1. This
is a purported appeal against an order for non-party discovery made against the
Rape Crisis Centre by Smith J. sitting in the Central Criminal Court the
alleged purpose of the discovery being the defence of a prosecution for rape to
be tried in that court. I have used the word "
purported"
because it has been argued on behalf of the accused in the proposed trial who
is the applicant for the discovery that no appeal lies to this court from the
order having regard to the provisions of section 11(1) of the Criminal
Procedure Act, 1993. That subsection reads as follows:-
2. Subsection
(2) of the section goes on to provide that the section is not to apply to a
decision of the Central Criminal Court in so far as it related to the validity
of any law having regard to the provisions of the Constitution. Although on
the face of it this might seem to be a preliminary objection to the appeal
which would have to be determined first, in reality the applicability or
otherwise of section 11(1) cannot be
considered
without a careful analysis of the nature of the appeal itself. If, as I
believe to be the case, the order for discovery made was not an order made by
the High Court exercising its criminal jurisdiction then clearly the subsection
has no relevance and there is an appeal to this court in the ordinary way.
Having arrived at that view, I do not propose to express any opinion on the
important matter which was argued before the court as to whether section 11(1)
applied only to the final decisions of the Central Criminal Court on the basis
that it was intended merely to repeal the decision of this court in
The
People (Director of Public Prosecutions) v. O'Shea
[1982] IR 384 or whether it was intended to apply to interlocutory orders by
the court as well. Under the conventional rules of the common law for
statutory interpretation there is a strong case in favour of the latter
argument, but given that it has long been held that the right of appeal to the
Supreme Court under the Constitution can only be removed by clear words, I
would leave open to be determined on another occasion the question of what view
the court should take if on a contextual interpretation it was clearly not
intended by the Oireachtas to abolish the right of appeal in all cases.
3. I
return now to the reason why I believe that the decision of Smith J. was a
decision made in the ordinary way in the High Court and not a decision of the
Central Criminal Court. It is true, of course, that administratively the
papers were handled and the order drawn up within the office of the County
Registrar of Dublin in accordance with normal practice (for purely historical
reasons) of the Central Criminal Court and not in the Central Office of the
High Court as would be expected if the civil jurisdiction was being invoked.
But the fact that defective practices or defective or misleading administrative
procedures might have been used is entirely irrelevant in considering what in
substance was the nature of the purported jurisdiction being exercised by Smith
J. The relevant order of the learned High Court judge was made on the 29th
of May, 2000. As the terms of the order are quite short, I think it useful
to cite it in full. It reads as follows:-
4. References
to the "
respondent"
in the order are references to the Rape Crisis Centre which was named in the
notice of motion and given the title "
respondent".
I know of no procedure whereby that could be done but I am ignoring it for
the purposes of this judgment as nothing turns on it. In the Halsbury Volume
on Discovery of Documents it is pointed out that the term "
discovery"
is sometimes used in its wide generic sense to describe a whole range of
procedural devices. However, it is quite clear from both the nature of the
notice of motion and the nature of the order made by the learned High Court
judge that the order for discovery being sought here was the conventional kind
of order albeit against a non-party which might be made under the Rules of the
Superior Courts in any common law motion list. This, of course, is hardly
surprising because there is no other known discovery type jurisdiction. The
order made by Smith J. is in the classical form of requiring an affidavit of
discovery to be filed and fixing a time limit within which it is to be done.
But is there any jurisdiction to make such an order in a criminal case?
Although this precise point may not be raised in those precise terms in the
notice of appeal and although the Director of Public Prosecutions appears to
accept that discovery procedure under the rules of court may be invoked in
criminal prosecutions, this court, if it considers that there is no such
jurisdiction cannot be expected to consider the merits of the order on some
artificial assumed basis of jurisdiction. It emerged from the oral hearing
of this appeal that the basis for suggesting that discovery orders may be made
in criminal proceedings is extremely thin and, therefore, I consider that it is
incumbent on this court to consider this matter first. In his authoritative
work on discovery in 1844 Bray expressly rejected the proposition that the
process of discovery was available in criminal proceedings and the same view is
repeated by Matthews and Malek in their book on the same topic in 1992.
5. The
history of discovery procedure is explained succinctly in Volume 13 fourth
edition of Halsbury's Laws of England in footnote 3 to paragraph 1. It is
explained that discovery was originally an equitable device employed in the
Court of Chancery for obtaining the disclosure and inspection of relevant
documents as well as the disclosure and admissions of relevant facts. The
common law courts originally possessed no general power to order discovery of
documents but they had limited powers to order inspection. The Common Law
Procedure Acts ultimately conferred extensive discovery jurisdiction on the
common law courts. But upon the amalgamation of the courts under the
Judicature Acts a common practice of discovery of documents was established by
those Acts and the Rules of Court made thereunder. In Ireland, the Rules of
the Supreme Court (Ireland) 1905 are fully set out in Wylie's Judicature Acts.
O. 31, r. 12 of those rules provided that any party might apply to the court
for an order directing any other party "
to
any cause or matter"
to make discovery on oath the documents which were or had been in his
possession or power etc. The word "
cause"
had been defined in the Judicature Act (Ireland) 1877 as including
"any
action, suit, or other original proceeding between a plaintiff and a defendant,
and any criminal proceeding by the Crown"
.
But that definition like every other definition given in section 3 of the
Act was not to apply if there was "
anything
in the subject or context repugnant thereto"
.
In the hundred years that followed that Act there was never discovery of
documents ordered in criminal proceedings and I think that is clearly because
having regard to the history of the jurisdiction in discovery of documents and
the context in which such orders were made, it would have been clear that the
rules relating to discovery would not have been intended to include criminal
proceedings. I am reinforced in this view by the terms of section 65 of the
1877 Act which reads as follows:-
6. Section
32 of the same Act provides that assizes were deemed to be a court of the High
Court of Justice.
7. The
High Court of Justice established by the Courts of Justice Act, 1924
effectively took over all the criminal jurisdiction which had been vested in
the High Court of Justice of Southern Ireland, which in turn was the same
jurisdiction as was exercised prior to 1920 by the High Court of Justice of
Ireland established by the 1877 Act. The 1924 Act defined "
Central
Criminal Court"
as
meaning the judge of the High Court to whom is assigned the duty of acting as
such court for the time being. Any ambiguity arising from this slightly
circular definition was rectified by the Courts of Justice Act, 1926.
Section 4 of that Act provided as follows:-
8. It
is clear beyond doubt that up to 1961 the jurisdiction of the so called "
Central
Criminal Court
"
was the jurisdiction of the High Court which in turn was largely the
jurisdiction carried over from the old High Court established by the Judicature
Act. In all those years discovery of documents was unknown. The same
jurisdiction became vested in the new High Court established by the Courts
(Establishment and Constitution) Act, 1961 under the provisions of the Courts
(Supplemental Provisions) Act, 1961. The "
Central
Criminal Court
"
was given a different statutory definition in that it was provided that the
High Court exercising the criminal jurisdiction with which it was invested
should be known as the Central Criminal Court. But nothing turns on any of
these variations in definition. Most importantly there is nothing in the
character of the criminal jurisdiction vested in the present High Court which
could lead to any view that the Rules of Court relating to discovery were
suddenly to apply to it when they had never applied to its predecessors.
9. In
Mr. Eamonn Cahill's book "
Discovery
in Ireland"
published in 1996 the following sentence appears at p. 69:-
10. I
do not read that passage as expressing an opinion that the process of discovery
is available to or applicable in criminal cases. The principle to which the
learned author was referring related to the nature and extent of executive
privilege and the manner in which it could be claimed. Certainly, issues of
that nature arise within the discovery process but equally similar problems are
encountered in the course of legal proceedings, both civil and criminal.
Indeed Mr. Cahill in the same chapter of his very helpful book refers to
D.P.P.
(Hanley) v. Holly
[1984] ILRM 149 in which Keane J. (as he then was) applied the principles
enunciated in
Murphy
v. Dublin Corporation
so as to overrule the acceptance by a district judge of a plea of privilege in
relation to a class of documents. In that case the issue of privilege had
arisen where a garda in the course of his evidence referred to a report which
he had made to his superior officers in relation to an arrest which he had made
of a person charged with drunk and disorderly conduct. The issue did not
arise in the context of discovery of documents nor does the judgment provide
any authority for the proposition that such discovery is available in criminal
proceedings. Not only of course does an accused in an indictable case have
rights under the Criminal Procedure Act, 1967 but it is well established in
recent years that he has a right to see relevant documentation in the hands of
the prosecution. This arises from the constitutional obligation on the court
to ensure fair procedures. It does not involve the swearing of an affidavit
of discovery and it has nothing whatsoever to do with the conventional
discovery procedure set out in the Rules of the Superior Courts. It is
discovery in that
legal
and narrower sense of the word which was sought from Smith J. and there is no
doubt that the order he made was of that nature. Particularly as the
application was for non-party discovery, I have no doubt at all that the
learned High Court judge was purporting to make the order under the Rules of
the Superior Courts, even though there is no specific citation. It is not
uncommon for a judge dealing with a civil case in the High Court to make an
order for discovery in the presence of both parties at a stage where for
instance he might either be case managing or in some way or other had seisin of
the ongoing case which had not yet come to trial. But more usually a
discovery order would be made either by the Master of the High Court in his
motion list or by a High Court judge dealing with a common law motion list and
in the case of non-party discovery it would always be by a judge. If an
order for discovery was made by a High Court judge in the course of dealing
with a common law motion list and that order related to criminal proceedings, I
doubt that it would ever be argued that no appeal lay from that order on the
grounds that the High Court judge dealing with the common law motion list was
in respect of that particular motion exercising criminal jurisdiction and was
therefore
"the
Central Criminal Court".
Apart
from anything else he would not have been the judge assigned by the President
of the High Court to sit in the Central Criminal Court. The learned High
Court judge, therefore, was not entitled to make the order he did make because
such an order cannot be made in connection with
criminal
proceedings, but in so far as he did make the order and especially as it
related to a non-party, he was purporting to exercise the jurisdiction
conferred by the Rules of Court which is a civil jurisdiction. There are
strict rules in relation to the exercise of that jurisdiction. These are
contained in O. 31 of the Rules of the Superior Courts, 1986, as amended by the
Rules of the Superior Courts (No. 2) (Discovery) 1999. It has always been
part of the jurisprudence in relation to discovery and especially in relation
to non-party discovery that the issues in the case are first defined.
Therefore, normally discovery will not be made until after the close of
pleadings in a civil action. In
Allied
Irish Banks v. Ernst and Whinney
[1993] 1 IR 375 it was held that since the non-party cannot be expected to know
the issues raised by the pleadings with the same degree of precision as a party
the order should identify the issues. But none of this can be done in a
criminal proceeding. Only the prosecution must show its hand. Subject to
some modern statutory exceptions in relation to alibi evidence the defence is
entitled to spring surprises and above all is perfectly entitled, pending the
trial, to give no indication as to what issues might be raised. In that
state of affairs discovery of documents under the Rules of Court is wholly
inappropriate and it is another reason why those rules can never have been
intended to apply to criminal proceedings. It is true, of course, that the
Judicature Act definition of "
cause"
is repeated in O. 125 of the Rules of the Superior Courts and, therefore, that
word includes any criminal proceeding but by rule 1 of that order the
definitions are not to apply if "
there
is anything in the subject or context repugnant thereto".
This
court recently, in a unanimous unreported judgment, delivered on the 21st of
February 2001 by Fennelly J. held that the provisions for consolidation of
proceedings in O. 49, r. 6 of the Rules of the Superior Courts could not be
interpreted so as to permit consolidation of indictments in criminal matters
notwithstanding the inclusion of "
criminal
proceedings"
in the definition of "
cause".
Contextually, that definition was ousted. The name of the case is
Conlon
v. His Honour Judge Cyril Kelly and Others
.
11. The
only case in this jurisdiction cited before this court which dealt with the
question of non-party discovery in a criminal proceeding or indeed which dealt
in any way with the issue of whether discovery orders could be made in criminal
cases is a Circuit Court decision of Judge Moriarty (as he then was) in
The
People (Director of Public Prosecutions) v. Flynn and Keely
[1996] I I.L.R.M. 317. That was a case where non-party discovery was sought
in a Circuit Court criminal prosecution on the basis that under the Rules of
the Circuit Court if a particular situation is not provided for, the Rules of
the High Court apply and that since the Rules of the Superior Courts contain
provisions for non-party discovery and since furthermore the word "
cause"
under those rules included a criminal proceeding, the court could make an order
for non-party discovery. It would seem from the judgment of Judge Moriarty
that no issue was raised as to whether in the particular context of discovery "
cause"
could be considered as including a criminal proceeding. Judge Moriarty seems
to have assumed that he had jurisdiction to make the order but went on to
consider whether in fact he should do so. The learned Circuit Court judge
refused the application for the following reasons as set out in the headnote.
12. In
my opinion Judge Moriarty's reasons are impeccable save and except that he did
not advert to the contextual limitation on the definitions contained in the
Rules of the Superior Courts. Even if I was wrong in my view of the
contextual definition, I would still agree with the reasons given by Judge
Moriarty for refusing the application. In Mr. Cahill's book it is suggested
that Judge Moriarty was wrong on the basis that the rules applied the process
of discovery to criminal proceedings and that the High Court had given leave to
seek judicial review of Judge Moriarty's order. The High Court was bound to
grant leave if there was an arguable case but the granting of such leave could
not possibly be regarded as authority for the proposition that the High Court
was accepting that non-party discovery or indeed any discovery procedures
applied to criminal prosecutions. In another Circuit Court case
The
D.P.P. v. SK
Judge Dunne, in an unreported judgment, 14th December 1999, granted orders of
discovery against non-parties but her jurisdiction to do so does not seem to
have been raised and the only issue was privilege.
13. Privilege
was, of course, a major issue in this case also. But I intend to express no
views on it whatsoever. First of all the question of privilege would only
arise if I was of the view that the learned High Court judge was in all the
circumstances entitled to make the order which he made in principle.
Secondly, the question of privilege is not strictly speaking relevant to
whether a discovery order is made or not in the first instance. The issue of
privilege only arises if it is raised in relation to some of the documents
listed in the affidavit of discovery in which case the issue can be tried out
on a motion for further and better discovery. It is possible that this
privilege issue may arise in the course of the trial of Derek Sweeney if
witnesses from the Rape Crisis Centre are called, but at that stage it will be
a matter for the trial judge to determine the issue. Such an issue would be
evidential and not a discovery issue.
14. A
general consideration of the issue of privilege would certainly support the
view that the machinery of discovery as operated in civil proceedings could not
be applied to a criminal prosecution. The wide range of documents and
communications created in contemplation of criminal proceedings and which
justice would require the prosecution to make available to the defence would
almost certainly be privileged from production in civil proceedings.
15. For
the reasons which I have given, I am satisfied that there is an appeal from the
decision of Smith J. and I would allow that appeal and set aside the High Court
order.
16. I
think it important to add one rider. Nothing in my judgment should be
construed as expressing any view on the jurisdiction to make orders for
discovery including orders for non-party discovery in applications to the Court
of Criminal Appeal under section 2(1) of the Criminal Procedure Act, 1993.