(with whom Denham & Finnegan JJ concurred)
In the background to this appeal is a most important legal issue which has never been fully considered by the courts of this jurisdiction. That is the question of the right (if any) of an accused to production or at least sight of documents in the possession of third parties where such access is with reason considered by the accused’s legal advisers to be necessary to ensure a fair trial. There are different aspects to this problem. There is the question of whether there can ever be such legal access without the permission of the relevant third party. There is the question of whether a distinction might be made between state or state funded third parties and other third parties and then particularly in the context of statements made by a complainant in a sex crime case in the possession of a health board, as to whether there would be a countervailing duty of confidentiality. Misconceived attempts have been made to get around these difficulties. One of them has been the attempted invoking of the Rules of the Superior Courts relating to the discovery of documents. In two decisions of this court (The People (DPP) v Sweeney)  4 I.R. 102 and DH v Judge Groarke  3 I.R. 522 (the latter being a decision of a five judge court) it has been held that the rules relating to discovery of documents and in particular the rules relating to third party discovery in the Rules of the Superior Courts do not apply to criminal trials. For the reasons explained by Keane C.J. in the latter judgment the original regime of discovery of documents between parties and the later regime of third party discovery contained in the Rules of the Superior Courts were not intended to apply to criminal trials and are not appropriate having regard to the underlying purpose of those rules. It was made clear, however, by this court that its decisions in those cases were not in any way diminishing the obligations of the prosecution as to disclosure which is a quite different concept. That obligation of the prosecution has been traditionally viewed by the Director of Public Prosecutions as logically confined to documents within his possession or lawful procurement. It may be arguable as to whether this is too narrow a view of the Director of Public Prosecutions’s obligations. Certainly, the guidelines of the Attorney General of England and Wales relating to disclosure seems to suggest a rather wider obligation in that jurisdiction. This whole problem has been coped with in different ways in the jurisdictions of England and Wales, Canada, New South Wales and the USA and no doubt elsewhere also. There are areas still to be explored but as in the case of invoking the discovery procedures under the Rules of the Superior Courts, I am quite satisfied, as was the learned trial judge, Macken J. in this case that availing of deposition procedure is no solution. That is the only issue which arises in this appeal and it is the only issue I intend to address.
The appeal is an appeal against a refusal by the High Court to grant certain orders of certiorari, mandamus and prohibition and certain declarations by way of judicial review. Essentially, what happened was that the legal advisers of the appellant who was charged with sexual offences, considered it important to obtain Midland Health Board reports which at that time were not in the possession of the Director of Public Prosecutions. These reports were considered by the health board to be “privileged” in the loose sense that they were confidential reports relating to the complainant and perceived by the Board as being reports of interviews of a therapeutic nature.
When the appellant was originally charged, his former solicitors, on his instructions, argued that the case pre-dated the provisions of the Criminal Justice Act, 1999 and that it was still governed by the Criminal Procedure Act, 1967 and, therefore, involved the full preliminary examination. Furthermore, the said solicitors on instructions requested that there be depositions pursuant to section 7(2) of that Act. The District Court judge rejected the submission and sent the case forward for trial to the Central Criminal Court under the 1999 Act. However, there was a successful judicial review in the High Court it being held that the Criminal Procedure Act, 1967 did apply. At this stage the appellant had engaged his current solicitor, Mr. O’Neill, who wrote to the Chief Prosecution Solicitor prior to the case being remitted to the District Court seeking copies of all undisclosed statements and in particular requiring “all copies of all relevant material on garda investigation file, including all social work reports and material referring or dealing with the complainant”. Other correspondence then ensued and some months later Mr. O’Neill wrote to the Chief Prosecution Solicitor seeking “all social work, psychological and other assessments and reports pertaining to the alleged victim in this case who we understand as a minor was for some time living in a sexual relationship with an adult male” and also seeking “all relevant health board and other social work reports pertaining to the family of the alleged victim and her circumstances prior to the date of the alleged commission of the offence and up to date.”
The Chief Prosecution Solicitor at that stage wrote saying that counsel’s advice was awaited but in so far as the reports concerning the injured party and her family were concerned they were not in the possession of the office and that having regard to the Groarke and Sweeney cases cited above it would be up to the defendant’s lawyers to obtain them. Mr. O’Neill responded claiming that there was an obligation on the prosecution “to make full disclosure”. The inevitable answer came back that the Chief Prosecution Solicitor could not disclose what the office did not have.
It was then decided on behalf of the defence to call three health board witnesses as part of the depositions. They were all persons who had made statements to the gardaí and whose statements were contained in the book of evidence. The depositions commenced on the 10th January, 2003 but prior to them being taken, counsel for the appellant explained to the court that social work reports and material etc. had been sought through correspondence but could not be obtained through the Director of Public Prosecutions who did not have them. Counsel gave some details of what was believed to be contained in the reports being sought in particular, that there was reference to unlawful sexual activity on the part of a person other than the appellant and that at any rate the complainant was at the relevant time “out of control”. He submitted that any professional dealings relating to the mental state of the complainant would be relevant as to credibility and therefore, relevant to the defence. He submitted that the primary purpose at that juncture of taking depositions was to ascertain the identity of persons including professional persons with whom the complainant had contact. During the depositions, it in fact emerged that there were details with a number of social workers from the mental health board. This all led to further correspondence with the health board. It is referred to in the affidavit of Mr. O’Neill but which I do not think I need outline. The important point is that the solicitors for the Midland Health Board ultimately wrote to Mr. O’Neill to the following effect:
The Midland Health Board therefore would claim privilege with respect to its involvement with Ms.L as any information in the form of reports, interviews, notes or material concerning or dealing with Ms. L is on a confidential therapeutic basis.
Mr. O’Neill then proceeded to serve subpoenas duces tecum on (inter alios) a number of social workers connected with the health board. At a subsequent hearing of the depositions in camera one of the social workers was called to give evidence and counsel for the appellant sought sight of the notes of her first interview with the complainant Ms. L. Upon objection from counsel for the Director of Public Prosecutions on the basis that this was tantamount to using depositions as a means of obtaining third party disclosure, the judge (District Judge Reilly) intervened and after legal argument expressed the view that he had two contending obligations firstly, to protect the rights of the accused person to a fair trial and secondly, the rights of the complainant. He then refused to direct the witness to produce the documents. But he requested the health board file so that he could peruse it and decide if there was anything in it which could be disclosed to the defence. This approach was consented to by counsel for the appellant. The matter was then adjourned to the 15th April, 2003.
At the next hearing, the judge determined that in fact he was not in a position to proceed with the process which he had embarked upon because there appeared to be no settled Irish legal cases on the issue and that he would have to refer a consultative case stated to the High Court. The matter was further adjourned for that purpose but then subsequently the judge changed his mind in that he had ascertained that as the hearing at which he was engaged was not a summary trial but rather a preliminary hearing under the 1967 Act, he considered that he did not have jurisdiction to state a case.
The depositions then resumed and the argument broke out again about production of the documentation with the appellant requesting the judge to direct such production. The judge did not read the relevant document but said that he would deliver a written ruling on the matter. At the resumed hearing a ruling refusing to give such direction to the witness was delivered. It is that decision which was sought to be judicially reviewed in these proceedings.
By the time however that the judicial review proceedings came on for hearing before Macken J., an important and, indeed in my view, decisive factor had entered into the case. The Midland Health Board had in the meantime handed over its file to the Director of Public Prosecutions. The Director of Public Prosecutions then carried out the exercise relating to disclosure that is always in fact carried out. Several documents were made available with the consent of the complainant to the appellant’s solicitors. There was supplied to the appellant’s legal advisers in as Macken J. described it “the same way and pursuant to the same mechanism as takes place when considering documents already in the hands of that respondent, that is to say, when its own documents or any documents which come to it as part of a regular prosecution, are similarly made available.” It was argued, however, in the High Court that having regard to decisions such as In re Haughey and Murphy v Dublin Corporation the production exercise would have to be carried out by a judge and not by the Director of Public Prosecutions. For reasons, with which I entirely agree, the learned High Court judge rejected that submission. She held that the court could only become involved in the issue if there was some proven basis for suggesting a breach of the Director of Public Prosecutions’s duties. The matter could not be left to the court on a purely speculative basis.
Strictly speaking that was sufficient to entitle the judge to refuse the judicial review. However, Macken J. went on to consider the issues which would have arisen if that development had not taken place.
I will skip over the issues which the learned High Court judge correctly determined had already been decided in the Sweeney and Groarke cases. The judge next went on to consider the question of the entitlement of the appellant if he sought a deposition hearing to oblige a witness who had made no statement and who did not form any part of the book of evidence to produce and/or read notes or extracts or in some other way disclose the content of a file in the hands of that witness. The judge went on to point out that in the instant case the file was that of the Midland Health Board but that it contained the professional notes of a person working as a contact or adviser between the Midland Health Board and the family of the complainant including the complainant herself.
It was submitted on behalf of the appellant that a witness was obliged to furnish any document which the appellant sought to secure from the file notwithstanding that the file content was unknown to the appellant. The argument ran that there might be in the file material which might assist the appellant in his defence and he should, therefore, be permitted to full access to that file subject to such preconditions as to the distribution of the file as the judge taking the depositions should determine. Alternatively, the appellant argued that the file should be ruled on as to its content by the judge. It was argued on behalf of the Director of Public Prosecutions that this was a pure fishing exercise and as such not permissible. That had been the view of the District Court judge. Similar arguments were made on behalf of the health board. Indeed, it was strongly urged by counsel for the health board that the taking of depositions pursuant to section 7 of the Criminal Procedure Act, 1967 was so as to enable a judge of the District Court to make a decision pursuant to section 8 of the Act or to be used as evidence at the trial pursuant to section 15 of the Act. The appellant had not been in a position to contend that the evidence of the relevant health board witness or the content of her file were going to be used for the purpose of influencing the District Court judge as to whether he would return the appellant for trial or not or that the evidence would be adduced at the trial pursuant to section 15.
The learned High Court judge accepted the submissions of the respondents and I agree with her decision in this regard and her reasoning. The learned High Court judge pointed out that the deposition stage in criminal proceedings is intended as a means of ascertaining whether there is sufficient evidence or material upon which a judge of the District Court may determine to send forward a defendant for trial. Certain obiter dicta of Keane C.J. in DH v His Honour Judge Groarke, cited above, were used by way of counter argument. The words of the former Chief Justice were as follows:
The fact that discovery in the form provided for in the rules for civil litigation is not available in criminal proceedings does not have as a necessary consequence an erosion of the fair procedures to which defendants are entitled. Thus, in the present case, it was open to the solicitor for the applicant to ensure at the deposition stage that any relevant records or notes in the possession of the social workers were produced and, to at least a limited extent that was done. Moreover the social workers can be required by the applicant to attend the trial and produce any relevant documents by the issue of a subpoena duces tecum.
I agree with the view of the learned High Court judge that that statement must be read in context and did not have the wide meaning contended for. The crucial difference was that in that case the social workers had actually made a statement and appeared in the book of evidence and accordingly, it was appropriate to have that person examined in the course of a deposition hearing. The later part of the passage related to the trial itself. Macken J. pointed out that it was a long established principle that a subpoena duces tecum is not a disclosure device. The learned judge then adverted to what is, of course, obviously correct that even if there was such entitlement there would have to be a balancing exercise as between the desire of the defendant to have sight of the documents and any issues of confidentiality in relation to the complainant. However, those issues do not need to be considered in this judgment since quite clearly the deposition procedure cannot be used in the way it was.
Finally, the learned trial judge made the comment that the relevant documents were not within the procurement or control of the Director of Public Prosecutions and that she was not satisfied that a complainant was obliged to pursue a statutory body or was entitled at law to secure from it documents of the type found on the file of the notice party.
I also agree with those statements but subject to the proviso, that, as I mentioned at the beginning of this judgment, there may still be undecided issues as to a right in certain circumstances in a criminal case to procurement of documentation from a third party which is at least a state or state funded body but I think that it would be an issue that would have to be decided in a suitable case by the court which would ultimately be trying the defendant and on notice to the Director of Public Prosecutions, the body in question and the Attorney General.
The device of using or, more accurately, misusing the deposition procedure is even a less appropriate method of getting round the difficulty of obtaining documentation from a third party than the condemned use of the civil discovery procedure.
I agree with the view of the learned High Court judge therefore that the application for judicial review must be refused and indeed I agree with her reasoning on all the issues. I would, therefore, dismiss the appeal.
all rights reserved