District Court refuses accused's application for additional disclosure in summary criminal trial of harassment offence.

THE DISTRICT COURT DUBLIN METROPOLITAN DISTRICT

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA GARY CLEARY)

PROSECUTOR

- AND -

PATRICK CULLEN

ACCUSED

Determination delivered by Judge Brian O’Shea on the 14th day of April 2021

1. This is an application by the Accused to compel disclosure in advance of his summary criminal trial.

2. The Accused is charged with an offence contrary to subsection 10(1) of the Non-Fatal Offences Against the Person Act 1997, in particular that between 14 April 2017 and 6 July 2019 he harassed Hinda Bloom and Peter Kelly.

3. The complaint was laid before the District Court on 20 May 2020 by way of the statutory charge sheet procedure involving evidence of arrest, charge and caution. On that date a non-specific disclosure order was made. While technically the order was premature such orders are often made in the District Court with the intention of expediting matters and reducing unnecessary court events.

4. On 16 September 2020 the defence solicitor raised the issue of disclosure and following brief submissions was ultimately asked by the court to write to the Prosecutor seeking any specific items of disclosure that he deemed to be outstanding.

5. On 25 November 2020 the Prosecutor directed that the case be tried summarily and, having heard an outline of the alleged facts, the court accepted jurisdiction. The defence solicitor indicated that he had received a report from an information technology consultant in relation to Facebook posts and that in his opinion this was relevant to his disclosure requests. At the time he did not expand on this point.

6. On 17 February 2021 the defence solicitor indicated to the court that the disclosure he had sought was still outstanding.

7. Ultimately a dispute has arisen between the Prosecutor and the defence solicitor regarding the disclosure sought and this court has been asked to determine the issue. On

10 March 2021 the court assigned a hearing date of 24 March 2021 for the disclosure issue to be heard and determined.

8. Amongst other things, without objection, the correspondence shared between the parties on the issue of disclosure was furnished to the court. It sets out in essence the material sought and the respective opinion of both parties regarding the requirement to disclose the said material.

9. It is evident from the said correspondence that at 9:21 a.m. on 17 February 2021 the defence solicitor sent an email to the prosecuting garda attaching a formal letter requesting the garda to furnish a number of items to the defence, as follows:

a) Copy of the handwritten and typed witness statements of Garda Tony Byrne, Garda 33630M;

b) Copy of the handwritten statements made by Hinda Bloom;

c) Copy of the handwritten statement made by Peter Kelly;

d) Copy of Hinda Bloom’s home CCTV footage recording Patrick Cullen, his family, his business and clients, and his property at 305 Clonard Road made between the 14th April 2017 and 7th December 2019;

e) Full details of all Hinda Bloom’s Facebook posts concerning Patrick Cullen, his family, his business, and his property at 305 Clonard Road, including those posts between herself, Michelle Smith and others made between the 14th April 2017 to date;

f) Details of Hinda Bloom’s telephone and broadband provider alone with her home IP address;

g) Details of the IP address(es) that Michelle Smith used to communicate with Hinda Bloom in her Facebook posts;

h) Inspection of Hinda Bloom’s Facebook account relating to the above Facebook posts and dates;

i) Inspection by a competent person nominated by and on behalf of Mr Patrick Cullen of the CCTV facilities located at the residence of Hinda Bloom and Peter Kelly;

j) Inspection of Hinda Bloom’s computer/laptop and mobile phone(s) regarding entries made concerning Mr Patrick Cullen, his family, his business and clients or his property between the 14th April 2017 to date;

k) Inspection of Peter Kelly’s computer/laptop and mobile phone(s) regarding entries made concerning Mr Patrick Cullen, his family, his business and clients or his property between the 14th April 2017 to date;

l) Full details of all the complaints made by telephone (national and international) or verbally or in writing against Mr Patrick Cullen to An Garda Siochana by Hinda Bloom in the last five years;

m) Full details of all the complaints made by telephone (national and international) or verbally or in writing against Mr Patrick Cullen to An Garda Siochana by Peter Kelly in the last five years;

n) A copy of the Search Warrant and Sworn (sic) used to search Mr Cullen’s property and business at 605 Clonard Road, Crumlin, Dublin 12 which warrant was executed by Garda Andy Brennan and Garda Sara Jane Hoey together with a copy of the Sworn Information used to obtain that warrant;

o) Copies of any and all e-mail or other correspondence between Hinda Bloom, Peter Kelly and the following witnesses who made statements against Mr Patrick Cullen including David Scally, Ross Forde, Carlagh Casey, John Tunney and An Garda Siochana;

p) The tape recording made by Mr Tunney and referred to in his statement of evidence;

q) Copy of Peter Kelly’s complaint made against Mr Patrick Cullen relating to events which occurred at the Circle K Garage situated at Kimmage on 29th November 2019 and confirmation that Peter Kelly received and (sic) Adult Caution relating to those events;

r) Details of any and all criminal convictions including adult cautions recorded against Hinda Bloom, Peter Kelly and the following witnesses who made statements against you (sic) including David Scally, Ross Forde, Carlagh Casey and John Tunney;

s) Handwritten and signed copies of all other witness statements whose typed witness statements have already been disclosed.

10. At 2:44am on 27 February 2021 the prosecuting garda emailed the defence solicitor attaching several items of disclosure as follows:

a) Typed copies of all garda statements

b) Typed copies of all witness statements

c) Copy of the custody record relating to the Accused

d) Memo of interview of the Accused by gardai

e) Copy of all exhibits put to the Accused during the interview

f) Copy of all pictures introduced by the Accused during his interview

11. The email from the prosecuting garda to the defence solicitor confirmed that the CCTV put to the Accused during his interview by the gardai together with a potentially relevant voice recording (item ‘p’ in the email dated 17 February 2021) would be delivered by hand to the defence solicitor on 3 March 2021. This disclosure has since been made.

Finally, the email confirmed that insofar as the prosecuting garda was concerned “all items which relate to this case have now been disclosed.”

12. On 10 March 2021 it was confirmed to the court by the defence solicitor that the items at paragraph d) and p) of the disclosure letter dated 17 February 2021 are no longer in issue.

13. On 23 March 2021 the defence solicitor sent a further letter to the prosecuting garda.

That letter reveals that the Accused instructed his solicitor that from his perspective there is a land dispute at the centre of the complaints made by the complainants to An Garda Siochana in the instant criminal proceedings. Further the letter confirms that the Accused has made complaints about Hinda Bloom to Dublin City Council as a result of which he alleges she had to take remedial action.

14. For the most part the letter dated 23 March 2021 categorises the items remaining in issue from the earlier letter of 17 February 2021 into groups and suggests reasons for the disclosure of each group. Amongst other things, the letter asserts that the primary reason the items are sought is because they are “deemed necessary and relevant for my Client to properly defend the allegation made against him, that he receives a fair trial, and to demonstrate that the allegations made against him are vexatious and otherwise malicious.”

15. On 9 April 2021 the Chief Prosecution Solicitor wrote to the defence solicitor. In essence she takes issue with the relevance of the material sought to be furnished and also with the level of disclosure sought in the context of a summary trial. She confirms that the Prosecutor has already furnished the following items:

a) Handwritten and typed statements of Hinda Bloom

b) Handwritten and typed statements of Peter Kelly

c) Handwritten and typed statements of David Scally

d) Handwritten and typed statements of Ross Forde

e) Handwritten and typed statements of Carlagh Casey

f) Handwritten and typed statements of John Tunney

g) Typed statement of garda Tony Byrne

h) Typed statement of garda Gary Cleary

i) Memo of interview of the Accused by gardai

j) Copy of all photographs introduced by the Accused during his interview

k) Copy of all exhibits put to the Accused during the interview

l) CCTV relating to the investigation

This is consistent with email of the prosecuting garda dated 27 February 2021, save that the relevant custody record was also furnished, which is not in dispute. The Chief State Solicitor also indicates that the prosecution will further provide a statement of the member-in-charge, the “gaoler” and the garda who downloaded the CCTV that was already furnished. Finally, she sets out a number or items that the defence argue are outstanding. She categorises those items as either irrelevant (e.g. Facebook posts, a search warrant relating to a different matter altogether, and so on), third party disclosure (e.g. IP addresses of individuals), or items that do not in fact exist (e.g. CCTV other than that already disclosed). It is not necessary to itemise each and every one of the items for reasons that will become apparent later in this judgment. There is, however, one item on the list that the Prosecutor has undertaken to inquire into, namely “Full details of all complaints made against the accused by Hinda Bloom in the last five years.” Accordingly, it is not necessary to make a determination on this particular piece of potential evidence.

16. At this juncture it is appropriate to state some legal principles that apply in applications of this nature. Firstly, there is a significant distinction between discovery (and thereafter inspection) in civil proceedings versus disclosure in criminal proceedings. As a matter of law discovery has no place in the criminal process. In the Supreme Court decision of People (DPP) v Sweeney [2001] 4 IR 102, Geoghegan J considered that the discovery process is wholly inappropriate to criminal proceedings, save for some exceptions including statutory exceptions, none of which have any application to the instant case.

That decision was later upheld and followed in D.H. v. Groarke [2002] 3 IR 522.

17. Secondly there is duty, which is ongoing, on the Prosecutor to disclose relevant material that is within its possession including material that might assist the defence or harm the prosecution. In People (DPP) v Tuite (1983) 2 Frewen 175 at 180-181 McCarthy J held:

“The constitutional right to fair procedures demands that the prosecution be conducted fairly; it is the duty of the prosecution, whether adducing such evidence or not, where possible, to make available all relevant evidence, parol or otherwise, in its possession, so that if the prosecution does not adduce such evidence, the defence may, if it wishes, do so.”

18. Thirdly, all evidence in issue must be relevant. It is axiomatic that the purpose of adducing evidence is to establish facts. So, for example, if a fact is admitted then the evidence sought to be adduced to establish such a fact becomes irrelevant. Similarly, if the fact sought to be established is irrelevant then so too is any evidence sought to be admitted in order to establish such a fact. According to Tuite relevance in the context of disclosure means relevant to the prosecution or relevant to the defence case by assisting the defence or harming the prosecution. Again, once the evidence is relevant there is a general duty to disclose even if the prosecution does not rely on the evidence at trial (see for example Traynor v Delahunt [2009] 1 IR 605).

19. Another important feature of this application is that the superior courts have drawn a distinction between the level of disclosure required in indictable matters as opposed to summary proceedings. The law regarding disclosure in criminal cases in the District Court is set out with great clarity in the Supreme Court decision in DPP v Gary Doyle [1994] 2 IR 286, a case often cited but less frequently read in detail.

20. In Doyle the accused was charged with an indictable offence that was being tried summarily. Denham J, as she was then, considered that there was a clear distinction between the procedure and entitlements in a trial on indictment and a summary trial.

She determined that there is no general obligation on the prosecution to serve statements of prosecution witnesses on the defence in either indictable or summary proceedings but that it was a matter for the trial judge to determine in a particular case whether pre-trial disclosure should be ordered so as to ensure a fair trial. The learned judge identified a number of factors that a court should consider in making such a determination: (1) the seriousness of the charge; (2) the importance of the statements or documents; (3) the fact that the accused has already been adequately informed of the nature and substance of the accusation; (4) the likelihood that there is no risk of injustice in failing to furnish the statements or documents in issue to the accused; and (5) the presence or absence of a request for the statements or documents. On the facts of the case the Supreme Court held that there was no requirement for advance disclosure of witness statements or a summary of the evidence for the prosecution.

21. Having reviewed the relevant law on the topic of disclosure in summary proceedings Professor Dermot Walsh in Walsh of Criminal Procedure (Second Edition) states, at page 1025, paragraph 15-172: “Clearly, there are limits to the extent to which the prosecution is under a duty to disclose material to the defence in summary trials, and those limits reflect the fact that summary proceedings are designed to deliver justice in a simple, speedy and economical manner, consistent with the requirements of fairness. It can be expected that the courts will not entertain applications for disclosure in respect of material that goes beyond the substance of the essential evidence grounding the charges against the accused.”

22. The following principles can be distilled from the case law:

a) Discovery has no place in the criminal process.

b) There is a general ongoing duty on the prosecution to disclose all evidence upon which it will rely at trial.

c) There is a general ongoing duty on the prosecution to disclose all relevant evidence that may assist an accused or harm the prosecution.

d) There is no general obligation on the prosecution to serve statements of prosecution witnesses on the defence in either indictable or summary proceedings but that it is a matter for the trial judge to determine in a particular case whether pre-trial disclosure should be ordered so as to ensure a fair trial.

e) There is a clear distinction between the level of disclosure, if any, required in indictable matters versus summary proceedings.

f) There are limits on the extent to which the prosecution is under a duty to disclose material to the defence in summary trials.

g) Fair trial rights will dictate any decision to order pre-trial disclosure and the matters to be considered include those set out in the inexhaustive list contained in the Supreme Court decision in Doyle.

h) Disclosure will generally not be ordered in respect of material that goes beyond the substance of the essential evidence grounding the charges against an accused.

23. It now falls to this court to applying these legal principles to the instant application.

24. Firstly, it is obvious that the letters from the defence solicitor dated 17 February 2021, and more particularly the letter dated 23 March 2021, was authored by a person who is acutely familiar with discovery and inspection in civil cases. The letter contains requests for what in effect amount to interrogatories, particulars, discovery and inspection and refers to the material sought being “necessary and relevant” to properly and fairly dispose of the case. It categorises the items sought and gives reasons for the necessity of each category using the parlance of superior court discovery applications. Of course, the “relevant and necessary” test that applies to the discovery process has no place in the criminal setting, or at least not in the sense in which those concepts are interpreted and applied in civil proceedings. It may well be that there are cases where a letter for disclosure is written in the style of a letter for discovery as a matter of convenience, and if that were the case here then I would make no criticism of it, but the letters in the instant case go much further and seek items that might be relevant to discovery in a land dispute case but not in the context of the level of disclosure that it is appropriate and reasonable to expect in the current summary criminal case.

25. Secondly, it is important not to lose sight of the charge before the court. The Accused is charged with harassing the complainants throughout a period of just over two years.

While potentially the matter might have been tried on indictment, both the Prosecutor and the court determined that the matter was a minor matter that is fit to be tried summarily. This is remarkably similar to what occurred in the Doyle case. This is not a land dispute case being argued before a civil court. It is a summary criminal trial of a matter fit to be tried as such. I have carefully considered all of the “categories” of documents and other items sought. I have also carefully considered the reasons offered as to why those items are sought. While many of the items might be “relevant and necessary” to narrow the issues between the Accused and his neighbours in a civil case regarding the disputed lands they are not relevant, and indeed are wholly collateral, to the issue in the instant summary criminal trial.

26. Thirdly, as a matter of fact, the Accused knows the substance of the charge, and he knows and has been furnished with the essential evidence grounding the charge. As a result of the disclosure made to date he possesses a true copy of the charge sheet, typed copies of all garda statements, handwritten copies of all garda statements, typed copies of all witness statements, handwritten copies of all witness statements, a copy of the custody record pertaining to his arrest and subsequent detention for interview, the memo of interview, all the exhibits put to the Accused during the interview, copies of all pictures introduced by the Accused during his interview, CCTV put to the Accused during the interview, and a voice recording sought by the defence solicitor.

27. I have assessed the oral submissions of the parties in light of the case law, the legal principles that it establishes, and the extent of the material disclosed to the defence solicitor in advance of the summary trial of the Accused. With the preservation and vindication of the fair trial rights of the Accused permeating every aspect of my decisionmaking process in this case, I am satisfied that the prosecution has complied with the general duty to disclose all evidence upon which it will rely at trial, together with all relevant evidence that may assist the Accused or harm the prosecution, within the practical and reasonable limits of that duty in the context of a summary trial.

28. I am therefore satisfied that the Accused will receive a fair trial with the disclosure that has been furnished to him. It is open to him to call witnesses and to present any relevant evidence in his defence. The material sought to be disclosed as the subject matter of this application goes beyond the substance of the essential evidence grounding the charges against the Accused.

29. I am satisfied that it is appropriate and correct to refuse the application for disclosure of the remaining items sought by the Accused.

30. Accordingly, I refuse the application.