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McHugh v. Brennan [2000] IEHC 56 (14th April, 2000)

THE HIGH COURT

Judicial Review

No. 215 JR 1999

BETWEEN

PATRICK MCHUGH

APPLICANT

AND

JUDGE FLANNAN BRENNAN

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

Note of ex-tempore judgment delivered by Ms. Justice Laffoy on 14th April, 2000

BACKGROUND

1. The background to this matter is that the Applicant is charged with criminal damage and trespass at Knockreagh, Broomfield, Castleblaney on 19th March, 1999, the alleged victim being Barry Cunningham.

2. On his first appearance in the District Court in April 1999 the Applicant's solicitor, Mr. White, sought disclosure of documents. Mr. White avers that the first named Respondent, Judge Brennan, ordered "disclosure of all relevant material in the possession of the prosecution". There is some controversy about what Judge Brennan actually ordered. Inspector Cunningham, the prosecuting Garda, in his affidavit, avers that on the next occasion the matter was in the District Court, Judge Brennan stated that he never used the word "disclosure". In any event, as a result of the order, whatever its terms were, the prosecution produced all witness statements taken, the custody record and a memorandum of an interview with the Applicant on 15th April, 1999.

3. The Applicant's solicitor was not satisfied that the order of Judge Brennan had been complied with and he sought two further classes of documents, namely:

(1) Copies of all relevant entries in Garda notebooks on which the statements were based; and

(2) Evidence in relation to the following two matters arising from the interview memorandum -

(a) an assertion by the interviewing Garda that the "staff at McCaheys" knew the whereabouts of the Applicant's car on the morning of 19th March, 1999 and

(b) an assertion that there was a witness who could prove that the Applicant's car was at Caroline Donaghy's house in Crossmaglen on the evening of 19th March, 1999.

4. The prosecution's response to the further request was as follows:

(1) In relation to the notebook entries, production would be a matter for the Judge during the trial; and

(2) In relation to the other evidence -

(a) no statement had been taken from the staff at McCaheys and the State will not be relying on such evidence as part of the prosecution, and

(b) as to the car being at Crossmaglen, evidence was to be given by the injured party.

5. The matter was back in the District Court on 25th May, 1999. In response to a submission by the Applicant's solicitor that the prosecution had not complied with his order, Judge Brennan ruled that production of the statements together with the custody record constituted compliance with his order. He adjourned the matter until 14th June, 1999 and, while refusing to direct production of the notebook entries, he indicated that the Applicant's solicitor would be afforded an opportunity and the relevant time to inspect the Garda notebooks on the morning of 14th June, 1999. He also suggested that the defence make his own enquiries of the staff of McCaheys.

LEAVE

6. By order of this Court made on 10th June, 1999 by Geoghegan J. the Applicant was given leave to apply by way of Judicial Review for the following reliefs:

(1) An Order of Certiorari quashing the ruling of the first named Respondent made at Carrickmacross District Court on 25th May, 1999 to the effect that the Applicant is not entitled to disclosure of certain materials including -

(a) copies of relevant Garda notebook entries,

(b) the identity and/or statements of certain witnesses, which evidence is in the possession of the Gardai and relates to the whereabouts of the Applicant on the morning on which the offences with which the Applicant is charged are alleged to have been committed,

(c) the identity and/or statements of certain witnesses, which evidence is in the possession of the Gardai and relates to the whereabouts of the Applicant's car on the morning on which the offences with which the Applicant is charged or alleged to have been committed.

(2) An Order of Mandamus compelling the first named Respondent to direct the aforementioned materials be made available to the Appellant.

(3) An Order of Mandamus compelling the second named Respondent to make the aforementioned materials available to the Applicant.

(4) An Order of Prohibition to prevent the second named Respondent from proceeding with, and the first named Respondent from hearing, the charges of criminal damage contrary to Section 2 of the Criminal Damage Act, 1991 and trespass contrary to Section 13 of the Criminal Justice (Public Order) Act, 1994 proffered against the Applicant at Carrickmacross District Court on 27th April, 1999 until the aforementioned disclosure has been made.

GROUNDS

7. The grounds on which the Applicant sought and was granted leave to seek the foregoing reliefs were as follows:

(1) That failing to disclose the aforementioned material is unfair;

(2) That failing to disclose the aforementioned material is contrary to natural and constitutional justice;

(3) That failing to disclose the aforementioned material would fail to vindicate the constitutional rights of the Applicant;

(4) That the Applicant would be prejudiced in the preparation of his defence if the aforementioned material is not disclosed;

(5) Such further and other ground as may be supplied in due course; and

(6) That as the first named Respondent made an order directing disclosure, the Applicant is entitled to full disclosure of all material evidence

8. The Applicant was given leave to argue an additional ground in the order, namely, that the documents and information now sought would have been covered by the order made on 27th April, 1999.

THE LAW

9. The duty of a Judge of the District Court in the conduct of a summary trial and, in particular, the appropriate response to a request by the defence for material from the prosecution was considered by the Supreme Court in D.P.P. -v- Doyle [1994] 2 I.R.286. In her judgment, Denham J. stated as follows at page 301:

"The District Court Judge has the duty of ensuring that justice incorporating fundamental constitutional concepts of fair procedures is delivered in Court. In the absence of legislation the test for the District Court Judge to apply in each case is whether in the interests of justice on the facts of a particular case the accused should be furnished pre-trial with the statements on which the prosecution case will proceed.

The procedures necessary to obtain justice will vary as the cases vary. Many very minor cases may not require that statements be furnished. As O'Higgins C.J. stated in The State (Healy) -v- Donoghue [1976] I.R. 325 at page 350:-

' There are thousands of trivial charges prosecuted in the District Courts throughout the State everyday. In respect of all of these there must be fairness and fair procedures, but there may be other cases in which more is required and where justice may be a more exacting task-master. The requirements of fairness and of justice must be considered in relation to the seriousness of the charge brought against the person and the consequences involved for him'.

10. The more serious cases and the more complex cases may require that copies of statements and other relevant documents be furnished in advance of the trial to inform the accused of the accusation so that he may prepare his defence.

11. Amongst the matters which a District Court Judge may find relevant when deciding whether or not constitutional justice requires statements or documents to be furnished include:-

(a) The seriousness of the charge;

(b) The importance of the statement or document;

(d) The likelihood that there is no risk of injustice in failing to furnish the statements or documents in issue to the accused."

12. On the evidence before me I am satisfied that the conduct of the Applicant's trial is being carried out by Judge Brennan within jurisdiction and in accordance with fair procedures.

13. Judge Brennan, who made the order for production of documents by the prosecution, was satisfied that the order he made was complied with. That is the end of that aspect of the matter.

14. In relation to the Applicant's outstanding requests, these have to be judged against the criteria outlined by Denham J. The charges against the Applicant are certainly serious, if the injured party's version is true, but he has not only been adequately apprised of the nature and substance of the allegations against him but he has also been largely apprised of the evidence which will be proffered against him on the charges.

15. In my view, it is entirely reasonable that production of the notebook entries should be withheld until the day of the trial, so that any claim for privilege may be dealt with by the Court.

16. Moreover, in my view, the pursuit of the evidence in relation to the whereabouts of the Applicant's car, on any objective view, could not be crucial to the Applicant's defence given that -

(1) presumably the Applicant knows where his own car was, as the memorandum of the interview suggests,

(2) no evidence is to be tendered of staff members in McCaheys in relation to its whereabouts on the morning, and

(3) it is the injured party who is to testify as to its whereabouts at 8 pm in the evening and, going on the interview memorandum, that testimony will coincide with the Applicant's version.

17. In general, I find that there is no conceivable risk of prejudice to the Applicant in the trial proceeding in the manner envisaged by Judge Brennan.

18. Accordingly all the reliefs sought are refused.