Kelly v Ireland

• Jurisdiction: Ireland
• Judge: O'Hanlon J.,
• Judgment Date: 28 January 1986
• Neutral Citation: 1986 WJSC-HC 1027
• Court: High Court
• Docket Number: No. 4268P/1982
• Date: 28 January 1986

KELLY (EDWARD N) v. AG & IRELAND

BETWEEN/

EDWARD NOEL KELLY

PLAINTIFF

AND

IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

1986 WJSC-HC 1027

No. 4268P/1982

THE HIGH COURT

Synopsis:

PRACTICE

Procedure

Abuse - Criminal law - Trial - Issue - Adjudication - Estoppel - Res judicata - Subsequent civil action by accused - Attempt to re-open issue - Abuse of process of court - ~See~ Evidence, estoppel - (1982/4268 P - O'Hanlon J. - 28/1/86) - [1986] ILRM 318

|Kelly v. Ireland|

PRACTICE

Pleadings

Striking out - Estoppel - Abuse of process of court - Statement of claim - Alleged assault against plaintiff - Issue decided against plaintiff at previous criminal trial - Claim struck out and action dismissed - ~See~ Evidence, estoppel - (1982/4268 P - O'Hanlon J. - 28/1/86) - [1986] ILRM 318

|Kelly v. Ireland|

EVIDENCE

Estoppel

Issue estoppel - Res judicata - Criminal trial - Special Criminal Court - Fresh evidence - Essential issue - Admissibility of statement made by accused - Allegation that statement induced by duress of assault on accused by police - Accused's evidence not accepted by court - Decision of court that statement made voluntarily - Conviction of accused - Subsequent civil action by accused against Ireland and the Attorney General claiming damages for alleged assault by police on accused plaintiff on same occasion - Admission in plaintiff's pleadings that issue in civil action the same as issue decided against him by Special Criminal Court - Held that defendants were privies of the Director of Public Prosecutions at whose suit the criminal prosecution had been brought - Held that an estoppel could be invoked (a) in respect of the specific issue determined at the criminal trial in regard to the admissibility of the statement and (b) in respect of findings necessarily involved in that determination - Held that the plaintiff was estopped from re-opening the issue of the alleged assault upon him by police - Held that the fresh evidence adduced by the plaintiff did not reveal any basic change in the circumstances established and considered at the criminal trial - Held that the statement of claim should be struck out and the action dismissed on the ground of estoppel and on the ground that the action constituted an abuse of the process of the court - (1982/4268 P - O'Hanlon J. - 28/1/86) - [1986] ILRM 318

|Kelly v. Ireland|

CRIMINAL LAW

Trial

Issue - Adjudication - Estoppel - Res judicata - Subsequent civil action by accused - Attempt to re-open issue - Plaintiff estopped from alleging assault by police - ~See~ Evidence, estoppel - (1982/4268 P - O'Hanlon J. - 28/1/86) - [1986] ILRM 318

|Kelly v. Ireland|

Citations:

BROWN V DEAN 1910 AC 373

BRUNSDEN V HUMPHREY 14 QBD 141, 53 LJQB 476

BYRNE V IRELAND 1972 IR 241

CARL ZEISS STIFTUNG V RAYNER & KEELER LTD (NO. 2) 1967 1 AC 853

CIVIL EVIDENCE ACT 1968

CONSTITUTION ART 30.3

CONSTITUTION ART 34

CRIMINAL JUSTICE (ADMINISTRATION) ACT 1924 S9

CRIPPEN 1911 P108

DPP V HUMPHRYS 1976 2 AER 497

DUBLIN CORPORATION V FLYNN 1980 IR 357

FLITTERS V ALLFREY LR 10 CP 29

HOLLINGTON V HEWTHORN 1943 KB 587

HOYSTEAD V COMMIS OF TAXATION 1926 AC 155

HUNTER V CHIEF CONSTABLE OF WEST MIDLANDS 1981 3 AER 727, 1982 AC 529, 1981 3 WLR 906

MCILKENNY V CHIEF CONSTABLE OF WEST MIDLANDS POLICE 1980 2 AER 227

MILLS V COOPER 1967 2 AER 100

MINISTERS & SECRETARIES ACT 1924 S6(1)

OFFENCES AGAINST THE STATE ACT 1939 S30

OFFENCES AGAINST THE STATE ACT 1939 S41

OFFENCES AGAINST THE STATE ACT 1939 S41(4)

PHOSPHATE SEWAGE CO V MOLLESON 4 AC 801

POLICE ACT 1964 S48

PROSECUTION OF OFFENCES ACT 1974 S3 NO.22

R V BERESFORD 56 CAR 143

R V INHABITANTS OF HARTINGTON MIDDLE QUARTER 1885 4 E&B 780

R V HUMPHRYS 1977 AC 1

RSC O.18 r19

RSC O.86 r14

SPECIAL CRIMINAL COURT RULES 1975 SI 234/1975 r10

SPECIAL CRIMINAL COURT RULES 1975 SI 234/1975 r10(2)

SPECIAL CRIMINAL COURT RULES 1975 SI 234/1975 r25

SPENCER BOWER RES JUDICATA 1924 P9

STEPHENSON V GARNETT 1898 1 QB 677

1 Action for Damages for assault allegedly committed by members of the Garda Siochana while the Plaintiff was detained under s. 30 O.A.S. Act, 1939. Plea of issue estoppel as against the Plaintiff based on prior determination of same issue in the course of criminal trial in the Special Criminal Court. Alternative plea that civil proceedings for damages should be restrained as being an abuse of the process of the Court. Whether issue estoppel can arise in civil proceedings by reason of prior determination of issue in the course of a criminal prosecution. Whether formal proof can be given in civil proceedings of findings made against a party to those proceedings by the Special Criminal Court. Whether the Defendants are estoppel by their own course of conduct from relying on the aforesaid defences to the Plaintiff's claim for damages. Whether, if the Defendants are otherwise entitled to raise a plea of issue estoppel, they must show they are in privity with the prosecutor (the Director of Public Prosecutions) in the proceedings before the Special Criminal Court. Whether any such privity exists. Whether fresh evidence sought to be adduced by the Plaintiff was sufficient to preclude the Defendants from relying upon a plea of issue estoppel, or a plea that the civil proceedings constituted an abuse of the process of the Court.

2 Judgment delivered by O'Hanlon J.,the 28th day of January, 1986.

3 A train robbery occurred at Sallins, Co. Kildare on the 31st March, 1976. The Plaintiff, Edward Noel Kelly, was arrested under Sec. 30 of the Offences Against the State Act, 1939, on the 5th April, 1976, on suspicion of having been concerned in the holding-up of, and robbery from, the train. He was released after questioning, and later arrested and charged with offences connected with the robbery from the train. He was put on trial before the Special Criminal Court, but the first trial proved abortive. A second trial took place before the Special Criminal Court in the year 1978, and he was found guilty of the charges brought against him and was sentenced to twelve years" penal servitude in respect of each of the offences referred to in the charges.

4 An important, and probably crucial, part of the evidence against the Plaintiff in the course of the said criminal trial consisted of a statement in writing signed by the Plaintiff and alleged to have been freely and voluntarily made by him while detained by the Gardai in exercise of their powers under Section 30 of the Offences Against theState Act, 1939. During the course of the trial an application was made to the Special Criminal Court on behalf of the Plaintiff to exclude the said statement from consideration by the Court on the grounds that it had not, in fact, been made freely and voluntarily, but was made as a result of the use of unlawful force and violence by members of the Garda Siochana against the Plaintiff, together with threats and intimidation, false imprisonment, and refusal of access to a solicitor despite repeated requests by the Plaintiff for such rights of access. These allegations were denied by the Gardai involved in the detention and questioning of the Plaintiff. The matter was considered at very considerable length by the Special Criminal Court, and having heard the evidence adduced by both sides, and legal submissions by Counsel, the Court rejected the allegations made by the Plaintiff and ruled that the statement had been freely and voluntarily made by the Plaintiff and was admissible in evidence.

5 By Plenary Summons dated the 5th April, 1982, the Plaintiff commenced proceedings for damages against Ireland, the Attorney General, and 18 named members of the Garda Siochana. The cause of action was stated as "assault and battery, false imprisonment, intimidation and failure to vindicate Constitutional rights." On the 21st July 1983, Notice of Discontinuance was served on the individual members of the Garda Siochana and the proceedings continued against Ireland and the Attorney General as the only remaining Defendants.

6 A Statement of Claim was delivered on the 27th July, 1983, from which it emerged that the allegations of assault and other breaches of the Plaintiff's personal rights upon which the claim for damages was based were identical with those upon which he had relied in seeking to have his statement made to the Gardai excluded in the course of the criminal proceedings before the Special Criminal Court.

7 A Defence was delivered on the 14th December, 1983. Paragraph 12thereof refers to the prosecution of the Plaintiff before the Special Criminal Court and his conviction on the 13th December, 1978, and Paragraph 13 reads as follows:-

"13. The issues raised in these proceedings were raised and adjudicated upon in the course of the said proceedings and properly and lawfully determined beyond all reasonable doubt against the Plaintiff and the Plaintiff's claim is res judicata as between the Plaintiff and the Defendants."

8 Finally, in Paragraph 14 of the Defence, the Defendants plead that in the premises, the Plaintiff is estopped from raising or litigating the subject matter of these proceedings.

9 The Plaintiff, in his reply, dated the 6th February, 1984, commences with a general joinder of issue, and then replies particularly to the matters pleaded in Paragraphs 12, 13 and 14 of the Defence. He denies that the issues raised in these proceedings, or any of them, are matters which are res judicata as between the Plaintiff and the Defendants. There is a further plea that by reason of a Government Statement dated the 7th June, 1983, and further by reason of theDefendants" consenting to, or not objecting to, an application for renewal of the Plenary Summons, the Defendants are estopped from raising the plea of estoppel against the Plaintiff which is found in Paragraph 14 of the Defence. There is no specific denial of the plea that the issues raised in these proceedings were raised and adjudicated upon in the course of the...