Murray v Farrell
| Jurisdiction | Ireland |
| Judge | Ms. Justice Faherty |
| Judgment Date | 23 October 2018 |
| Neutral Citation | [2018] IEHC 707 |
| Court | High Court |
| Docket Number | [2015 No. 515 J.R.] |
| Date | 23 October 2018 |
AND
AND
[2018] IEHC 707
[2015 No. 515 J.R.]
THE HIGH COURT
JUDICIAL REVIEW
Coroner– Practice and procedure – Judicial review – Applicants seeking judicial review – Whether the practices and procedures in or about the transmission of information, evidence or statements by the second respondent to the first respondent is a practice or procedure that is grossly defective
Facts: The applicants, Mses Murray, were the sisters and surviving next-of-kin of the late Mr Murray, who was killed in his family home in Rathfarnham on 17th March, 2009. By order of the High Court (Hunt J) dated 11th September, 2015, they were granted leave to apply by way of judicial review, as against the first respondent, Dr Farrell, the Coroner for the Coroner’s District of Dublin, for, inter alia: (i) an order of certiorari quashing the refusal of the Coroner to furnish the applicants with the copy of the investigation file which the second respondent, An Garda Síochána, had furnished to the Coroner; (ii) a declaration that the practices and procedures in or about the transmission of information, evidence or statements by An Garda Síochána to the Coroner is a practice or procedure that is grossly defective, lacking in transparency and not amenable to scrutiny; (iii) an order of prohibition restraining the Coroner from holding an inquest and/or taking any further steps in an inquest into the death of Mr Murray until such time as the applicants’ legal representatives are provided with a copy of the Garda file; and (iv) a declaration that the Coroner lacks or has no jurisdiction to make decisions which involves public interest privilege and/or in the alternative if the Coroner has the requisite jurisdiction that he failed to exercise that jurisdiction in accordance with law and Article 2 of the European Convention on Human Rights, whether by itself or as incorporated into domestic law by the European Convention on Human Rights Act 2003. As against An Garda Síochána, leave was granted to the applicants to seek a number of declaratory orders, including that An Garda Síochána had wrongfully asserted a claim of public interest privilege over the investigation file the subject matter of the inquest and that the refusal of An Garda Síochána to allow the file to be used in the inquest is incompatible with Article 2 of the Convention. Leave was also given for a declaration that in the event that An Garda Síochána were entitled to assert a claim of privilege, they had not discharged the onus of establishing that there exists a sufficient public interest in the documents.
Held by Faherty J that what the applicants essentially sought in these proceedings lay outside of the Coroner’s Act 1961; this was so irrespective of whether the applicants called in aid their constitutional rights or cited Convention standards.
Faherty J held that the reliefs claimed in the notice of motion would be denied.
Reliefs denied.
The applicants are the sisters and surviving next-of-kin of the late Liam Murray, who was killed in his family home in Rathfarnham on 17th March, 2009.
The first named respondent was at all relevant times the Coroner for the Coroner's District of Dublin pursuant to the Coroner's Act 1961, as amended, (hereinafter ‘the 1962 Act’). For the purposes of the within judgment, the first respondent will be referred to as ‘the Coroner’ or Dr. Farrell. It is understood that Dr. Farrell will not be the statutory officer who will now carry out the inquest into the late Mr. Murray's death since Dr. Farrell is now retired.
The second respondent is the statutory body with responsibility for providing policing and security services in the State. The second respondent will hereinafter be referred as An Garda Síochána or ‘AGS’ or ‘the gardaí’.
Mr. Murray's murder was investigated by An Garda Síochána through Terenure Garda Station. The investigation established that the late Mr. Murray had been shot four times. It was established in the investigation that the deceased spent most of St. Patrick's Day in the company of friends at a named bar. It was established that he left that premises at 6:17pm on 17th March, 2009. His last known contact was with a friend at approximately 7:50pm. The investigation also established that some persons who lived in the vicinity of the deceased's house reported hearing possible gunshots on the night of 17th March, 2009. Mr. Murray was found deceased in his home on 20th March, 2009.
As part of the investigation, nearly nineteen hundred lines of inquiry were followed up and almost seven hundred statements were taken. A file was submitted to the Director of Public Prosecutions (DPP) in June 2013.
This file concerned two persons who had been arrested in connection with Mr. Murray's death. The DPP directed that no criminal prosecution was to be brought against those persons at that time. It is the position of An Garda Síochána that the criminal investigation remains open and that they will pursue any new avenues of inquiry that may emerge. As outlined in the affidavit sworn by Det. Inspt. George McGeary on 26th May, 2016, there was correspondence from the DPP's office to the applicants” solicitor in or about late 2013, explaining the DPP's decision.
An inquest into the death of Mr. Murray commenced in January 2012. On 13th September, 2013, the Coroner received a copy of the Garda investigation file which had been sent to the DPP by An Garda Síochána.
As outlined at para. 11 of Inspector McGeary's affidavit, the file that was provided to the Coroner was the ‘smaller’ file which had been provided to the DPP for a decision as to whether to prosecute two arrested persons. A decision was made to re-list the inquest.
On foot of the file furnished to him, the Coroner prepared initial draft depositions for the conduct of the inquest.
On 17th September, 2013, the applicants” solicitors wrote to the Coroner requesting a copy of the Garda file which had been furnished to him on 13th September, 2013.
A follow up letter with the same request was sent on 9th October, 2013.
The Coroner responded on 10th October, 2013, advising that the inquest had been listed for hearing on 15th January, 2014, and that draft depositions for the inquest would be furnished as soon as possible.
As part of fair procedures, the Coroner granted the applicants representation to participate in the inquest. Pre-hearing disclosure in the form of draft depositions, together with a copy of the post-mortem report, were duly furnished to the applicants” solicitors on 19th November, 2013. They were also advised that additional draft depositions from An Garda Síochána would be furnished on due course.
On 22nd November, 2013, the applicants” solicitors wrote to the Coroner noting the following: -
(i) There was no draft deposition from Detective Inspector McGeary who they understood had charge of the criminal investigation;
(ii) There was no draft deposition from Detective Garda Patrick Flood who the applicants understood had made a statement in relation to a previous threat which was made against Mr. Murray by a person the applicants understood to be a suspect in respect of his murder; and
(iii) The applicants believed that there should be statement from Detective Garda Billings and Detective Garda Begley and those statements should be disclosed to them and that the said gardaí should be called in the inquest.
The solicitors also requested that the Coroner issued a summons in respect of a person believed by the applicants to have been arrested and questioned by the gardaí in respect of Mr. Murray's murder.
The Coroner was advised that the first named applicant might wish to make a deposition and that same would be forwarded in advance of the hearing date.
On 28th November, 2013, the Coroner replied advising that additional statements had been sought from AGS and noting that the first applicant might wish to make a deposition. It was further advised that it was not clear from their letter what other witnesses the applicants were referring to.
The applicants” solicitor wrote again on 18th December, 2013, requesting that statements or depositions be made available to them from Detective Inspector McGeary, Detective Garda Flood, Detective Garda Billings and Detective Inspector Begley. The letter went on to state:-
‘5. We are aware of newspaper reports around the time of Mr. Murray's killing which stated that according to An Garda Síochána messages were found on Liam Murray's phone which contained threats against his life. We have no statement or deposition from anybody in relation to this matter. We wish to know whether the phone was examined by An Garda Síochána and if it was we would wish that a witness would be able to give evidence in relation to this at the inquest.
6. It is our understanding that Liam Murray made a statement in relation to the alleged threat made to him by a certain individual. We understand that a member of An Garda Síochána took this statement from Liam Murray and we believe that that member of An Garda Síochána should have a deposition in respect of the Inquest.
7. We believe there should be a statement or deposition from a [named] neighbour of Liam Murray who may have heard the shots on the night of the murder.
8. Detective Garda Tom Doyle, Detective Garda David Connolly, Sergeant Paul Carney and Inspector Tom Murphy have all made statements in relation to the investigation of Mr. Murray's murder and we believe that there should be depositions available from them.
9. There is a statement furnished to us which indicated that a silver BMW seen with persons...
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