J. F. v DPP

• Jurisdiction: Ireland
• Judge: Macken J.
• Judgment Date: 10 June 2005
• Neutral Citation: [2005] IEHC 198
• Court: High Court
• Date: 10 June 2005

J. F. -V- DPP

JUDICIAL REVIEW

BETWEEN

J. F.

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS AND JUDGE MICHAEL REILLY

RESPONDENTS

AND

THE MIDLAND HEALTH BOARD

NOTICE PARTY

[2005] IEHC 198

[Record No. 498JR/2003]

THE HIGH COURT

Abstract:

Judicial review - Discovery - Depositions - Whether the applicant was deprived of his right to a fair trial by virtue of the refusal of the second named respondent to order the production by the notice party of documents concerning the complainant.

The applicant sought an order of certiorari quashing the decision of the second named respondent refusing to allow sight of or order production to the applicant's legal representatives of material concerning the complainant on the files of the notice party during the taking of depositions. The applicant claimed that the second named respondent erred in law or exceeded his jurisdiction in not allowing a witness called by way of sworn deposition to produce to the applicant's legal advisers relevant documents in her possession and if necessary receive the contents of same in evidence in circumstances where a subpoena duces tecum had been served upon the witness.

Held by Macken J. in refusing the application:1. That the exercise sought to be carried out by the applicant amounted to a fishing expedition because the applicant had no knowledge of the content of the files sought and further the person having charge of the file had not made a statement and was not included in the book of evidence.

2. That the applicant was not entitled, at the stage of taking depositions, to compel the witness called as his witness, to disclose the confidential contents of a file prepared and maintained by that witness as an employee of the notice party. Furthermore, the applicant failed to establish the existence of a real or serious risk to him not having a fair trial in the event that he did not receive disclosure of the files.

Reporter: L. O'S.

1 An order of certiorari quashing the decision of the second named respondent made on 13th July, 2003 at Birr District Court refusing to allow sight of or order production to the applicant's legal representatives of a document or documents in the possession of a witness during the taking of depositions pursuant to s. 7 of the Criminal Procedure Act, 1997.

2 An Order of certiorari quashing the decision of the first named respondent refusing to compel the said witness to read from the document in her possession during the taking of the said deposition.

3 An order of mandamus directing the first named respondent to allow the applicant through his legal representatives to view the file relevant to the applicant in the possession of the Notice Party and which was in Court during the said deposition hearing.

4 A declaration that the applicant, having previously served a subpoena duces tecum on a witness, could not be lawfully precluded from requiring the production of a relevant document in the witness's possession during the taking of depositions pursuant to s. 7(2) of the Criminal Procedure Act, 1967.

5 A declaration that the applicant having called a witness on deposition and having previously served a subpoena duces tecum on the witness can seek to have a document read out in Court by the witness as part of the deposition hearing pursuant to s. 7(2) of the Criminal Procedure Act, 1967.

6 An order of prohibition or such further or other order as this Honourable Court may seem fit to issue so as to preclude the learned respondent District Judge or any other District Judge from making any further or other orders concerning the applicant in respect of the various matters concerning the applicant which stand adjourned by virtue of the order of the learned respondent District Judge until 11th July, 2003 at Birr District Court.

7 An order of prohibition or such further or other order as this Honourable Court may seem fit to grant precluding the Director of Public Prosecutions from seeking to further prosecute the applicant in respect of the various matters concerning the applicant which stand adjourned by virtue of the Order of the learned respondent District Judge until 11th July at Birr District Court.

8 A Stay upon the proceedings entitled Director of Public Prosecutions v. Joseph Finnerty pending the determination of these judicial review proceedings pursuant to order 84 Rule 20(7) of the Rules of the Superior Courts.

9 Such further or other order as to this Honourable Court shall seem meet

10 An order for the costs of the proceedings.

The grounds upon which the said order was granted were as follows:

(1) Upon the ground that the applicant was deprived of his lawful right to require a witness to give evidence by way of sworn deposition during preliminary examination pursuant to s. 7(2) and 7(3) of the Criminal Procedure Act, 1967.

(2) Upon the ground that the Learned District Court Judge erred in law, exceeded his jurisdiction or acted without jurisdiction in not allowing a witness called by way of sworn deposition to produce to the applicant's legal advisers relevant documents in her possession and if necessary receive the contents of same in evidence in circumstances where a subpoena duces tecum had been served upon the witness.

(3) Upon the ground that the Learned District Court Judge erred in law and/or acted without jurisdiction in not allowing to the applicant's legal advisers the production to them of a document in circumstances where the Learned District Court Judge did not himself read the document to assess its relevance or admissibility in evidence.

(4) Upon the ground that the Learned District Court Judge erred in law and/or acted without jurisdiction in failing to direct a witness, called by way of sworn deposition to put in evidence content of a document in her possession in circumstances where the Learned District Court Judge did not himself read the document to assess its relevance or admissibility in evidence.

(5) Upon the ground that the Learned District Judge erred in law and acted without jurisdiction in failing to direct the witness to produce the document or to read it's contents because of the fact that there was no statement from the said witness in the Book of Evidence served upon the applicant pursuant to Part 2 of the Criminal Procedure Act, 1967.

(6) Upon the ground that the Learned District Court Judge erred in law and acted without jurisdiction in failing to compel the witness produce or read the document described as a referral by a social worker during the taking of her deposition on the basis that there is no third party disclosure known in the Irish Law.

(7) Upon the ground that the taking of a deposition pursuant to s.7 of the Criminal Procedures Act, 1967 is not discovery in any legal sense.

(8) Upon the ground that the Learned District Judge erred in law in holding that the defence was engaging in a fishing expedition in circumstances where the Book of Evidence disclosed evidence of other complaints of sexual misconduct being perpetrated upon the complainant.

(9) Upon the ground that the Learned District Court Judge erred in law and acted without jurisdiction in holding that the taking of the deposition was tantamount to allowing the defence engage in a fishing expedition in circumstances where the Learned Judge himself had not read the document.

(10) Upon the ground hat the Learned District Court Judge erred in law in holding that the manner of the taking of the deposition by the applicant's legal representative during the deposition hearing amounted to cross-examination.

(11) Upon the ground that the Learned District Court Judge exceeded his jurisdiction and misdirected himself as to the law of the doctrine of complaint in sexual cases and of the right of the defence to establish the fact of and content of previous inconsistent statements and further the Learned Judge exceeded his jurisdiction and erred in failing to consider such legal principles in refusing to direct the production or the testimony of the content of the material sought.

(12) Upon the ground that the Learned District Court Judge erred in law and acted without jurisdiction in holding that the functioning of the Health Board would be difficult if not impossible if the witness was to produce a document or give evidence of the contents of the document.

(13) Upon the ground that the learned District Court Judge failed to vindicate the applicants right to trial in due course of law pursuant to Article 38.1 of Bunreacht na hÉireann.

The facts in this case can be set forth very briefly since, for the most part, the issues involved are predominantly questions of law.

The applicant was arrested on 11th November, 2000, and detained pursuant to s. 4 of the Criminal Justice Act, 1984. He was released and subsequently, on 11th May, 2001, rearrested and charged with charges of sexual assault, aggravated sexual assault and false imprisonment against a female complainant. The charges are made pursuant to the Criminal Law (Rape) (Amendment) Act, 1990 and the Non Fatal Offences of the Person Act, 1997.

The applicant was subsequently served with a book of evidence and required the taking of depositions, on foot of legal advices received. In the events which occurred the decision to send forward the applicant for trial was quashed by order of this Court ( Ó Caoimh J.) on 22nd July, 2002, and the matter was remitted back to the District Court. That order is not relevant to the issues which arise in this action. A request was made, in January, 2002, for copies of relevant material on the Garda investigation file, including social work reports and materials referring to or dealing with the complainant, as well as assessments and other reports.

Between the 17th January, 2002, and the end of the year 2002 there were exchanges of correspondence between Mr. O'Neill solicitor on behalf of the applicant, and the chief prosecution...