Wayne Nash v DPP

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 22 July 2021
• Neutral Citation: [2021] IEHC 522
• Court: High Court
• Docket Number: [2020 No. 663 JR]

Between

Wayne Nash

Applicant

and

The Director of Public Prosecutions

Respondent

[2021] IEHC 522

[2020 No. 663 JR]

THE HIGH COURT

Digital audio recording – Declaratory relief – Proportionality – Applicant seeking a declaration that he was entitled to a copy of any recording of the evidence given by certain named persons on 7th September 2020 in Tullamore District Court – Whether the refusal of the District Judge to order the release of the digital audio recording was unreasonable and/or disproportionate

Facts: The applicant, Mr Nash, by notice of motion of 24th September 2020, sought the following principal reliefs: (i) an order of prohibition or an injunction preventing the respondent, the Director of Public Prosecutions, from prosecuting the applicant for an offence contrary to s. 6 of the Criminal Justice (Public Order) Act 1994 alleged to have been committed in a named hotel on 13th January 2019; (ii) a declaration that Mr Nash was entitled to a copy of any recording of the evidence given by certain named persons on 7th September 2020 in Tullamore District Court; (iii) a declaration that the proposed criminal proceedings against Mr Nash, without access to such recordings, were contrary to law, natural justice, constitutional justice, and fair procedures; (iv) a declaration that the refusal of the District Judge to provide the digital audio recording (DAR) of Mr Keogh’s hearing to Mr Nash was contrary to law. The applicant was aware that inconsistencies in witness evidence had been cited by a judge as a reason for dismissing a prosecution arising from the same facts. Mr Nash submitted that he was entitled to be able to rely on earlier statements, should they prove inconsistent with the evidence given viva voce during the hearing of his case and the only way he could prove such statements were made was if he had access to the DAR. He submitted that, in refusing access to the DAR, the District Judge erred in grounding that refusal on the basis that the applicant could have attended Mr Keogh’s hearing; the applicant, who did attend Mr Keogh’s hearing could not give evidence of what was said during that hearing without opening himself to cross-examination on all other matters. Mr Nash submitted that the ruling, and the basis for it, set the right to silence at nought and given the relative ease with which DAR records can be generated and transferred, the refusal of the District Judge to order the release of the DAR was unreasonable and/or disproportionate.

Held by the High Court that the right to challenge one or more of the State’s intended witnesses as to prior inconsistent statements is an aspect of the fundamental right to a fair trial in due course of law and the procedure for exercising this right is contained in ss. 4 and 5 of the Criminal Law Procedure Act 1865. In the particular circumstances of the proceedings, regardless of the timing of the application for the DAR, it seemed to the Court that Mr Nash would suffer prejudice and would be deprived of his constitutional right to a fair trial in due course of law if subjected to trial in the absence of the DAR being made available to materially aid in his defence. Given the relative ease with which DAR records can be generated and transferred, the refusal of the District Judge to order the release of the DAR appeared to the Court to be unreasonable and/or disproportionate in the circumstances presenting.

The Court held that it would suffice to issue relief (ii) as stated in the notice of motion. The Court did not consider that Mr Nash was entitled to relief (i).

Relief granted in part.

Summary

These are successful judicial review proceedings arising from a refusal of the District Court to allow the release of the digital audio recording (DAR) of certain District Court proceedings. This summary forms part of this Court's judgment.

JUDGMENT of Mr Justice Max Barrett delivered on 22 ^nd July 2021 .

1 . By notice of motion of 24 ^th September 2020, Mr Nash seeks the following principal reliefs: (i) an order of prohibition or an injunction preventing the DPP from prosecuting the applicant for an offence contrary to s.6 of the Criminal Justice (Public Order) Act 1994 alleged to have been committed in a named hotel on 13 ^th January 2019; (ii) a declaration that Mr Nash is entitled to a copy of any recording of the evidence given by certain named persons on 7 ^th September 2020 in Tullamore District Court; (iii) a declaration that the proposed criminal proceedings against Mr Nash, without access to such recordings, are currently contrary to law, natural justice, constitutional justice, and fair procedures; (iv) a declaration that the refusal of the learned District Judge to provide the DAR of Mr Keogh's hearing to Mr Nash is contrary to law.

2 . Mr Nash is accused of engaging in threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace might have been provoked contrary to s.6 of the Criminal Justice (Public Order) Act 1994. The alleged offence took place in a nightclub in a hotel in Tullamore on the late night/early morning of 12th/13 ^th January 2019. Mr Nash denies that he engaged in the criminality of which he stands accused and maintains that he was assaulted on the late night/early morning in question. He attended at Tullamore Garda Station on 13 ^th January 2019 to make a complaint of having been assaulted and returned again on 22 ^nd January, having been invited to do so, and made a formal statement.

3 . Mr Nash was accompanied at the hotel in Tullamore by Mr Keogh, a longstanding friend of his. Mr Keogh was later charged with an offence of assault arising from the same incident. During the course of the Garda investigation of matters, statements were taken from Mr Keogh and from Mr Nash. Statements were also taken from various other individuals and have been disclosed to both men. CCTV footage of the locus was also recovered and, the court understands, has now been provided to Mr Nash's solicitor.

4 . Mr Keogh's case was heard on 7 ^th September 2020. Certain witnesses were called and at the conclusion of the case the trial judge dismissed the charges against Mr Keogh on the basis that there were material inconsistencies in the prosecution evidence. Following Mr Keogh's acquittal, Mr Nash arranged a consultation with his solicitor. Having been advised that prior inconsistent statements are of use in discrediting witnesses, Mr Nash instructed that an adjournment be sought, inter alia, in order that he might obtain a copy of the digital audio recording (DAR) of Mr Keogh's trial. While the preparation of a transcript of audio evidence is a costly exercise, the court understands that the provision of a digital copy of the DAR, either on disk or by email, is a straightforward process which happens on a regular basis. The software whereby the DAR can be accessed is, the court understands, available free of charge.

5 . The application for an adjournment, which was opposed by the garda prosecutor, was moved before District Judge Staines in Tullamore District Court on 21 ^st September 2020, in advance of the intended trial date of 28 ^th September 2020. This adjournment application did not involve a formal application for the DAR. The procedure for such an application is prescribed by Order 12B of the District Court Rules and requires a notice grounded on affidavit to be served seven days prior to the hearing of any application to release the DAR (at which point the District Judge can direct further service of notice of the application on any person believed to be impacted by the potential release of the DAR). 1 In the view of Mr Nash's solicitor, there was adequate time to allow a full and proper application for the DAR to be made prior to the scheduled hearing of the criminal case on 28 ^th September 2020 and for this reason the adjournment was sought.

6 . District Judge Staines refused the application for an adjournment and also stated that she would refuse an application for the release of the DAR on the basis that Mr Nash had been free to attend court for Mr Keogh's case. On the particular facts presenting, this reasoning appears flawed: Mr Nash was actually excluded from the hearing as a possible witness for the State. But even if this were not so (and it was so) Mr Nash enjoys a constitutional right against self-incrimination which would be breached if he were required to give evidence of what happened at Mr Keogh's hearing. Nor, as will be seen, would such an approach conform to the procedure as required under s.4/5 of the Criminal Law Procedure Act 1865.

7 . It will be recalled that among the reliefs sought by Mr Nash are the following declarations: (ii) a declaration that Mr Nash is entitled to a copy of any recording of the evidence given by certain named persons on 7 ^th September 2020 in Tullamore District Court; (iii) a declaration that the proposed criminal proceedings against Mr Nash, without access to such recordings, are currently contrary to law, natural justice, constitutional justice, and fair procedures. When it comes to these declarations the statement of grounds states as follows:

“ The Applicant does not dispute the existence of a public interest right that criminal prosecutions take place and that they happen expeditiously. However, the applicant is aware that inconsistencies [in witness evidence] have been cited by a judge as a reason for dismissing a prosecution arising from the same facts. He [Mr Nash] is entitled to be able to rely on earlier statements, should they prove inconsistent with the evidence given viva voce during the hearing of his case. The only way he can prove such statements were made is if he has access to the DAR….The evidence previously given in a related criminal case clearly has the potential to be relevant, particularly when that related case was...