCEDURE

Discovery

Criminal law - Appeal - Whether court has jurisdiction to make order of discovery in criminal proceedings - Whether fair procedures requires discovery of documents in criminal proceedings (80/2001 - Supreme Court - 31/7/2002)

H (D) v Groarke - [2002] 3 IR 522

Facts: (Keane CJ: Murphy, Murray, Geoghegan and Fennelly JJ concurring) the appellant was returned for trial in the Circuit Court on various charges of indecent assault. He then sought an order of discovery against the second respondent and the first notice party of documents which he said were necessary for the proper determination of matters in issue between him and the second respondent. The first respondent refused to grant the order sought. The appellant then applied to the High Court to judicially review that decision of the first respondent, which application was refused. The appellant then appealed that decision of the High Court.

Held in dismissing the appeal that, in the case of the rules of the court dealing with discovery, to treat the word "cause" used therein as extending to criminal proceedings would be repugnant to the context in which it was being used. That discovery in the form provided for in the rules for civil litigation was not available in criminal proceedings did not have as a necessary consequence an erosion of fair procedures to which defendants were entitled. The first respondent had no jurisdiction to make the order of discovery sought.

1 31st day of July, 2002, byKeane C.J.

Keane C.J.

2 The applicant has been returned for trial in the Circuit Court on charges that on various dates between June 1983 and June 1989 he committed offences of indecent or sexual assault on the second named notice party, S.H., (hereafter, "the complainant") at various locations. The complainant was aged between six and twelve years at the time of the alleged offences. In a statement by her contained in the book of documents, she gives details of a number of acts of a sexual nature which she says were committed upon her by the applicant at a time when he had a relationship with her (the complainant's) mother. In her statement, the applicant says that she became pregnant at the age of 16, but that the applicant was not the father. She said that at the time she became pregnant, she had dealings with a social worker, Marian Durand, in the employment of the first named notice party, (hereafter "the health board"). She made a complaint to the gardaí as to the alleged offences on the 5th September 1997.

3 There were also statements by the social worker, Marian Durand, and another social worker who also dealt with the complainant, Monica Faulkner. The solicitor for the applicant required the presence of both the social workers at the preliminary examination in the District Court on the 12th May 1999 and examined them on oath. In their depositions they refer to notes which they made of their conversations with the complainant.

4 On the 20th July 1999, a notice of motion was served on behalf of the applicant in which the Director of Public Prosecutions was named as the respondent and the Health Board as the notice party- The notice of motion sought an order

"requiring the respondent and the notice party to make discovery of and furnish to the solicitor for the applicant all reports, notes and records in respect of any and all allegations of sexual/indecent assault of [the complainant] which are or were in the possession or power of the [health board], its servants or agents".

5 It was grounded on an affidavit by the solicitor for the applicant in which he exhibited a letter to the health board seeking copies of the documents referred to in the notice of motion and said that he was advised by counsel that they were necessary "for the proper determination of the matters in issue as between the applicant and the DPP."

6 The application was heard by the first named respondent (hereafter "the Circuit Judge"), the granting of the order sought being opposed by the Director of Public Prosecutions and the Health Board. The Circuit Court judge refused the application. First, he said that it had not been suggested that there was any reason to believe that the documents in question disclosed the existence of allegations by the complainant of sexual assaults upon her by persons other than the applicant, which might, if they existed, be used for the purpose of advancing a defence that the complaints were fabricated. Secondly, he considered that he was bound to have regard to the public interest in ensuring that confidential communications in cases of this nature to a health board remained confidential, unless their disclosure was required by the public interest in the administration of justice. Since the applicant had not satisfied him that there was any ground for supposing that the notes or memoranda made by the two named social workers or other employees of the health board who had dealings with the complainant contained any material which would be of any assistance to the applicant in the conduct of his defence, it followed that the public interest in ensuring that a health board treated as confidential sensitive material of this nature had to be upheld.

7 The Circuit Court judge also commented that in any event all documentation of the nature sought as was available had already been produced under oath in the course of the taking of depositions. It was urged in this court that he was not correct in so holding and, while the relevant documentation in the books of appeal is confusing and, to some extent, indecipherable, it would appear that the two social workers referred to notes or diary entries relevant to the complainant which they did not have with them when making their depositions. However, the essential reason for the decision of the Circuit Court, as recorded in the transcript of the hearing which was available to us, was that the applicant was not entitled in advance of the trial to obtain the material sought from the health board.

8 The applicant then applied to the High Court for leave to apply by way by way of an application for judicial review for a number of reliefs including

9 (1) an order prohibiting the Director of Public Prosecutions from proceeding with the prosecution;

10 (2) an order of certiorari quashing the order of the Circuit Court judge refusing the application for discovery;

11 (3) a declaration that the applicant was entitled to be furnished with all documents in respect of the allegations the subject matter of the prosecution which were in the possession or power of the health board.

12 A statement of opposition having been filed on behalf of the DPP and the health board, the judicial review proceedings came on for hearing before O'Neill J.

13 In the interval there had been two relevant developments. First, the complainant gave her consent to the furnishing of the relevant documents by the health board to the applicant's solicitors. Secondly, an affidavit was filed on behalf of the health board by Denis Cahalane, an employee of that body, which set out nine documents which he described as documents that could be the subject of discovery in the proceedings. In addition to notes, reports etc., by the two social workers already mentioned, they consisted of a record of a visit to the home of the complainant and a telephone call from a juvenile liaison officer.

14 In an extempore judgment, the learned High Court judge dismissed the applicant's claim. At the outset, he said that counsel for the applicant had indicated that the applicant was seeking declaratory relief rather than certiorari. The trial judge was of the view that granting the declaratory relief would amount to a collateral attack on the order of the Circuit Court judge, which would not be appropriate: his order could be set aside only by way of appeal or in judicial review proceedings. He was also of the view that there was no ground for setting aside the order of the Circuit Court judge in judicial review proceedings, since he had arrived at a considered decision on a matter within his jurisdiction and without any breach of fair procedures. He also commented that, since the complainant had now indicated her assent to the documents being furnished and the Health Board had disclosed what documents were in their possession, the appropriate procedure was for the applicant to make an application for further and better discovery in the Circuit Court.

15 From that judgment and order, the applicant now appeals to this court. In the meantime, however, there has been another important development. On the 9th October 2001, in Derek Sweeney -v- The Rape Crisis Centre and Ors. (unreported; judgments delivered 9th October 2001), this court held that the High Court had no jurisdiction to make an order for third party discovery in criminal proceedings. In the written submissions lodged on behalf of the applicant in the present case, it was made clear that, on the oral hearing of the appeal, the court would be urged to depart from its earlier...