Supreme Court allows appeal against non-party discovery order, ruling civil discovery rules do not apply to criminal prosecutions.

THE SUPREME COURT

Murphy J.

Murray J.

Geoghegan J.

151/00

IN THE MATTER OF A PROSECUTION ENTITLED

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

Prosecutor

and

DEREK SWEENEY

Accused

BILL NO. CC 158/99

AND IN THE MATTER OF AN APPLICATION FOR AN ORDER OF DISCOVERY

BETWEEN/

DEREK SWEENEY

Applicant/Respondent

AND THE RAPE CRISIS CENTRE

Respondent/Appellant

AND THE DIRECTOR OF PUBLIC PROSECUTIONS

Notice Party/Notice Party

AND BY ORDER OF THE COURT MADE ON THE 6TH OF JUNE 2000

Á.C. AND S. C.

Notice Parties/Notice Parties

Judgment of Mr. Justice Geoghegan delivered the 9th day of October 2001

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:-

"The right of appeal to the Supreme Court, other than an appeal under section 34 of the Criminal Procedure Act, 1967,

from a decision of the Central Criminal Court is hereby abolished."

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.

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:-

"This matter coming before the court this day on Motion for Discovery on behalf of the applicant herein and on reading

the documents filed and on hearing Ms. Ring B.L. of counsel for the applicant and Mr. McCabe B.L. of counsel for the

respondent herein and Mr. Sweetman B.L. of counsel for the notice party, the court DOTH MAKE Order for Discovery of

the documents in the matter in question in the possession, power or procurement of the respondent as set out in

paragraph (a) and (b) in the Notice of Motion and the Court DOTH ORDER that such discoveries be made on affidavit by

the 14th of June 2000 Ms. Geraldine Conroy making the affidavit on behalf of the respondent and grant a stay for forty

eight hours with no further order."

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.

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:-

"Subject to any Rules of Court to be made under and by virtue of this Act, the practice and procedure in all criminal

causes and matters whatsoever in the High Court of Justice, including the practice and procedure with respect to Crown

cases reserved shall be the same as the practice and procedure in similar causes and matters before the passing of this

Act....".

Section 32 of the same Act provides that assizes were deemed to be a court of the High Court of Justice.

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:-

"The Central Criminal Court shall have and may exercise every jurisdiction in criminal matters for the time being vested

in the High Court, and every person lawfully brought before the Central Criminal Court for trial in exercise of any such

jurisdiction may be indicted before and tried and sentenced by that court wherever it may be sitting in like manner and

in all respects as if the crime with which such person is charged had been committed in the county or county borough in

which the said court is sitting."

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.

In Mr. Eamonn Cahill's book "Discovery in Ireland" published in 1996 the following sentence appears at p. 69:-

"In Murphy v. Dublin Corporation the Supreme Court applied the principle to civil cases only and reserved for further

consideration issues which could arise when a refusal to disclose relevant documents could result in the condemnation of

an innocent person in a criminal case. These principles have now been accepted as applicable to criminal cases."

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.

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.

"1. While O. 31, r. 29 of the Rules of the Superior Courts, 1986 left open the possibility of ordering discovery in criminal

cases there was no authority which would support the making of such an order.

2. The principle that each party should be entitled to know from the other in advance any information that would

enhance his own case or destroy his adversary's case was less applicable in criminal proceedings where the entire

burden of proof rested on the prosecution.

3. Discovery was intended to be mutual between the parties and it could not be mutual in a criminal case because it

would not be ordered against the accused. It followed that a non-party should not be subjected to a greater obligation

that could be imposed on the accused.

4. There had been excessive delay in bringing the application.

5. The complainant in a criminal case is bound to supply the D.P.P. with any information relevant to the case whether

favourable to the prosecution or the accused. The judge is obliged to ensure that fair procedures are observed at the

trial. If the prosecution cannot obtain evidence disclosure of which is necessary for the purposes of the defence the

accused may be entitled to a direction on the relevant counts."

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.

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.

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.

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.

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.