J.F. v Reilly

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 26 July 2007
• Neutral Citation: [2007] IESC 32
• Docket Number: [S.C. No. 300 of
• Court: Supreme Court
• Date: 26 July 2007

[2007] IESC 32

THE SUPREME COURT

Denham J.

Geoghegan J.

Finnegan J.

300/05

F (J) v JUDGE REILLY & DPP

IN THE MATTER OF AN APPLICATION

SEEKING JUDICIAL REVIEW

BETWEEN/

J. F.

Applicant/Appellant

and

JUDGE MICHAEL REILLY AND THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondents

and

THE MIDLAND HEALTH BOARD

Notice Party

DPP v SWEENEY: SWEENEY v RAPE CRISIS CENTRE & DPP 2001 4 IR 102 2002 1 ILRM 532 2001 8 2166

H (D) v GROARKE & DPP 2002 3 IR 522 2002 12 2955

CRIMINAL JUSTICE ACT 1999

CRIMINAL PROCEDURE ACT 1967 S7(2)

HAUGHEY, IN RE 1971 IR 217

MURPHY v DUBLIN CORPORATION 1972 IR 215

CRIMINAL PROCEDURE ACT 1967 S7

CRIMINAL PROCEDURE ACT 1967 S8

CRIMINAL PROCEDURE ACT 1967 S15

CRIMINAL LAW

Disclosure

Deposition procedure - Whether entitlement to oblige witness outside book of evidence to disclose documents - Whether disclosure exercise to be carried out by judge - People (DPP) v Sweeney [2001] 4 IR 102 and DH v Judge Groarke [2002] 3 IR 522 followed - Criminal Procedure Act 1967 (No. 12), ss. 7, 8 and 15 - Applicant's appeal dismissed (300/2005 - SC - 26/7/2007) [2007] IESC 32

F(J) v Judge M Reilly

the applicant considered it necessary to obtain Midland Health Board reports which at that time were not in the possession of the Director of Public Prosecutions. The complainant made statements to the health board in a sex case such statements which were in their possession. The health board considered these reports "privileged". The applicant sought judicial review as to whether sight of documents in the possession of third parties where such access is with reason considered by the accused's legal advisers to be necessary to ensure a fair trial. Further issues arose as to whether a distinction could be made between state or state funded third parties and other third parties. An issue of confidentiality also arose. This was an appeal against a refusal by the High Court to grant certiorari, mandamus, prohibition and certain declarations of judicial review.

Held It was held that the deposition procedure and the civil discovery procedures were not appropriate methods for resolving the difficulty of obtaining information from a third party. The application for judicial review was refused.

Reporter: E.C.

1 JUDGMENT of Mr. Justice Geoghegan delivered the 26th day of July 2007

2 In the background to this appeal is a most important legal issue which has never been fully considered by the courts of this jurisdiction. That is the question of the right (if any) of an accused to production or at least sight of documents in the possession of third parties where such access is with reason considered by the accused's legal advisers to be necessary to ensure a fair trial. There are different aspects to this problem. There is the question of whether there can ever be such legal access without the permission of the relevant third party. There is the question of whether a distinction might be made between state or state funded third parties and other third parties and then particularly in the context of statements made by a complainant in a sex crime case in the possession of a health board, as to whether there would be a countervailing duty of confidentiality. Misconceived attempts have been made to get around these difficulties. One of them has been the attempted invoking of the Rules of the Superior Courts relating to the discovery of documents. In two decisions of this court ( The People (DPP) v. Sweeney) [2001] 4 I.R. 102 and DH v. Judge Groarke [2002] 3 I.R. 522 (the latter being a decision of a five judge court) it has been held that the rules relating to discovery of documents and in particular the rules relating to third party discovery in the Rules of the Superior Courts do not apply to criminal trials. For the reasons explained by Keane C.J. in the latter judgment the original regime of discovery of documents between parties and the later regime of third party discovery contained in the Rules of the Superior Courts were not intended to apply to criminal trials and are not appropriate having regard to the underlying purpose of those rules. It was made clear, however, by this court that its decisions in those cases were not in any way diminishing the obligations of the prosecution as to disclosure which is a quite different concept. That obligation of the prosecution has been traditionally viewed by the Director of Public Prosecutions as logically confined to documents within his possession or lawful procurement. It may be arguable as to whether this is too narrow a view of the Director of Public Prosecutions's obligations. Certainly, the guidelines of the Attorney General of England and Wales relating to disclosure seems to suggest a rather wider obligation in that jurisdiction. This whole problem has been coped with in different ways in the jurisdictions of England and Wales, Canada, New South Wales and the USA and no doubt elsewhere also. There are areas still to be explored but as in the case of invoking the discovery procedures under the Rules of the Superior Courts, I am quite satisfied, as was the learned trial judge, Macken J. in this case that availing of deposition procedure is no solution. That is the only issue which arises in this appeal and it is the only issue I intend to address.

3 The appeal is an appeal against a refusal by the High Court to grant certain orders of certiorari, mandamus and prohibition and certain declarations by way of judicial review. Essentially, what happened was that the legal advisers of the appellant who was charged with sexual offences, considered it important to obtain Midland Health Board reports which at that time were not in the possession of the Director of Public Prosecutions. These reports were considered by the health board to be "privileged" in the loose sense that they were confidential reports relating to the complainant and perceived by the Board as being reports of interviews of a therapeutic nature.

4 When the appellant was originally charged, his former solicitors, on his instructions, argued that the case pre-dated the provisions of the Criminal Justice Act, 1999 and that it was still governed by the Criminal Procedure Act, 1967 and, therefore, involved the full preliminary examination. Furthermore, the said solicitors on instructions requested that there be depositions pursuant to section 7(2) of that Act. The District Court judge rejected the submission and sent the case forward for trial to the Central Criminal Court under the 1999 Act. However, there was a successful judicial review in the High Court it being held that the Criminal Procedure Act, 1967 did apply. At this stage the appellant had engaged his current solicitor, Mr. O'Neill, who wrote to the Chief Prosecution Solicitor prior to the case being remitted to the District Court seeking copies of all undisclosed statements and in particular requiring "all copies of all relevant material on garda investigation file, including all social work reports and material referring or dealing with the complainant". Other correspondence then ensued and some months later Mr. O'Neill wrote to the Chief Prosecution Solicitor seeking "all social work, psychological and other assessments and reports pertaining to the alleged victim in this case who we understand as a minor was for some time living in a sexual relationship with an adult male" and also seeking "all relevant health board and other social work reports pertaining to the family of the alleged...