High Court of Ireland Decisions

1. By Order of the High Court made by Mr. Justice Peter Kelly on the 16th April 1999, the applicant was given leave to seek judicial review by way of prohibition or an injunction directed to the Respondent herein prohibiting him from further prosecuting the applicant in a prosecution entitled The People at the Suit of the Director of Public Prosecutions against Gerard Molloy which prosecution was then pending before the Circuit Criminal Court of the South Western Circuit in the County Borough of Limerick, and further for an Order by way of Prohibition and/or an injunction directed to the second named Respondent that is District Judge Michael Reilly or whatever Circuit Court Judge might be assigned to hear the case prohibiting him from trying the applicant herein in the prosecution question.

2. The grounds upon which the applicant was given leave to seek the within reliefs are as follows

3. It appears that the High Court has enlarged the grounds upon which the applicant may seek the relief sought in these proceedings and that these grounds have been enlarged by the inclusion of a ground that the Respondent Judge failed to allow the applicant’s solicitor to examine Garda Paula Kelleher at the taking of depositions.

4. The applicant has confined this application to all but the third ground set forth in the statement grounding the application to the High Court for leave for judicial review.

5. The applicant himself has sworn an affidavit in which he deposes that he was charged at Limerick District Court on the 27th of March 1998 with an offence of having in his possession certain articles including a cap, a scanner, a torch, a pair of gloves, a mobile phone, a secateurs, two Stanley knives, two screwdrivers, a claw hammer, a lump hammer, a junior hacksaw, a screwdriver rod, a wrench, a small red torch, an iron bar, a Stanley saw, a hand drill, assorted bits, a pair of runners, four hacksaw blades, seven assorted Alan keys, a weatherproof trousers, a ‘Head’ gear bag, a scarf, a black woollen hat with the intention that they be used in the course of or in connection with larceny or burglary contrary to Section 28 (1) of the Larceny Act, 1916 as substituted by Section 2 of the Larceny Act, 1990.

6. Mr. Molloy states that he instructed his Solicitor Mr. John Devanee to take depositions on his behalf at the preliminary examination of the charges against the applicant at a sitting of the District Court at Limerick on the 24th February, 1999. The applicant states that the matter was dealt with at a sitting of the District Court at Limerick on the 24th February, 1999. He states that, prior to the taking of the depositions at the preliminary examination, his Solicitor made an application to the Respondent Judge to direct the State to provide his solicitor with all notes and statements as prepared by the investigating Garda Paula Kelleher. He states that the Judge of the District Court refused this application.

7. Mr. Molloy states that prior to the taking of the depositions on the 24th February that he requested by way of a letter dated the 21st December 1998 written to the State Solicitor Mr. Michael Murray that he be provided with all Statements and Notes of the investigating Gardai. The applicant complains that the State refused to provide him with the Statements and Notes requested by him of the State Solicitor. The applicant exhibited no reply to his letter of the 21st December, 1998 addressed to the State Solicitor.

8. The applicant further complains that the respondent Judge directed his solicitor not to communicate with a witness namely Garda Paula Kelleher of Birr Garda Station Co. Offaly, who was subpoenaed by him to appear on behalf of the defence, prior to the taking of depositions at the preliminary examination. It is further complained that the Respondent Judge refused to allow his solicitor to cross-examine Garda Kelleher in the taking of depositions at the preliminary examination. It is conceded by Counsel on behalf of the applicant that the question of cross-examining a deponent who was called by him did not arise and that this ground of application was misconceived.

9. It appears that in the course of the taking of depositions, the matter was adjourned to the 16th March, 1999 for the purpose of taking a deposition from one witness namely Garda John Askins.

10. On behalf of the Director of Public Prosecutions opposition has been filed to this application on a number of grounds including the following:

11. The Statement of grounds of opposition has been verified by an affidavit sworn by Michael D Murray State Solicitor for Limerick. In his affidavit Mr. Murray deposes to having received the hand written letter from the applicant of the 21st December, 1998. Mr. Murray says that the letter sent by the applicant made clear that he was representing himself and that he was not represented by a firm of solicitors for the purpose of the prosecution. Mr. Murray complains that the applicant has failed to disclose to this Court that he replied to that letter on the 28th January, 1999 forwarding to the applicant copy Garda statements and a copy of the custody record relevant to the applicant and furthermore in his letter he states that he answered other queries made by the applicant. Mr. Murray has exhibited this reply. He does not know why the applicant decided not to disclose the reply to this Court and he states that the queries raised by him in his letter of the 21st December, 1998 had in fact in very large measure been answered to his satisfaction in the reply from of the 28th January, 1999. He further states that following the sending of the letter of the 28th January, 1999 the applicant did not complain to him that he had not been given the documentation requested. It is furthermore pointed out by Mr. Murray that the applicant did not complain to the Respondent Judge that the documentation had not been provided. His only complaint to the Judge in relation to the documentation was that he Michael Murray has failed to forward all notes and statements prepared by Garda Paula Kelleher.

12. Mr. Murray states that the applicant refers to Garda Kelleher as the investigating Garda Paula Kelleher. Mr. Murray states that as the applicant is well aware Garda Kelleher is not the investigating Garda. He says that she is not the Garda who charged the applicant and indeed at the time of the investigation of the offence against the applicant was a student Garda. He says that she was present when an interview took place with the applicant but she did not make any statement arising out of this interview and did not make any notes at the time.

13. Mr. Murray goes on to state that the applicant wanted a Court Order requiring the prosecution to provide notes and statements prepared by Garda Kelleher and that the presiding Judge refused the application. Mr. Murray says that the applicant further states that prior to the taking of depositions on the 24th February, 1999 he had requested by way of letter of the 21st December, 1998 certain documentation, but rather swears that the State had refused to provide him with the statements and notes. Mr. Murray states that this averment is untrue. With regard to the failure of Garda Kelleher to communicate with the applicants solicitor Mr. Murray points out that this issue arose in the context where Garda Kelleher was present in Court to give evidence on subpoena at the request of the applicant and a wish not to talk either to the accused or Mr. Devanee. It is stated that when Mr. Devanee approached the Garda that he Mr. Murray informed him that she did not wish to be interviewed by him and that she would give whatever evidence she had on deposition as was her obligation.

14. Mr. Murray goes on to say that when this matter was brought to the attention of the Respondent Judge that he indicated to Mr. Devanee that it was a matter entirely for the Garda as to whether or not she wished to be interviewed. It is pointed out that the Respondent Judge did not direct Mr. Devanee to refrain from communicating with Garda Kelleher.

15. Mr. Murray states further that insofar as there is a suggestion that there has been a failure to make full disclosure of all matters to the applicant he believes this complaint to be misconceived. He states that for the sake of clarity he wishes to confirm that he has provided all relevant documentation in his possession to the applicant. The letter sent by Mr. Murray has been exhibited by Mr. Murray and this indicates that in reply to the request by the applicant that he provided all relevant documentation in his possession to the applicant. Including copies of all Garda memos and notes from their notebooks concerning the applicant’s arrest, detention and the investigation. With regard Garda Kelleher it is indicated to the applicant in the reply that she did not make any statement.

16. On the 7th of July, 1999 a further within request was made on behalf of the applicant and his co-accused Patrick Brennan by Mr. Pat Barriscale Solicitor of Holmes O’Malley Sexton Solicitors for copies of all Garda statements and memos and a copy statement of student Garda Kelleher. On the 11th February, 1999 Mr. Murray replied to this letter enclosing copies of the custody record, copy Garda statements and memos as requested. It was stated that Garda Kelleher did not make a statement.

17. An affidavit has been sworn by Mr. John Devane Solicitor on behalf of the applicant in these proceedings. He states that he was instructed by Mr. Molloy to act on his behalf in the taking of depositions at the preliminary examination stage at the District Court on the 24th February, 1999. Mr. Devane states that prior to the taking of depositions at the preliminary examination that he made an application on behalf of the applicant to the Respondent Judge that he be provided with all copies of statements and notes prepared by Garda Paula Kelleher of Birr Garda Station. He states that this application was refused by the Respondent Judge. Mr. Devane states that he was not permitted an opportunity to examine Garda Kelleher in respect of the notes that she had prepared. He indicates that he was furnished with some notes just as the witness appeared before the Court to give evidence. She appeared to read from other notes which were not furnished to him.

18. A supplemental affidavit has been sworn by Mr. Michael D. Murray in which he refers to Mr. Devane’s affidavit. He indicates that the Respondent Judge was satisfied by him at the taking of the depositions that the notes prepared by Garda Kelleher while she was a student Garda had been furnished to the defence and that there were no other documents in existence that had been prepared by her. He states that he believes that Mr. Devane was in possession of the notes made by Garda Kelleher for a period of at least 30 minutes prior to her giving evidence on deposition. He further states that at no stage did Mr. Devane complain to the Judge that he was at any disadvantage with regard to the manner in which the notes of Garda Kelleher were furnished to him. Mr. Murray says that having regard to the extent and nature of the notes and the time available to the Court on the date in question he has no doubt that if necessary the appropriate time would have been afforded to Mr. Devane if such a request had been made. Mr. Murray says that apart from the notes made by Garda Kelleher, which have been furnished to the defence, there has never been any other notes or statements in existence relating to this matter which have been made by her and in particular she did not have any or any other notes before her when she was giving evidence.

19. A supplemental affidavit was sworn by Mr. John Devane in reply to the supplemental affidavit of Mr. Murray. He says that he only received the notes in question relating to Garda Kelleher a few minutes prior to her giving her evidence. He states further that he did protested to the Respondent Judge as to the manner in which the notes were furnished to him for examination just minutes prior to the giving of her evidence. He says further that Garda Kelleher had notes in her possession when giving evidence on deposition which he had not an opportunity to examine and consider because of the brevity of time he was given in which to consider such notes before Garda Kelleher gave her evidence.

20. This case comes before the Court in context of some considerable dispute between the applicant and his solicitor Mr. Devane, on the one hand, and the State Solicitor Mr. Murray, on the other hand, as to what precisely transpired in the District Court. It is important to realise that the onus of proof lies on the applicant in any case such as this and in the context where there are disputes on affidavit between the deponents the matter cannot be resolved in favour of the applicant unless the Court has an opportunity of hearing the witnesses in question give evidence in Court in circumstances where they are cross-examined on their affidavits. In light of this proposition the Court adjudicates upon the various grounds relied upon by the applicant as follows:-

21. The third ground is again the alleged failure or refusal to provide the applicant’s solicitor with all statements and notes prepared by the investigating Gardai. Insofar as a dispute also exists in this regard the matter cannot be resolved in favour of the applicant and I must accordingly refuse this relief also.

22. Insofar as the further element of the examination of Garda Kelleher related to the question as to whether she was permitted to be cross-examined by Mr. Devane it is clear that no essential dispute exists in this regard and it is accepted on behalf of the applicant that the law as it stood at the time is that any examination of the witness had to be examination-in-chief and that the law did not permit her to be cross-examined at the taking of depositions insofar as she was called by the applicant himself. This related to the decision of the High Court in the case of the State (Sherry) -v- Wine [1985] ILRM 196. In all the circumstances the applicant’s application to this Court must fail and I refuse the relief sought.