High Court of Ireland Decisions

1. By Order of Geoghegan J. on the 28th day of June, 1999 the Applicant was given leave to apply by way of Judicial Review for an Order of Prohibition restraining the first named Respondent from further dealing with or resuming the hearing of the trial of the Applicant in a prosecution entitled “The Director of Public Prosecutions -v- Patrick Carey”.

2. The facts giving rise to the application are contained in the affidavit of Patrick Carey, the Applicant, sworn on the 21st day of June, 1999.

3. He deposes that on the 27th day of July, 1998 he appeared in Kilmainham District Court in Dublin to answer a complaint by way of charge sheet entitled “Dublin Metropolitan District/Director of Public Prosecutions, Applicant and Patrick Carey, 24 Forest Hills, Rathcoole, Co Dublin, Defendant.” The said charge sheet (charge sheet no 80 of 1998/Rathcoole Garda Station) alleged that the Applicant on the 25th day of July, 1998 at 24 Forest Hills, Rathcoole, Co Dublin in the Dublin Metropolitan District, knowing that a safety Order under the Domestic Violence Act, 1996 was in force, did put in fear the Complainant, Bernadette Carey, contrary to Section 17 of the Domestic Violence Act, 1976.

4. A Safety Order under Section 2 of the Domestic Violence Act, 1996 had been made on the 8th day of June, 1998, and there is no issue about the fact that such an Order was validly made.

5. The case was adjourned several times and eventually came on for hearing at Kilmainham District Court on the 28th April, 1999, upon which occasion the Applicant was represented by Solicitor and Counsel.

6. The State Solicitor who was appearing for the second named Respondent, opened the case to the Court and called Garda Irish Brosnan to give evidence. Garda Brosnan gave evidence of her investigation of the complaint. The State Solicitor then called Bernadette Carey, wife of the Applicant, to give evidence. She gave evidence of an incident which she alleged occurred on the 25th day of July, 1998 at her home. At this point it is suggested that the State Solicitor directed Garda Brosnan to hand a document into Court. This document purported to be a copy of the Safety Order in appropriate form.

7. However, Counsel for the Applicant asked to inspect the document and, on noting that it was a photocopy only of the original Safety Order, submitted that it was not admissible in evidence in photocopy form and that the only admissible evidence of the making of such an Order was the production of either the original Order or a certified copy of same.

8. The State Solicitor argued that the document spoke for itself and required no further proof. The District Judge indicated she would accept the document, but further indicated that if Counsel for the Applicant was unhappy and insisted upon a certified copy of the document, she would then adjourn the case to allow a certified copy be obtained. Counsel objected to the adjournment on the basis that the evidence in the case had commenced and further contended that as the prosecution’s proofs were not in order, the appropriate Order to make in all the circumstances was to dismiss the complaint.

9. However, the learned District Judge then adjourned the matter until the 9th day of September, 1999 and remanded the Applicant on continuing bail to Kilmainham Court in the interim.

10. In a supplemental affidavit, the Applicant is adamant that the District Judge decided to adjourn the case of her own volition, without a request to that effect having been made by either side and, that by doing so, ceased to be impartial and in effect took the side of the prosecution with a view to curing a procedural defect.

11. There are accordingly two matters to be considered by this Court:-

12. Dealing firstly with the appropriate form of a Court Order, the Law of Evidence Act, 1851 provided (at Section 14) that ‘examined’ or ‘certified’ copies of documents should be admissible in evidence where such documents were admissible on production from proper custody and no statute existed which rendered their contents provable by means of a copy.

13. Fennell’s (Law of Evidence in Ireland) (1992 Ed) provides at p. 297:-

14. Keane’s (Modern Law of Evidence) (3rd Ed, 1994) provides at p. 183:-

15. Order 39 Rule 3 of the Superior Court Rules provides:-

16. It is quite apparent that modern technology has completely superseded methods of replication and authentication which were appropriate to the last century. The Criminal Evidence, 1992, seems to me to confer on a judge a very wide discretion to accept copies, be they photocopies or facsimile copies as admissible evidence in criminal proceedings.

17. This section, it seems to me, confers jurisdiction on a District judge to determine the manner in which he or she shall deem a copy of a document to be duly authenticated, and in the instant case it is clear that the District judge did indicate that she was prepared to accept a photocopy as being adequate and for that reason alone the Applicant’s seems to me incorrectly founded.

18. Even if I am mistaken in that view, it seems to me that it was well within the discretion of the District judge to decide to adjourn a case at hearing. It is specifically provided by Order 2(2) of the 1997 District Court Rules as follows:-

19. Clearly this is a discretion which can only be exercised subject to fair procedure and one can envisage instances where the granting of an adjournment to allow the prosecution mend its hand would be an unfair procedure.

20. However, it is quite apparent in the instant case that the making of the Order was not in issue and indeed the Applicant’s wife had given evidence on all pertinent issues before this point ever arose before the Court.

21. As pointed out in Woods (District Court Practice and Procedure in Criminal Cases) p.166:-

22. In fact, the Corbett case was reported as A.G. (Corbett) -v- Halford , [1976] I.R. p. 318 where Henchy J., stated as follows at p. 320:-

23. In the same case, Kenny J., stated (p.324):-

24. It seems to me that the adjournment of this case by the First named Respondent fell well short of the level of inappropriate intervention referred to by Morris J., in Dineen -v- District Judge Sean Delap and D.P.P . (1994)2 I.R. p. 228.

25. I do not think the instant case is at all similar to Mulligan and McDonnell -v- The Judges of the Dublin Circuit Criminal Court and the D.P.P ., wherein the Supreme Court gave its decision on the 19th day of May 1999. This was a case where the prosecution were unable to produce a death certificate in respect of evidence of the victim which had been taken on deposition in the District Court and which the prosecution proposed to tender under the Criminal Procedure Act 1967. The Circuit Court judge had discharged the jury and thereafter the Dublin Circuit Criminal Court was prohibited from further putting on trial the Respondents. In his judgment in the High Court, McCracken J., stated:-

26. Based more on the concept of delay, the Supreme Court upheld McCracken J., but in any event, the instant case seems totally different. The evidence in that case went directly to the merits and indeed comprised the evidence of the victim of the very crimes with which the Applicants were charged. The offence occurred in 1993, so that the Supreme Court in dealing with the matter were perfectly entitled to express disapproval of delay in May 1999.

27. No such considerations arise in the instant case. There is no dispute about the making of the Order and it is impossible to see how the Defendant has been prejudiced in any way.

28. I will therefore dismiss the application.

29. Dated this 21st day of December, 1999