Hannigan v DPP

• Jurisdiction: Ireland
• Judge: Hardiman J.
• Judgment Date: 30 January 2001
• Neutral Citation: [2001] IESC 10
• Docket Number: [S.C. Nos. 209 and 250 of 1998]
• Court: Supreme Court
• Date: 30 January 2001

HANNIGAN v. DPP & SMITHWICK

Between:

THOMAS HANNIGAN

Applicant/Appellant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

and

HIS HONOUR JUDGE PETER SMITHWICK

Respondents

[2001] IESC 10

Murray J.,

Hardiman J.,

Fennelly J.,

209/98

THE SUPREME COURT

Synopsis:

Practice and Procedure

Discovery; waiver of privilege; deficiency in form; appellant had been charged with offence of sexual assault and had sought and been granted leave to seek judicial review of decision of District Court; appellant seeks to appeal against orders of High Court relating to applications by him for discovery; appellant seeks discovery of specific document; whether where privileged material is employed in court in an interlocutory application, privilege in that and any associated material is waived; whether appellant should be entitled to have access to document to see whether it supports proposition in support of which respondent deployed it..

Held: Appeal allowed; order for the production for inspection of document.

Hannigan v DPP - Supreme Court: Murray J., Hardiman J., FennellyJ. - 30/01/2001 - [2001] 1 IR 378 - [2002] 1 ILRM 48

The applicant sought discovery of a letter emanating from the office of the Director of Public Prosecutions. Hardiman J held that disclosure of the letter should be ordered and the appeal of the applicant would be allowed.

Citations:

CRIMINAL LAW (RAPE) (AMDT) 1990 S12(1)

BREATHNACH V IRELAND (NO 3) 1993 2 IR 458

CORBETT V DPP 1999 2 IR 179

MATTHEWS & MALEK DISCOVERY (1992) PARA 9.15

NENEA KARTERIA MARITIME CO LTD V ATLANTIC & GREAT LAKES STEAMSHIP CORP 1981 CLR 139

COMPAGNIE FINANCIERE DU PACIFIQUE V PERUVIAN GUANO CO 1882 11 QBD 55

1 30th day of January, 2001 by Hardiman J. [nem diss]

2 These are two appeals (209/1998 and 250/1998) taken by the Appellant against the orders of the High Court (Mr. Justice Geoghegan) relating to applications by the Appellant in relation to discovery in these proceedings. The first order is dated the 15th July, 1998 and related to the Applicant's claim that the Respondents affidavit of discovery was deficient in form and that he was entitled on the production for inspection of the documents listed in the schedule to that affidavit, which the Respondent had objected to produce. On this application, a further affidavit was directed to be filled by the Director. The balance of the motion was adjourned to the 28th July, 1998 with a view to the Courts reading the documents in respect of which privilege and/or public interest immunity was claimed.

3 The second order, which was dated the 28th July, 1998, provided that one particular document, should be produced for inspection. The Applicant appealed this order, seeking discovery of all the documents mentioned in the schedule.

4 In the course of the hearing, the scope of the relief sought was dramatically narrowed. Dr. Whyte S.C. on behalf of the Appellant confined his application, in the end, to one additional document only. This will be referred to in more detail below. Mr. Collins B.L. also narrowed the range of the issues in the appeal by conceding the relevance of the document in question on the basis that its inclusion in the affidavit of documents sworn on behalf of the first-named Respondent was conclusive on this point.

5 In order to render comprehensible the Court's judgment on the outstanding issue, some details of the proceedings must be given.

Background

6 By summons dated the 26th September, 1996 the Applicant was charged with the offence of sexual assault against a male person. This assault was alleged to have taken place on the 23rd June, 1995. The Applicant makes numerous complaints about the manner in which this allegation was investigated, about the circumstances in which the summons was served on his mother, and about events which occurred when the complaint came before the District Court, in particular on the question of whether the charge was to be dealt with no indictment or summarily. He ventilated these complaints at great length at the hearing before the learned second-named Respondent, and when the results of this hearing were unsatisfactory to him he sought relief by way of Judicial Review.

7 By order of the High Court by Morris J. (as he then was) made the 17th February, 1997, the Applicant was granted leave to apply for an order of prohibition on two of the five grounds he put forward. The two relevant grounds are those set out at paragraph 19 (A) (2) and (5) of the statement grounding the application for judicial review. These, and especially the first, are somewhat obscurely expressed. Indeed, the first is expressed in a single sentence 31 lines long. I am satisfied however that their purport is correctly summarised in the submissions on behalf of the first-named Respondent as follows:-

8 • - That the first-named Respondent was guilty of oppression in withholding his consent to the summary disposal under Section 12(1) of the Criminal Law (Rape) (Amendment) Act, 1990of the charge of sexual assault laid against the Appellant unless he were to plead guilty to the said offence in the District Court;

9 • - That there had been a pattern of abuse of process and fundamental unfairness amounting to oppression and a denial of the right of constitutional justice.

10 Since this matter will proceed to hearing in the High Court, it is desirable that I should say no more than is necessary on these grounds and the factual matters said to support them. However it is appropriate to say that the first point relates to the question of whether the offence will be dealt with summarily or on indictment. The Appellant says that it is wrong of the Director of Public Prosecutions to make his consent to summary disposal conditional on the plea of guilty. He claims that the Director changed his position on this matter in the course of proceedings before the District Court. Superintendent P.J. Brennan, in his affidavit sworn the 18th June, 1997, at paragraph 15:-

"Although there was some initial confusion regarding the matter, the Director of Public Prosecutions was not consenting to summary disposal of the matter pursuant to section 12 (1) of the Criminal Law Rape Act, 1981as ammended".

11 Earlier in the Affidavit, in setting out the history of the matter the same deponent said at paragraph 9:-

"On the 29th May, 1996 a letter was received from the Director of Public Prosecutions containing directions...