High Court of Ireland Decisions

Geaney v. D.P.P. [1999] IEHC 53; [2000] 1 IR 412 (8th December, 1999)

BETWEEN

JUDGMENT of O'Sullivan J. delivered 8th December 1999.

1. On the 21st November 1997 the Applicant was driving his blue Mercedes motor car with his wife Joan as passenger when it was in collision with a Fiesta motor car at the junction of Lower Oliver Plunkett Street and Clontarf Street, Cork.

2. The gardai took a number of statements. There were three statements from independent witnesses, two stating that the Applicant's car had gone through a red light and the other from one Michael Houlihan stating that the Fiesta had gone through a red light.

3. The Applicant was prosecuted and his case eventually came on for hearing before the learned second named Respondent on the 24th September 1998. On that occasion the Applicant's solicitor asked the prosecuting gardai to speak to Michael Houlihan and was told that the gardai were unaware of his whereabouts and were unable to locate him. It was explained to the learned second named Respondent on behalf of the gardai that a witness summons had not been served because the whereabouts of Michael Houlihan were unknown to the gardai. The learned second named Respondent adjourned the case.

4. In an Affidavit filed in these proceedings on behalf of the first named Respondent, it is clear that no fewer than three addresses had been furnished for Michael Houlihan and that efforts were made (it is not quite clear whether all these efforts were made prior to the case coming on for hearing on the 24th September 1998) to trace Michael Houlihan at these addresses. He had moved on from the last of these leaving no forwarding address. It is also clear that the prosecution did not intend to call Michael Houlihan as part of their case becauseGarda Frank Griffin, who swore an Affidavit in these proceedings, formed the view that he was in a drunken state on the occasion of his witnessing the accident, on which occasion Garda Griffin acknowledges that Michael Houlihan had indicated to him that the Fiesta had gone through a red light.

5. On the 11th January 1999, McCracken J. gave the Applicant leave to seek an Order prohibiting the Respondents from processing the case without the attendance in Court of the witness Michael Houlihan on the grounds that to do so would be contrary to the principles of fair procedure and the right to a fair trial in accordance with the Applicant's constitutional rights under Article 31.1. of Bunreacht na hÉireann.

6. Mr. Goldberg, Senior Counsel for the Applicant, rested his client's challenge on two grounds, namely, that the first named Respondent had an obligation to procure the attendance of Michael Houlihan before the District Court, or at least to take all reasonable steps in that behalf; and secondly, to tender Michael Houlihan to the Applicant for examination in the District Court.

7. In support he relied on general statements of the law which he said expressed long-standing principles. He referred to Volume 11(2) of the Fourth Edition of Halsbury's Laws of England at paragraph 1003 as follows:-

"It is the duty of the prosecution to take all reasonable steps to secure the attendance of all witnesses who gave evidence before the examining justices, or whose written statements were tendered before the examining justices, except those in respect of whom a conditional witness order was made and upon whom no notice to attend has been served.

Unless prevented from so doing by circumstances beyond its control, the prosecution must have the witnesses present at Court, but there is a wide discretion in the prosecution whether it should call them, either calling and examining them, or calling and tendering them for cross-examination. If, however, the evidence of a witness is capable of belief, the prosecution is under a duty to call him, even though the evidence he is going to give is inconsistent with the case sought to be proved; the prosecution's discretion must be exercised in a manner which is calculated to further the interests of justice and is at the same time fair to the defence. Where the prosecution appears to be exercising its discretion improperly, it is open to the trial judge to interfere and in his discretion to invite the prosecution to call a particular witness, and, if the prosecution refuses, the judge may himself call the witness".

8. Secondly, Mr. Goldberg referred me to Blackstone's Criminal Practice (1998) at D 13.7 as follows:-

"Where the prosecution intend not to call a witness whose name appears on the back of the indictment they nonetheless have a duty to ensure that he is present at Court for the trial so that the defence may call him if they wish ... The disadvantage to the defence of calling the witness is that he may then be cross-examined and discredited by the prosecution, whereas if he had testified as a prosecution witness his evidence in chief could not have been attacked by prosecuting Counsel unless and until he was declared hostile. ....

The above-stated rule as to attendance of witnesses does not apply if they are absent for reasons beyond the prosecution's control. In such cases, whether to proceed without the witness or adjourn is a matter for the trial judge's discretion .... The considerations relevant to the exercise of the judge's discretion were summarised by Geoffrey Lane J. in giving the judgment of the Court of Appeal in Cavanagh His Lordship said:-

'The prosecution must take all reasonable steps to secure the attendance of any of their witnesses who are not the subject of a conditional witness order or whom the defence might reasonably expect to be present. ...

If, however, it proves impossible, despite such steps, to have the witnesses present, the Court may in its discretion permit the trial to proceed provided that no injustice will be done thereby. What considerations will affect the exercise of the Court's discretion will vary infinitely from case to case. Would the defence wish to call the witness if the prosecution did not? What are the chances of securing the witnesses' attendance within a reasonable time? Are the prosecution prepared to proceed in his absence? If so, to what extent would the evidence of the absent witness have been likely to assist the defendant? If the absent witness can be procured, will other witnesses by then have become unavailable? There will be many other matters which may have to be considered'."

9. Finally, Mr. Goldberg referred me to "Criminal Law and Procedure in the Republic of Ireland" by R.L. Sands (Third Edition: 1951) at page 123 as follows:-

"The prosecutor should call all material witnesses at the trial and disclose fully all relevant evidence". (AG v. Kelly: CCA: 21-3-29; AG v. O'Shea (1931) I.R. 720; Hayes' Criminal Law, Volume 2 page 871; R. v. Harris (1927) 2 K.B. 590).

10. Ms. Egan, Barrister-at-Law, submitted on behalf of the first Respondent that this case was governed by the unreported decision of the Supreme Court in O'Regan v. DPP and MacGruairc (20th July 1999) per Murphy J.

In O'Regan the Supreme Court dealt with the following issue:-

"Whether in a criminal prosecution the Director of Public Prosecutions is under a duty to call as a witness or tender for cross-examination all available witnesses who can give evidence directly material to the issues in the prosecution; and, in particular, to call Dr. Prendiville as a witness, or tender him for cross-examination, in the instant prosecution; and whether, the Director of Public Prosecutions having failed to do so, the learned District Court judge should have called the doctor as a witness to allow him to be cross-examined on behalf of the applicant".

In O'Regan the trial before the judge in the District Court had been vigorously contested on a number of different fronts. The Applicant was not willing to call Dr. Prendiville himself as a witness but contended that he should have been called by the prosecution so as to permit his cross-examination by Counsel on behalf of the defence.

11. The Supreme Court held in the first place that Dr. Prendiville had not become a witness for the prosecution merely by reason of his completing a prescribed form in accordance with and for the purposes of Section 18 of the Road Traffic Act, 1994 (which was subsequently produced in evidence). Rather, it was held that the purpose of Section 18 was to obviate the necessity for calling a witness whose attendance in Court would otherwise be required. Thejudgment of the Supreme Court (per Murphy J.) continued at page 7 as follows:-

"In Joseph Frances Oliver (1965: 49: CR App. Rep. 298) the Court of Criminal Appeal in England reviewed at some length the historical development of the duty imposed upon the prosecution to call or tender for cross-examination witnesses who gave evidence at the committal proceedings and whose names appeared on the back of the indictment. That Court held that the prosecution was bound to procure insofar as possible the attendance in Court of all such witnesses and certainly emphasised the obligation on the prosecution to exercise'the utmost candour and fairness' but did not conclude that there was not an obligation on the prosecution to call all such witnesses. In practice I think it would be recognised - and for the purposes of this appeal I would be prepared to accept - that the general and well accepted practice in this country is for the prosecution to call or tender for cross-examination all witnesses whose names are included in the Book of Evidence. However, that is the high water mark of the practice to be adopted in proceedings heard on indictment. There can be no comparable procedure in relation to summary proceedings where no book of evidence is delivered or prepared. That is not to say that in summary proceedings the rights of the accused are ignored or attenuated. Different procedures are adopted to ensure the attainment of justice".

12. The learned Judge then went on to deal with one aspect of those procedures which had been raised in DPP v. Doyle (1994: ILRM: 529) relating to a question whether there was a general obligation on the prosecution to furnish on request the statements of proposed witnesses for the prosecution where an indictable charge is being disposed of by summary trial in the District Court.

In Doyle Denham J. held that there was no such general obligation but that if an accused requires, and it is in the interests of justice, that he be furnished with statements, then he is so entitled. It is a matter for the trial judge to determine in each case. In that case Denham J. suggested that the procedures adopted appeared appropriate, namely, a letter requesting the statement (or whatever document is being requested) and if this is not furnished, then the matter should be listed before the District Judge to determine the issue.

13. Murphy J., having referred to the decision in DPP v. Doyle, continued in O'Regan as follows:-

"In the absence of a direction by the judge of the District Court there is no obligation on the prosecution to furnish to the defence, statements of evidence taken by the prosecution for the purposes of summary proceedings. Less still is the Director bound to call as witnesses or tender for examination persons by whom such statements were made or even to procure the attendance in Court of such persons. Subject to the overriding consideration that the prosecution must not mislead the Court or suppress any material evidence which might be of assistance to the defence, it is a matter within the discretion of the Director as to what evidence he will call in support of the charge laid by him".

14. Ms Egan submits that the present case is governed by the decision of the Supreme Court in O'Regan.

15. It seems to me that this latter submission must be correct. The citation from the judgment of Murphy J. in O'Regan is expressed in general and unqualified terms. Furthermore, Denham J. in DPP v. Doyle had said:-

"The trial is summary, it is not a half-way house between an indictable and a summary trial. ..."

16. In light of the foregoing authorities, it seems to me that there was no obligation in law upon the first Respondent to procure the attendance before the second Respondent of the witness Michael Houlihan or to tender him for examination.

17. The Applicant, certainly, retained at all times his constitutional rights to fair procedures. It seems to me that these would include that he be given such information as is in the possession of the first Respondent in relation to the statement and whereabouts of Michael Houlihan. I cannot see, however, that the prosecution must effectively be stopped unless and until the attendance of Michael Houlihan in Court can be guaranteed by the prosecution. Once the prosecution have made available to the Applicant all relevant information in their possession in relation to Michael Houlihan and once a reasonable opportunity has been afforded to the Applicant to arrange for his attendance in Court, then I consider that the Applicant's rights to fair procedures have been respected.

18. Accordingly in the present case, my view is that once the learned second named Respondent is satisfied that the Applicant has been put in possession of all information available to the first named Respondent in relation to the statement and whereabouts of Michael Houlihan and has been given a reasonable opportunity to arrange for the attendance of Michael Houlihan in Court on the appropriate date, the first named Respondent is free to proceed with the prosecution against the Applicant in the absence, if such be the case, of Michael Houlihan.

19. In these circumstances I refuse the reliefs sought by the Applicant.