Supreme Court allows appeal to order oral examination of witness protection officer regarding state debts owed to imprisoned defendant.

THE SUPREME COURT

Keane C.J.

Denham J.

Geoghegan J.

8/03

BETWEEN

MARTIN FOLEY

PLAINTIFF/APPELLANT

AND

CHARLES BOWDEN

DEFENDANT

AND

THE COMMISSIONER OF AN GARDA SIOCHANA

NOTICE PARTY/RESPONDENT

JUDGMENT delivered the 23rd day of June 2003, by Keane C.J.

The facts in this case, the arguments in which have raised some novel and interesting issues, are not to any serious extent in

dispute. The plaintiff was shot in the finger and the lung outside his house in Dublin by an unidentified assailant. It is said on his

behalf that, in the course of criminal proceedings entitled The People at the Suit of the Director of Public Prosecutions –v- Brian

Meehan which were heard by the Special Criminal Court in July 1999, the defendant in the present proceedings admitted under oath

that he provided the weapon and instructed an unidentified person to carry out this attack. These proceedings were then instituted

by the plaintiff against the defendant claiming damages for personal injuries sustained by him as a result of what he asserted to be

the negligence, breach of duty, breach of statutory duty and breach of his constitutional rights by the defendant. On the 22nd July

1999 the plenary summons was served personally on the defendant who was at that time serving a term of imprisonment in Arbour Hill

Prison. A statement of claim was subsequently delivered on 1st December 1999. The plaintiff having obtained judgment in the High

Court in default of appearance against the defendant on 13th December 1999, the damages were subsequently assessed by Kinlen J

who awarded the plaintiff the sum of £120,000 (€152,368.57) on 15th November 2000. The costs of the action were taxed on 23rd

February 2001 in the sum of £31,978.85 (€40,604.77). There is, accordingly, a sum of £151,978.85 (€192,973.33) now owing to the

plaintiff on foot of the judgment.

It is also not in dispute that the defendant is a participant in what is known as a “witness protection scheme”. Under the scheme, he

has been relocated abroad, in return for giving evidence for the prosecution in criminal proceedings arising out of the murder of the

journalist, Veronica Guerin. The plaintiff’s legal advisors were of the view that since there was at least a possibility that he was owed

sums of money by the State under the scheme, an application for a garnishee order should be made so as to secure the attachment

of debts owed by the State to the defendant.

With a view to bringing such an application, the notice of motion which is the subject of the present appeal was served on the Notice

Party (hereafter “the Commissioner”). In the notice of motion, the plaintiff sought an order pursuant to Order 42, Rule 36 of the Rules

of the Superior Courts directing that the Commissioner – or such other person as the court might consider appropriate – be orally

examined in order to ascertain what debts are owed by the State to the defendant.

The notice of motion was grounded on an affidavit by the solicitor for the plaintiff in which he deposed that the plaintiff was now

unable to execute the judgment against the defendant. He further deposed that there was at least a probability that the State had

entered into a contractual arrangement with the defendant which provided for the continuing payment of sums of money by way of

maintenance payments to the defendant and that the agreement included a term providing for the granting of an indemnity by the

State to the defendant in respect of his existing liabilities. He further deposed that, although he had written on a number of occasions

to the Chief State Solicitor seeking information of this nature, he had received no reply to his letters. No replying affidavit was filed on

behalf of the Commissioner. The notice of motion having come on for hearing in the High Court before O’Neill J, he refused the

application in a written judgment dated the 4th December 2002.

In his judgment, the learned High Court judge said that he was satisfied that the examination sought could be carried out without

tending to reveal details as to the new identity of, or location of, the defendant. He was, however, also satisfied that even disclosure

of so confined a nature as that sought by the plaintiff would be sufficient to give rise to what he described as “a real apprehension”

on the part of future participants in the programme that their new identity and location would not be protected from disclosure. He

was also of the view that the fact that monetary benefits available under the scheme could be made amenable to a process of

execution might also deter potential witnesses from participating in the scheme. He accordingly concluded that granting the relief

sought would be contrary to the public interest in ensuring that the evidence of potential participants in the witness protection

programme would be available for the prosecution of serious crime.

The learned judge added that, in his view, contrary to what had been argued on behalf of the plaintiff, the inclusion of the defendant

in the witness protection scheme would not inhibit the plaintiff in the execution of his judgment. He said that if he were to grant the

relief sought, the plaintiff would be put in a substantially better position by reason of the defendant being a participant in the scheme

and that this would not be justified.

It is agreed that the only statutory reference to the scheme is to be found in S.40 of the Criminal Justice Act 1999, subsection (1) of

which provides that

“a person who without lawful authority makes enquiries or takes any other steps whatever, whether within or outside the

State, for the purpose of discovering –

(a) the whereabouts of a person whom he/she knows, or reasonably suspects, to be a relocated witness or

(b) any new name or other particulars related to any new identity provided for any such a witness

shall be guilty of an offence.”

Subsection (3) defines the expression “relocated witness” as

“any person who intends to give or has given evidence in proceedings for an offence and who as a consequence has moved

residence, under any programme operated by the Garda Siochana for the protection of witnesses, to any place, whether

within or outside the State.”

Subsection (4) provides that the expression “lawful authority” means the authority of a court in any proceedings involving the

relocated witness or a member of the Garda Siochana not below the rank of Chief Superintendent. Subsection (5) provides that a

court is not to give such authority unless it is satisfied

“ (a) that to do so would be in the interests of justice, and

(b) that another way of proceeding which would not prejudice the continued participation of the relocated witness in the

programme aforesaid, including, without prejudice to the generality of the foregoing, the transmission of any documents

required to be served on the witness to the Commissioner … for the purpose of effecting such service, is not available.”

Order 42, Rule 36, of the Rules of the Superior Courts provides that

“When a judgment or order is for the recovery or payment of money, the party entitled to enforce it may apply to the court

for an order that the debtor liable under such judgment or order, or in a case of a corporation that any officer thereof, or

that any other person be orally examined as to whether any and what debts are owing to the debtor, and whether the debtor

has any and what other property or means of satisfying the judgment or order, before a judge or an officer of the court as

the court shall appoint; and the court may make an order for the attendance and the examination of such debtor, or of any

other person, and for the production of any books or documents.”

The finding by the learned High Court judge that the granting of an order under this rule to the plaintiff would not necessarily have

the result of disclosing the location or new identity of the defendant in contravention of the provisions of S.40 of the 1999 Act was

not challenged on behalf of the Commissioner in the appeal to this court. The plaintiff’s application does, however, give rise to an

initial difficulty, having regard to his understandable inability to adduce any evidence in the High Court as to whether there are indeed

any sums owing by the State to the defendant under the witness protection scheme.

It is true that Rule 36 provides that the debtor or “any other person” may be orally examined as to “whether any and what debts are

owing to the debtor” and that in Patterson –v- Doyle [1878] 4LR Ir 33, the court made such an order, although the judgment creditor

did not depose to his belief that any such debts were owing.

That, however, was not a case where, as here, the order was sought against a person other than the judgment debtor.

The fact remains that there is no indication in the rule that there is any obligation on the judgment creditor to satisfy the court that

the judgment debtor is in fact owed any sum by the person against whom it is hoped to obtain an order of garnishee. Moreover, in

this case, the Commissioner, for understandable reasons, has declined to file any affidavit in response to the grounding affidavit of

the plaintiff’s solicitor and one has to proceed on the assumption that there is at least a possibility that there may be sums which

could be the subject of an order of garnishee.

The plaintiff, accordingly, in my view, reaches the relatively low threshold which appears to be fixed for the making of an order under

the rule. The issue then arises as to whether, for the reasons set out by the learned High Court judge, the order should be refused

because it might imperil the effective operation of the witness protection scheme. That scheme has certainly been afforded a form of

implied statutory recognition under the provisions to which I have already referred. Moreover, while it can hardly be said that there is

a defined and recognised public policy of maintaining in existence schemes of this nature, it was undoubtedly within the competence

of the executive and the legislature to adopt such a scheme, provided the constitutional rights of any persons affected were

observed. Moreover, it must be assumed in favour of the legislature and the executive that the scheme was adopted in order to

assist in the prosecution of serious crime and it is, of course, beyond argument that the achievement of that objective is in the public

interest.

If it were the case that requiring the Commissioner, or whoever the appropriate officer may be, to attend before the High Court for

the purpose of being orally examined as to any sums which may be owing to the judgment debtor under that scheme and producing

any documents relevant thereto of itself would imperil the successful implementation of the scheme in the future, I would agree with

the conclusion of the learned High Court judge that the order should not be granted. It is not clear, however, that that would

necessarily be the case. It does not follow that, because the relevant documents will be available at the hearing in the High Court,

they must, in every instance, be produced for the inspection of the plaintiff or his legal advisors. On the contrary, if the officer

objects to the production of any document on the grounds that its disclosure would not be in the public interest, the judge before

whom the examination is being held can rule on the validity of that objection and, if necessary, can inspect the document himself or

herself without its being furnished for inspection to anyone else. It may be that such an inspection may not be necessary and the

very nature of the document may be such that the judge will be able to rule that its production would not be in the public interest

and that the public interest in question is not outweighed by any legitimate interest of the plaintiff. Similarly, there should be no

essential difficulty in the examination being conducted in a manner which does not disclose either the new identity or the new

location of the defendant.

Given the constitutional right of the plaintiff to have access to the courts and to be in a position, so far as the law can enable him so

to do, to execute any judgment he has obtained, I am satisfied that he should at least be given the opportunity of having such an

oral examination of the relevant officer. Indeed, Mr. George Bermingham SC, on behalf of the Commissioner, fairly conceded that it

was the wide ranging nature of the relief apparently being sought which was the substantial ground of objection so far as his client

was concerned.

We were referred during the course of the argument to cases which have been decided in the United States courts as to the possible

conflict between the operation of a witness protection scheme and the constitutional rights of other persons (Melo – Tone Pending

Inc., -v- United States of America [1981] US App. Lexis 15472; Franz –v- USA (229 US App. DC. 396). In that jurisdiction, legislation

has provided in detail for the establishment of witness protection schemes and the decisions in question consider the extent to which

such schemes when, established by legislation, may legitimately interfere with constitutional rights of other citizens such as rights of

access to children and rights of property. The issues, accordingly, with which they were concerned, are more far reaching than those

under consideration in the present case and, accordingly, I do not find it necessary to consider them in any detail.

I would allow the appeal and substitute for the order of the High Court an order directing the Commissioner or such person as he may

nominate to be orally examined in order to ascertain what debts (if any) are owed by the State to the defendant.