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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Cunningham -v- The President of the Circuit Court & anor [2006] IESC 51 (26 July 2006)
URL: http://www.bailii.org/ie/cases/IESC/2006/S51.html
Cite as: [2006] 3 IR 541, [2007] 1 ILRM 521, [2006] IESC 51
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Judgment Title: Cunningham -v- The President of the Circuit Court &
anor Composition of Court: McGuinness J., Hardiman J., Kearns J. Judgment by: Hardiman J. Status of Judgment: Approved
Outcome: Allow And Vary | ||||||||||||||
- 2 - THE SUPREME
COURT McGuinness J. 117/06 Hardiman J. Kearns J. Between: CECILY
CUNNINGHAM Applicant and RespondentTHE PRESIDENT OF THE CIRCUIT COURT and THE DIRECTOR OF PUBLIC PROSECUTIONS JUDGMENT of Mr. Justice Hardiman delivered the 26th day of July, 2006. This is an appeal from the judgment and order of the High Court (Murphy J.) of the 19th December, 2005. The issue relates to whether or not an order for discovery in particular terms should be made against the second-named respondent, the Director of Public Prosecutions. Background. The applicant worked for many years as a biochemist with the Blood Transfusion Services Board. She has been charged with seven offences contrary to s.23 of the Offences against the Person Act, 1861. Three of these are alleged to have taken place in 1991 or 1992 and four in 1977. The form of charge in each case is the same:
Contrary to s.3 of the Offences against the Person Act, 1861”. The applicant was charged with these offences in July, 2003 and she sought relief by way of judicial review later in that year. She was originally charged jointly with a co-accused, Dr. Terry Walsh, who had been National Director of the Blood Transfusion Service. Dr. Walsh has regrettably since died. The applicant sought relief on the ground of delay. Very broadly, the allegation against her is that the health of each of the persons mentioned in the charges was impaired as a result of receiving contaminated Anti-D. This was a blood product produced by the Board while the applicant was employed by it as a biochemist, later as a principal grade biochemist. It is alleged that certain batches of the product were contaminated by using plasma taken from two named persons who had contracted Hepatitis C prior to the plasma being taken from them. Ms. Cunningham says that she always discharged her functions as an employee of the Board with due care and diligence “in accordance with the information and training made available to her and in conformity with the practise” at the relevant times. She says she obeyed the instructions given to her by those superior to her in the medical and general hierarchy of the Board. These include her former immediate scientific superior, his superior, the Assistant National Director and the National Director. All of these are now deceased except for one person who lives abroad. It is alleged that other persons relevant to the case are also deceased or unavailable. Due to widely publicised and tragic medical events, an Expert Group was established in 1994 to investigate inter alia “all the circumstances surrounding the infection of the Anti-D immunoglobin product” manufactured by the Board. The report of this body was published in 1995. In October, 1996, a Tribunal of Inquiry was established under the former Chief Justice, Mr. Justice Finlay, to inquire into the same topic and many other related matters. Mr. Justice Finlay delivered his report in March, 1997, and it was published at the same time. This report was furnished in the same month to the Director of Public Prosecutions with the request that its contents be considered. Also available were the stenographic record of the hearings before Mr. Justice Finlay consisting in all of thirty days of evidence and submissions. Garda investigations were set in train. Some six years and three months later the applicant was charged with the offences already referred to. The applicant says that she co-operated with the garda investigations and in particular attended an interview with the investigators in October, 1999. She says that it is clear from the questions and documentation put to her by the gardaí “that the garda investigation at that time was virtually complete”. The second-named respondent opposes the applicant’s claim, saying that the investigation into this matter “was one of the most complicated ever to have been mounted. This was due to the volume of material, the number of complainants and the complexity of the subject matter. In addition to the factual difficulties there were also legal difficulties”. The affidavits. A number of affidavits were filed by the respondent verifying the statement of opposition. In particular, and in relation to the period June, 2000, to April, 2003, it is said that queries emanating from the office of the Director had to be dealt with. Detective Superintendent John O’Mahony refers to these queries, arising in June, 2000, and refers to correspondence with the B.T.S.B. and a Dr. Yap. There was a further garda report to the Director in October, 2000, which “outlined that the investigation team were continuing with inquiries at the B.T.S.B. in an effort to further advance the responses required to matters raised by [the Director]… he further outlined that the gardaí were awaiting correspondence from Dr. Yap…”. The Superintendent also says “there was correspondence between the office of the D.P.P. and the investigation team seeking clarification and further investigations” and that these led to further inquiries which “were forwarded to the offices of the D.P.P. for its information. The correspondence referred to arose out of queries and clarifications sought by the office of the D.P.P. This correspondence was over a protracted period”. There were then references as to further requests for clarification and queries from counsel. These matters, including certain references to correspondence, also feature in the affidavits of Mr. Declan Murphy and Mr. Jarlath Spellman, both at the time professional officers of the D.P.P., sworn on behalf of the Director. The applicant sought and obtained leave to cross-examine Mr. Murphy and Mr. Spellman on their affidavits. Motion for Discovery. After some correspondence, the applicant issued a notice of motion for discovery of certain categories of documents. By order of the 19th December, 2005, she was granted discovery of “all documents relating to communication between the prosecuting authorities and the B.T.S.B. after October, 1999, in relation to the criminal investigation resulting in the prosecution of the applicant herein and all documents touching or concerning or relating to communication between the prosecution authorities and Dr. Yap after October, 1999, in relation to the criminal investigation resulting in the prosecution of the applicant herein”. She was however refused an order of discovery in relation to:
(i) The report of Detective Chief Superintendent Séan Caman referred to in paragraph 33 of the affidavit of Detective Superintendent John O’Mahony; (ii) The correspondence referred to in paragraph 34 and 35 of the affidavit of Detective Superintendent John O’Mahony; (iii) The correspondence referred to in paragraph 7 of the affidavit of Jarlath Spellman sworn on the 19th May, 2004, all of which correspondence is not exhibited”. The applicant points out that one of the issues for resolution in the judicial review proceedings is whether the prosecution proceeded with due expedition. The Director put forward, amongst the reasons for the long delay, the ongoing correspondence between his office and the persons mentioned in the affidavits. This correspondence however is not exhibited and the subject matter of it is, for the most part, not fully identified. Only one additional statement, appearing at p.114 of the Book of Evidence appears to have been taken as a result of the ongoing correspondence. Accordingly, the correspondence has been “deployed” in this litigation for the purpose of supporting the respondent’s case, in a manner which permits of no real contradiction by the applicant. Furthermore, it will be difficult or impossible effectively to cross-examine two of the deponents on behalf of the respondent, the two officials from the office of the D.P.P., without sight of the correspondence and an ability to say whether or not it indeed supports the case made, and meets the description given in the affidavits. Respondent’s case. The Director says that the proper approach to the question of prosecutorial delay is not to conduct a “micro analysis” of every step taken and every direction given, or to conduct a complete documentary review. Rather, there should be “a more general analysis of broad periods of time in question and the general steps that were being taken in the investigation”. He says that if the applicant succeeds in her application then “in future every prosecutorial delay case will become a mechanism whereby applicants can penetrate the decision making processes of the D.P.P. and can obtain the D.P.P. file on a case”. This would undermine the special protection of the Director, recently acknowledged in this Court in Dunphy v. D.P.P. [2006] 1 ILRM 241. The applicant is engaged in a fishing expedition. Furthermore, although she says she is not seeking the reasons for her prosecution, or seeking to attack the special protection available to the reasons for the decision to prosecute, she is in fact doing so. The Director of Public Prosecutions has only one core function: to decide whether to prosecute or not to do so. Accordingly, all correspondence engaged in by him relates to that core function, which is heavily protected at law against any requirement to give reasons for his decisions. The Director says the applicant is effectively seeking to appeal or circumvent the recent and authoritative decision in Dunphy and that “unsustainable discovery applications that fly in the face of settled Supreme Court jurisprudence but which are nonetheless appealed all the way to the Supreme Court hold an obvious attraction to applicants who have no particular desire to face a trial with expedition”. In reply, the applicant said that the respondent’s submissions were based on a misrepresentation of her case. She was not seeking the reasons for the decision to prosecute her, nor was she challenging that decision. She was relying on the delay, not seeking to impugn the decision to prosecute. She was seeking discovery of correspondence which had been deployed for the purpose of litigation by the respondent himself. It was this fact, primarily, that grounded her entitlement to discovery. Decision. It will be seen that no suggestion has been made by the respondent that the correspondence in question is irrelevant to the matters at issue in the judicial review proceedings. This indeed could hardly be said since the correspondence has been mentioned in the affidavits filed on behalf of the respondent, and only in that way came to the attention of the applicant. But a strong case is made by the respondent that he should nonetheless not have to make discovery because to do so would undermine his special position in relation to the reasons for his decisions, recognised in Dunphy. The Director says that this is so even though it would be open to him to claim privilege in respect of any particular item of correspondence or indeed of every item. Dunphy was a case of a teenage girl charged with possession of controlled drugs. She sought prohibition preventing her trial substantially on the ground that another girl who had been in the possession of the same drugs had not been charged but had been dealt with by caution under the Juvenile Liaison Scheme. She said that this disparity of treatment was prima facie evidence of an unfairness in the decision to prosecute her. She did not deny however that she herself had previously had the benefit of the Juvenile Liaison Scheme, whereas the other girl had not. In the course of the proceedings she sought discovery of the respondent’s reasons for prosecuting her. This was refused both in the High Court and in this Court. The portion of my judgment in Dunphy on which the Director principally relies is at page 254. Certain other cases cited were distinguished on the grounds that they related to:
The applicant places primary reliance on the deployment of the correspondence by the Director himself. It is this factor, in particular, that she claims makes the Dunphy decision wholly inapplicable as authority. Dunphy was not a delay case, but a direct challenge to the decision to prosecute itself. This case is a delay case and she simply seeks discovery of material expressly relied upon by her opponent to justify that delay. The reference, in the judgment in Dunphy to a “special evidential standard for the applicant” in cases where the D.P.P. decision to prosecute or not to prosecute is challenged, is a reference to the principles emerging from such cases as Eviston v. D.P.P. [2002] 3 IR 260. In that case, the applicant was involved in a traffic accident in which a man was unfortunately killed. She tendered a full explanation to the gardaí, supported by an engineer’s report, relying on a mechanical defect of which she could not reasonably have been aware. The Director decided not to prosecute. This decision was communicated to the applicant. Later, the deceased man’s family having made representations, the case was re-examined and a decision to prosecute was taken. There was no change in the evidence available at the time of this second decision. This decision was successfully reviewed. Having surveyed cases on the topic Keane C.J. said:
The principle, to which the Eviston case was an exception, was stated by Keane C.J. to be:
‘(a) No prima facie case of mala fides has been made out against the respondent; (b) There is no evidence on which it could be inferred that he has abdicated his functions or been improperly motivated and (c) The facts of the case do not exclude the reasonable possibility of a proper and valid decision of the respondent not to prosecute the person concerned’.” In the course of an affidavit filed on behalf of the Director, a garda superintendent referred to a letter from the Director. He did not quote it but his next statement was as to the intention of the Director about the venue of trial. He further said that the letter raised “certain queries in relation to certain matters”. He said he sent “copies of the correspondence” to another member of the gardai to deal with. In that case, unlike the present one, the correspondence in question had already been disclosed in an affidavit of discovery so that the issue arose on the applicant’s claim to inspection. The Court referred to Matthews and Malek Discovery (London, 1992) at paragraph 9.15;
Furthermore, no grounds specific to the document itself has been urged against disclosure. The document seems clearly capable of advancing one party’s case or damaging that of the other, to adopt the classic statement in The Compagnie Financiere et Commerciale du Pacifique v. The Peruvian Guano Company [1882] 11 QBD 55.” There are clear similarities between the factual matrix of Hannigan and that present here. The principal similarity is that the material targeted by the party seeking discovery was in each case material referred to in an affidavit filed on behalf of the respondent. In neither case, therefore, was there any issue as to relevance. A point of distinction arises, however, in that the Director had made an affidavit of discovery in Hannigan whereas he declines to do so here. In doing so, he relies on a dictum of my own in Dunphy:
I am quite happy to reiterate all that was said in Dunphy, but I do not think it assists the respondent here. Dunphy was an express and direct attempt to obtain discovery of the respondent’s reasons to prosecute in circumstances where the applicant was unable to point even to evidence suggestive of any impropriety on the Director’s part. This was a direct challenge to a long established immunity or protection of the Directors without any show of the sort of oddity or absence of fair procedures which had availed the applicant in Eviston. In such circumstances the application for discovery was simply unstateable: granting it would have given countenance to an unstateable case and involved the Director in taking some steps at least towards “seeking to justify that which should not require to be justified”, to adopt the phrase of O’Flaherty J. in H. v. The Director of Public Prosecutions [1994] 2 IR 589. This case is of a different sort. After two lengthy inquiries, one by an Expert Group and one by the former Chief Justice, the Director or his agents came into possession of an enormous amount of material including transcripts of the examination and cross-examination of the applicant and all the relevant parties who were still alive at the time of the former Chief Justice’s inquiry. But the file remained in the Director’s office for the ostensibly very lengthy period of 6 ¼ years before the applicant was charged. This period of time may, of course, turn out to be quite justifiable, but it requires to be justified. This indeed seems to be the view of the Director as well because he has filed three affidavits seeking to do just that, referring to the complexity of the case in general and other matters. Amongst these other matters, however, is correspondence said to have gone on over a protracted period. This appears to me to engage precisely the principle set out Nenea Karteria, cited above: that Ms. Cunningham must have the opportunity of satisfying herself that what the opposite party has chosen to refer to represents the whole of the material relevant to the issue in question, and is accurately characterised. This finding in no way removes, reduces, or limits the special position of the Director of Public Prosecutions in relation to giving reasons for his decisions to prosecute or not to do so. Indeed, I wish to reiterate what I said on that topic in Dunphy. That protection is in no way diluted by the granting of the relief sought here, which is merely that the respondent or his agent should make an affidavit of discovery. He has the fullest entitlement to claim privilege over any document, over all documents, or over any portion of any document as he may be advised or think fit. But he must list every document, whether he is willing to disclose it or not. If an objection to produce any document is made it will be dealt with in accordance with law. Cecily Cunningham | ||||||||||||||