Mr C v Judge O'Donnabhain

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 11 February 2016
• Neutral Citation: [2016] IEHC 74
• Docket Number: Record No. 2015/61JR
• Court: High Court
• Date: 11 February 2016

[2016] IEHC 74

THE HIGH COURT

Barrett J.

Record No. 2015/61JR

BETWEEN

MR C

APPLICANT

AND

HIS HONOUR JUDGE SEÁN Ó'DONNABHÁIN

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

Crime & Sentencing – Indecent assault – Order of prohibition – Want of third party disclosure – Risk of fair trial – Disclosure in criminal proceedings – S. 4L of the Criminal Procedure Act 1967

Facts: The applicant sought an order for prohibition of his trial or alternatively, an order for stay of his trial pending the release of documentation in possession of a newspaper, which published articles containing allegations of indecent assault concerning the applicant forming the basis for commencement of trial of the applicant on various counts of indecent assault.

Mr. Justice Max Barrett refused to grant the desired relief to the applicant. The Court reiterated the principles laid down by Charleton J. in K v. Moran [2010] IEHC 23 concerning prohibition applications and held that the Court should be slow to interfere with the decision of the Director of Public Prosecutions to prosecute and it was primarily the duty of the DPP to furnish all relevant evidence to the accused person. The Court observed that the trial Court had power under s. 4L of the Criminal Procedure Act 1967 to summon the editor and the journalist of the concerned newspaper and to bring the desired documentation. The Court however, cautioned that exercise of such discretion by the trial Court should be balanced against the freedom of speech and privilege granted to the media.

JUDGMENT of Mr Justice Max Barrett delivered on11th February, 2016.

Part 1: Key Issue Arising

1 Ought the court to grant an order of prohibition or stay in respect of pending criminal proceedings, given an alleged want of third party disclosure arising?

Part 2: Relevant Facts

2 Mr C faces a staggering 42 charges of indecent assault allegedly perpetrated against 14 named individuals while he was a teacher at a country school where those individuals were boarders. No trial has yet occurred but Mr C's name has already entered the public domain. He has been identified in the Oireachtas. The Irish Examiner has also published articles in which various people, some of whose names were anonymised, have recounted alleged experiences of abuse at the school where Mr C taught. It is the articles in the Irish Examiner that have led to the within application. The court sets out below a summary chronology, which indicates how matters have come to their present juncture and shows also the full background to the within application:

- in the summer of 2011, various articles were written in the Irish Examiner in relation to the allegations concerning Mr C;

- in February 2014, Mr C first appeared before Cork Circuit Criminal Court, having been sent forward for trial on various counts of indecent assault;

- in June 2014, following application being made, Judge Ó'Donnabháin indicated that disclosure should be made by the Irish Examiner and one of its journalists of such complaints as were made to that journalist by certain of the complainants in the case;

- in July 2014, it was indicated to Judge Ó'Donnabháin that the complainants were prepared to consent to disclosure of the material that was in the possession of the Irish Examiner;

- on 8th September 2014, the editor of the Irish Examiner indicated to a member of An Garda Síochána that he(the editor) would not be in a position to make disclosure of any material in the possession of the relevant Irish Examiner journalist; the editor's stated concern was the protection of “sources';

- on 28th September 2014, a member of An Garda Síochána wrote to the Irish Examiner and enquired if the Irish Examiner would be prepared to make disclosure in the event that the complainants consented;

- on 1st October, 2014, the editor of the Irish Examiner reiterated that the paper would not be in a position to make voluntary disclosure, irrespective of the position of the complainants;

- on 3rd October, 2014, Judge Ó'Donnabháin was told of the Irish Examiner's position. The learned judge was also advised by counsel for the DPP that, under our law as it stands, he could not make any order against the newspaper.[i]So the learned judge adjourned proceedings to allow Mr C to take whatever steps he saw fit.

[i] In Health Service Executive v. White [2009] IEHC 242, Edwards J. makes clear that the Circuit Court has no jurisdiction to order disclosure in a criminal case against a non-party to the proceedings, though he suggests that this is an area ripe for statutory reform, an observation echoed in the Law Reform Commission's relatively recent report on Disclosure and Discovery in Criminal Cases (2014), para.2.10.

3 What Mr C has elected to do, following on the above-mentioned adjournment, is to bring an application seeking an order of prohibition of his trial or, alternatively, an order staying his trial, pending the release of such documentation as is in the possession of the Irish Examiner, as well as certain ancillary reliefs. Mr C contends that the non-disclosure of such material as is in the possession of the Irish Examiner and/or a relevant journalist fundamentally undermines Mr C's right to a fair trial. In this regard, Mr C has drawn the court's particular attention to the fact that:

(a) all of the charges against him relate to alleged incidents claimed to have occurred between 25 and 45 years ago;

(b) the complaints against him are allegedly vague in terms of dates, times and specifics;

(c) he is now an old man of some 82 years of age;

(d) the book of evidence contains no corroborative evidence of any nature and each charge is dependent on the account given by each complainant;

(e) all of the complaints appear to date from about 2011/2012, many of them having been made as a result of publicity in the news media concerning Mr C –this Court must admit that it is at something of a loss as to why it would be contended that the fact that complaints followed such publicity is necessarily or inherently objectionable, let alone so objectionable as to offer a basis for an order of prohibition or stay; and

(f) Mr C is allegedly hampered in preparation for the trial and in defending the charges brought against him in circumstances where, because the charges are allegedly old and vague, there is an absence of any available witness who might otherwise have been available.

4 All of the foregoing needs to be read in the context of the following. The above-described chronology, and the responses of the Irish Examiner, might suggest to the reader that the Irish Examiner is possessed of voluminous documentation concerning Mr C and his case. However, it has turned out that only two of the 14 complainants whose allegations ultimately prompted the pending criminal trial (Mr JG and Mr JK)have given any account of matters to a newspaper, and those accounts are very limited in their scope. Mr JG was interviewed by the Irish Examiner but did not give a detailed narrative of his alleged experience of sexual abuse, confining himself mainly to a description of college life in general. Mr JK likewise spoke to newspaper journalists but did not give a detailed account of his sexual abuse allegations. This is not therefore a case of the type contemplated in P.G. v. DPP [2006] IESC 19 where Hardiman J. expresses the view, at 43, that ‘ an applicant in an old sex abuse case may be entitled to sight of all statements in the nature of complaints or disclosures of alleged abuse’, these being in many instances the only ‘ islands of fact’ available to an applicant. The...