Traynor v Her Honour Judge Katherine Delahunt and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Bryan McMahon
• Judgment Date: 31 July 2008
• Neutral Citation: [2008] IEHC 272
• Court: High Court
• Docket Number: [2006 No. 375 JR]
• Date: 31 July 2008

[2008] IEHC 272

THE HIGH COURT

[No. 375 J.R./2006]

Traynor v Judge Delahunt & Ors

JUDICIAL REVIEW

BETWEEN

JUNE TRAYNOR

APPLICANT

AND

HER HONOUR JUDGE CATHERINE DELAHUNT, THE DIRECTOR OF PUBLIC PROSECUTIONS AND THE GARDA SÍOCHÁNA COMPLAINTS BOARD

RESPONDENTS

Z v DPP 1994 2 IR 476

MCFARLANE v DPP 2007 1 IR 134

DPP v SWEENEY 2001 4 IR 102

H (D) v GROARKE 2002 3 IR 522

DPP v SPECIAL CRIMINAL COURT & WARD 1999 1 IR 60

DPP v KELLY 2006 3 IR 115

GARDA SÍOCHÁNA COMPLAINTS ACT 1986 S4(3)(a)

GARDA SÍOCHÁNA COMPLAINTS ACT 1986 S6

WARD v SPECIAL CRIMINAL COURT & DPP 1999 1 IR 77

J (B) v DPP 2003 4 IR 525

PEOPLE, DPP v K (G) UNREP CCA DENHAM 6.6.2002 2002/9/2100

ABRAHAMSON, DWYER, FITZPATRICK DISCOVERY & DISCLOSURE 1ED 2007 238

MURPHY v DUBLIN CORPORATION 1972 IR 215

BREATHNACH v IRELAND (NO 3) 1993 2 IR 458

AMBIORIX LTD v MIN FOR ENVIRONMENT 1992 1 IR 277

DODD v DPP UNREP HIGH MCGOVERN 13.3.2007 2007/15/2999

GARDA SÍOCHÁNA COMPLAINTS ACT 1986 S12

GARDA SÍOCHÁNA COMPLAINTS ACT 1986 S12(1)

FYFFES PLC v DCC PLC & ORS 2005 1 IR 59

SCIENCE RESEARCH COUNCIL v NASSÉ 1980 AC 1028

O'CALLAGHAN v MAHON & ORS (PLANNING TRIBUNAL) 2006 2 IR 32

HANNIGAN v DPP & SMITHWICK 2001 1 IR 378

G (P) v DPP UNREP SUPREME FENNELLY 29.3.2006 2006/26/5503

PRACTICE AND PROCEDURE

Disclosure

Criminal prosecution - Whether fair procedures require disclosure of documents in criminal proceedings - Privilege - Whether DPP should disclose documents - Public interest - Entitlement to disclosure of certain documents and reports - Whether DPP can claim public interest privilege over certain documents - DPP v Special Criminal Court [1999] 1 IR 60, People (DPP) v Kelly [2006] IESC 20, [2006] 3 IR 115, PG v DPP [2006] IESC 19, (Unrep, SC, 29/3/2006), BJ v DPP [2003] 4 IR 525, DPP v GK (Unrep, CCA, 6/6/2002), Murphy v Corporation of Dublin [1972] IR 215, Ambiorix Ltd v Minister for the Environment (No 1) [1992] 1 IR 277, Breathnach v Ireland (No 3) [1993] 2 IR 458, Fyffes plc v DCC plc [2005] IESC 3, [2005] 1 IR 59 and O'Callaghan v Mahon [2005] IESC 9, [2006] 2 IR 32 followed - Disclosure ordered (2006/375JR - McMahon J - 31/7/2008) [2008] IEHC 272

Traynor v Judge Delahunt

1 Mr. Justice Bryan McMahon the 31st day of July. 2008

Introduction

2 The central issue in this case is whether the applicant is entitled to disclosure of certain documents and reports sent by the Garda Síochána Complaints Board ("GCB") to the Director of Public Prosecutions which she claims may assist her in defending herself in a criminal trial. Closely related to this is the issue as to whether the applicant is entitled to discovery of similar documentation held by the GCB relating to the same matter. The applicant also claims this as an entitlement.

3 The background is that on 31 ^st March, 2003, a public order incident occurred at Ballyogan Crescent, Dublin, involving a number of people. The gardaí were called to the disturbance. One of the gardaí, Garda Ian Gillen, called to the scene was involved in an altercation with the applicant's daughter and when the applicant tried to intervene she alleges that she was assaulted by the garda in question. The applicant's daughter was arrested. Subsequently, the applicant made a complaint to the Garda Complaints Board about the conduct of Garda Ian Gillen. The Board investigated the complaint and having held that the complaint was admissible, completed its investigation and sent a "report" to the Director of Public Prosecutions. The Director of Public Prosecutions decided eventually not to prosecute the garda. The Garda Complaints Board stated that having regard to the decision of the Director of Public Prosecutions it too had concluded with the matter.

4 Thereafter, on 29 ^th September, 2003, a day under six months after the incident occurred, and the last day for doing so, Garda Ian Gillen applied for the issuance of summonses against the applicant in which the applicant was to be charged with assault and violent disorder. The prosecution of the applicant proceeded through the District Court. At one stage, the prosecution was struck out but the applicant was recharged and the matter was eventually sent forward to the Dublin Circuit Criminal Court. At the call over of cases in the Circuit Court the applicant sought disclosure, both from the Director of Public Prosecutions and from the Garda Complaints Board, of all material generated from the Complaints Board's investigation of the matter. Both parties resisted all disclosure except the statement of complaint made by the applicant herself to the Board and the findings of the Board itself, both of which were sent to the applicant. On the Director of Public Prosecution's assurance that it was not going to rely on any of the said documentation in its case, the Circuit Court judge refused to make any order of disclosure against either party.

5 The applicant brings these proceedings by way of judicial review, leave having been granted by Peart J. on 27 ^th March, 2006. She seeks various orders quashing the Circuit Court Judge's order and seeks other orders the effect of which would be to oblige the GCB and the Director of Public Prosecutions to disclose the relevant documents to the applicant. If the court is not disposed to grant the applicant such orders, the applicant submits that the court should prohibit further prosecution of the applicant by the Director of Public Prosecutions.

The Applicant's Claim

6 The applicant argues that unless she gets the orders for discovery or disclosure there is a real risk that she will not get her constitutional right to a trial in due course of law or to a fair trial. This latter right should supersede any right which the GCB or the Director of Public Prosecutions advance on confidentiality grounds, as well as supporting a decision to quash the Circuit Court Judge's refusal.

7 The second respondent resists the application on the following grounds:-

8 1. Where, as here, an accused person seeks to have a trial prohibited, he or she bears the onus of satisfying the court that he or she runs a real or serious risk of not getting a fair trial. Furthermore, the onus of proof is on the accused person to establish this ( Z v. Director of Public Prosecutions [1994] 21.R. 476 at p. 506). Moreover, it is not sufficient for a person seeking such a prohibition to baldly assert that by reason of some factor, for example delay, lost evidence or failure to have sight of certain documentation, as here, he or she cannot get a fair trial. In the words of the Supreme Court, the applicant must engage with the evidence in order to demonstrate how the matter complained of creates a real or serious risk of an unfair trial. ( McFarlane v. Director of Public Prosecutions [2007]1 I.R. 134 at p. 142 per Hardiman J.) The second respondent submits that the applicant has failed to discharge this onus in the present case.

9 2. While the applicant couches the application in terms of seeking disclosure of disputed documentation, the second respondent submits that in reality what she is seeking is discovery of material within the possession or procurement of the third named respondent. The second respondent argues that it is well established that discovery against third parties is not available in criminal proceedings. ( The People (Director of Public Prosecutions) v. Sweeney [2001] 41.R. 102; D.H v. Groarke [2002] 3 I.R. 522).

10 3. While the applicant is clearly entitled in criminal proceedings to disclosure of certain documents from the prosecution, this obligation only applies to relevant material within the possession, power or procurement of the prosecution. The second respondent argues that the material sought by the applicant is not within its possession, power or procurement.

11 The principle arguments advanced on behalf of the third respondent can be briefly summarised as follows:-

12 1. The Board is not a party to the criminal proceedings and is not subject to any obligation of disclosure in the said criminal proceedings.

13 2. The Board submits that the applicant is attempting to obtain what is effectively third party discovery from the Board. The applicant, as a party in criminal proceedings, has no legally enforceable right or statutory entitlement to disclosure from a non-party to those proceedings.

14 3. The Board pleads that the statements gathered by it during the course of an investigation, and the investigating officer's report, must remain confidential irrespective of the outcome of the Board's investigation. Were such statements to lose the protection of confidentiality in instances where subsequent action was not taken, the policy and public interest rationale underpinning such confidentiality would be completely undermined. The disclosure of documents pertaining to the investigation of the complaint would frustrate the functioning of the Board.

15 4. Equally, the Board submits that the Director of Public Prosecutions is under a duty not to disclose any documents in its possession (if any) relating to the complaint or the investigation having regard to the public interest in maintaining the Board's obligation of confidentiality.

16 5. Further, the Board has no knowledge of the relevance or otherwise of the material sought to the applicant's criminal trial. This, it is respectfully submitted, is a matter for the trial judge. If the trial judge decided that the material was not relevant as it was not going to be relied upon by the prosecution (as alleged in para. 26 of the first affidavit of June Traynor, the applicant), then the High Court should not set aside this decision which was not in excess of jurisdiction, biased, unreasonable or irrational.

17 6. The Board denies that the failure to disclose the documents sought will...