Discovery refused in criminal appeal where prosecution relies on special protection for non-prosecution decisions.

[2005] IESC 75

THE SUPREME COURT

JUDICIAL REVIEW

290/04

Hardiman J.

McCracken J.

Macken J.

Between:

SABRINA DUNPHY (A MINOR) SUING BY HER GUARDIAN AD LITEM, SARAH MOLLOY,

Applicant/Appellant

and

THE DIRECTOR OF PUBLIC PROSECUITONS

Respondent

JUDGMENT of Mr. Justice Hardiman delivered on the 2nd day of November, 2005.

1. This is an appeal from the judgment and order of the High Court (Kearns J.) of the 22nd March, 2004, whereby the applicant’s

motion for discovery in these proceedings was refused.

2. The applicant is presently the defendant in criminal proceedings. She is alleged to have been in unlawful possession of a controlled

drug on the 22nd October, 2001, and to have been in possession of the same drug for the purpose of unlawfully supplying it to

another. She was arrested, together with another girl called Emma Kavanagh, in Portmarnock and was found to be carrying a bag

which contained the drug in tablet form. She was interviewed by the Gardaí and said the drugs were the property of a friend of hers,

Gareth Hickey. He had given the drugs to the other girl, Ms. Kavanagh, on the previous day. She had kept them overnight, and told

Ms. Dunphy about them. Ms. Kavanagh however could not keep the drugs on the next night as she was not going to be at home. On

that night, the owner of the drugs, Gareth Hickey had “business” in Portmarnock with the drugs and prevailed upon the applicant to

carry the drugs for him as she was less likely to excite suspicion. She had them partially concealed by a jacket which Ms. Kavanagh

had given to her for that purpose.

3. Ms. Kavanagh admitted that she had accompanied Hickey to an address in Killester when he collected the drugs which according to

him consisted of “1,000 Es”. She had carried the drugs for him on that night and subsequently kept them at home and brought them

to school the next day.

4. Mr. Hickey accepted responsibility for the drugs. He said that he had paid Ms. Kavanagh £30.00 to mind the drugs.

5. At the time of these events the applicant and Ms. Kavanagh were fifteen years of age and Mr. Hickey was nineteen. The

applicant’s background is an unfortunate one and she had lived in care, in a hostel, for some time. On the hearing of this appeal it

was strongly submitted that the applicant’s involvement in the matter described above was the least of the three. The reality appears

to have been that both girls were heavily under the influence of Gareth Hickey and were prepared to oblige him in any way he wished.

The complaint.

6. The applicant is aggrieved at the fact that while she is being prosecuted in respect of her dealings with Gareth Hickey’s drugs, Ms.

Kavanagh is not. Instead, she was diverted from the criminal process under the Juvenile Diversion Programme, in accordance with an

appendix to the Director of Public Prosecutions “general guidelines”, published October, 2001.

7. By letter of the 13th November, 2002, the applicant’s solicitors wrote to the Director setting out their view of the case. Specifically

they contended that the applicant was a vulnerable person and that her involvement was much less than that of the other girl who

had “collected the tablets, received a remuneration, and held the tablets in her possession (in her house and in her school bag) for

nearly two days”. The solicitor’s letter concluded:

“We understand why the Director on the facts of the case might consider dealing with persons under the Scheme.

Dunphy in particular was somebody whom we would have thought would be appropriate to be so dealt with. In any

event the Director has dealt with Ms. Kavanagh under the Scheme.

Given their respective levels of involvement we would respectfully submit that the decision by the Director to permit

resolution under the Scheme binds him in how he must deal with our client. To deal with the matter otherwise we

submit would be unfair”.

8. The solicitors asked either that the applicant be dealt with under the Juvenile Diversion Programme or, in the alternative, that the

Director disclose “the precise basis and documentation in existence touching upon same (including internal memoranda) on which the

decision was reached to prosecute our client and to deal otherwise with a person who was much more culpable than our client”.

9. The Director replied tersely that “… The decision to prosecute Sabrina Dunphy was made in line with the general guidelines as

published by the D.P.P’s office in October, 2001. It is not proposed to reverse the decision such that your client be dealt with under

the Juvenile Diversion Programme”.

The proceedings.

10. By order of the 27th January, 2003, the High Court (Miss Justice Carroll) granted the applicant leave to seek reliefs by way of

judicial review including:

(1) An order prohibiting the respondent his servants or agents from taking any further step in the criminal

prosecution,

(2) An order in the nature of an injunction… restraining the respondent his servants or agents from taking any

further step in the prosecution,

(3) A declaration that the respondent has acted otherwise and in accordance with law in initiating the said

prosecution,

(4) A declaration that the respondent has acted other than in accordance with law in maintaining the same

prosecution,

(5) A declaration that the respondent has acted in breach of the constitutional rights of the applicant and in

particular her constitutional right to be held equal before the law,

(6) A declaration that the respondent has acted otherwise in accordance with law and/or in breach of the

constitutional rights of the applicant in failing to give reasons for initiating the prosecution… while applying the

Juvenile Liaison/Diversion Scheme to a confederate,

(7) An order of mandamus requiring the respondent to give reasons for the decision not to apply the provisions of

the Juvenile Liaison/Diversion Scheme in the case of the applicant.

Discovery.

11. In July 2003 the respondent filed a notice of opposition stating that there was no reason to believe that his decision to prosecute

the applicant was mala fide, perverse, inspired by improper motives or policy, or was the result of an abdication of his functions. He

also pleaded that in the absence of evidence from which it could reasonably be inferred that the decision to prosecute her was of

that nature, her complaints were not cognisable by any court and could not give rise to any relief. He also pleaded that in the

absence of such evidence the applicant was not entitled to require reasons to be given as to why he did in fact initiate the

prosecution. He further pleaded that no right of the applicant had been violated.

12. In November, 2003, the applicant sought voluntary discovery substantially in the form set out above. She said that she had been

discriminated against unfairly by comparison with the treatment accorded to Ms. Kavanagh who was factually more culpable. She

further said that the respondent had discriminated between the two girls in a manner which was unconstitutional, unfair and arbitrary.

She further said that, in the absence of discovery, she would have great difficulty in dealing with the respondent’s statement of

opposition.

13. On the 22nd April, 2004, the applicant issued her notice of motion for discovery which was refused on the date mentioned above.

The High Court Judgment.

14. The High Court judgment, which was given ex tempore, is short enough to be set out in full:

“I have some sympathy for the case advanced by the applicant. I think that the shell into which the Director of

Public Prosecutions has retreated by way of decisions of the Supreme Court is a shell which the High Court cannot

penetrate. If the applicant feels strongly enough then this case can be appealed and argued before the Supreme

Court. I consider that there are significant public policy considerations and that a very high threshold is required in

relation to a decision of the Director of Public Prosecutions to prosecute – a high threshold has been set because as

Mr. McDonagh said, every criminal case could be affected by discovery applications of this sort. If the only

inference to be drawn was that the Director was, in making his decision, acting mala fide or on the basis of

improper motives then the high threshold would have been reached. A number of considerations could be said to be

at play here – an ostensible decision to treat one person differently, however, doesn’t warrant the description that

he acted mala fide or on the basis of an improper motive. The line of jurisprudence is clear here – the case of

Eviston was distinguished by peculiar facts and its narrow grounds and the considerations that arose in Eviston are

not at play here. The reality here is an attempt to overcome the protection that the Director of Public Prosecutions

enjoys.”

Position of the D.P.P.

15. It is appropriate to analyse the position of the Director of Public Prosecutions as a starting point for the resolution of the issues in

this case.

16. In State (McCormack) v. Curran [1987] ILRM 225, the Director advanced the very far reaching proposition that his decisions to

prosecute or not to prosecute were “Not as a matter of public policy ever reviewable by a court.” This position was rejected but a

degree of privilege arguably only slightly less thorough going was envisaged in the judgments. In the High Court, Barr J. held that:

“In every case therefore the D.P.P. is obliged to make an independent assessment as to whether a particular person

should be prosecuted or not. He has no obligation to state his reasons for any such decision and, indeed, it would

appear to be contrary to public policy that he should be compelled to do so.”

17. On appeal, Finlay C.J. said:

“In regard to the D.P.P. I reject also the submission that he has only got a discretion as to whether to prosecute or

not to prosecute in any particular case related exclusively to the probative value of the evidence laid before him.

Again, I am satisfied that there are many other factors which may be appropriate and proper for him to take into

consideration. I do not consider that it would be wise or helpful to list them in any exclusive way. If, of course, it

can be demonstrated that he reaches a decision mala fide or influence by an improper motive or policy then his

decision would be reviewable by a court. To that extent I reject the contention made on behalf of the respondent

that his decisions were not as a matter of public policy ever reviewable by a court.

In the instant case, however, I am satisfied that no prima facie case of mala fides has been made out against

either of the respondents with regard to this matter. Secondly, I am satisfied that the facts appearing from the

affidavit and documents do not exclude the reasonable possibility of a proper and valid decision by the D.P.P. not to

prosecute the appellant within this jurisdiction and that being so we cannot be called upon to explain his decision or

give the reasons for it nor the sources of information upon which it was based.”

18. McCormack was an unusual case where the applicant was attempting to force the Director of Public Prosecutions to prosecute

him on particular charges so that he could be tried in the Republic rather than in Northern Ireland, pursuant to the Criminal Law

Jurisdiction Act, 1976.

19. In H v. D.P.P. [1994] 2 ILRM 285, there was also an attempt to compel the Director to institute a prosecution (against the

applicant’s husband and another person) or give reasons, and supply documents, relating to the decision not to do so. This attempt

was unsuccessful. The policy reason which may, in part, underlie the special position of the Director was mentioned in the judgment

of O’Flaherty J. as follows:

“If the Director were to be subjected to frequent applications for mandamus compelling him to bring prosecutions by

discomforted persons, I apprehend that his office would be stretched beyond endurance in seeking to justify that

which should not require to be justified.”

20. The test indicated in the extracts, given above, from the decisions in McCormack, were adopted in H. and relief was refused

because, in the words of Denham J.:

“The facts of this case do not exclude the reasonable possibility of a valid decision by the Director not to prosecute

the persons named consequently the Director cannot be called upon to explain his decision or to give the reasons

for it nor the sources of information upon which it is based.”

21. The two last mentioned cases were cited with approval in Eviston v. Director of Public Prosecutions [2002] 3 IR 260. This was a

case in which the applicant, Ms. Linda Eviston, was involved in a road traffic accident in which another driver was killed on the 28th

June, 1998. The applicant made a full statement to the Gardaí and gave them copies of her consultant engineer’s report suggesting

that the accident was due to factors outside her control. The matter was considered in the Office of the Director and a decision

made that no prosecution should be instituted. The applicant was made aware of this in early December. On the 23rd December,

however, the Gardaí made an application for a summons alleging the indictable offence of dangerous driving causing death against the

applicant. It transpired that the Director had changed his mind. A letter had been received from a relative of the deceased asking the

Director to prefer “charges of some description” against the applicant. The summons was applied for within four working days of

receipt of the letter. The applicant instituted judicial review proceedings to restrain the prosecution and was successful in this. A

deponent on behalf of the Director said that the Office of the Director of Public Prosecutions operated a system of internal appeal or

review and that this was triggered by the relative’s letter. But the applicant was, of course, wholly unaware of this system and had

been given no reason to believe that the decision not to prosecute her might be reviewed and a contrary decision taken.

22. Keane C.J. in his judgment referred to the two cases cited above and said that:

“In each case the Court was concerned with (a) a decision not to prosecute in a particular case and (b) a

challenge to the merits of that decision. The decisions accordingly go no further than saying that the Court will not

interfere with the decision of the respondent not to prosecute where:

(a) No prima facie case of mala fides has been made out against the respondent;

(b) There is no evidence from which it could be inferred that he has abdicate 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.

They also make it clear that, in such circumstances, the respondent cannot be called upon to explain his decision or

give the reasons for it or the sources of information on which it is based.”

23. The learned Chief Justice then referred to The State (O’Callaghan) v. Ó hUadaigh [1977] IR 42 and continued:

“I am satisfied that the decision of Finlay P. in that case – that the respondent is not exempt in the performance of

his statutory functions from the general constitutional requirements of fairness and fair procedures – was correct in

point of law. It also seems to me to follow inexorably from that proposition that where, as here, the respondent

avails of his undoubted right not to give any reasons for a decision by him to reverse a previous decision not to

prosecute, but concedes that there has been no change of circumstances, his decision is as a matter of law prima

facie reviewable on the ground that there has been a breach of fair procedures.”

24. It thus appears that the right of the respondent to give no reasons for a decision to prosecute or not to prosecute, except in the

very limited circumstances set out in the first extract above from Eviston, is very firmly established. But Ms. Eviston was granted

relief because:

“The distinguishing feature of this case is the communication by the respondent of a decision not to prosecute to

the person concerned, followed by a reversal of that decision without any change of circumstance or any new

evidence having come to light. In the light of the legal principles which I have earlier outlined, I am satisfied that

the decision of the respondent was prima facie reviewable by the High Court on the grounds that fair procedures

had not been observed viewing the matter objectively I am forced to the conclusion that in circumstances where

the respondent candidly acknowledges that there was no new evidence before him when the decision was

reviewed, the applicant was not afforded the fair procedures to which in all the circumstances she was entitled. It

follows that the requirements of the Constitution and the law will not be upheld if the appeal of the respondent in

the present case were to succeed”.

25. On this appeal, Mr. Michael O’Higgins S.C. for the applicant/appellant relied heavily on Eviston and pointed out that, in that case,

the Director had in fact disclosed the letter he had received and the fact that he had reviewed the previous decision on foot of it.

That much is undeniable, though it appears that the applicant was aware before that disclosure was made that there had been an

approach from the deceased’s family though not of course of its contents. But even allowing that these matters were voluntarily

disclosed by the Director, that does not appear to me to help the applicant in this case. The disclosure in Eviston extended to the

text of the letter received by the Director and the existence of a system of appeal or review. It did not extend to the reasons for

either the first decision not to prosecute or the second decision to the contrary effect except insofar as these can be inferred from

the admission that there was no new evidence available when the second decision was taken. But that only leads to the conclusion

that the second, reviewing, official, (said to have been “at the highest level”) took a different view of the case than the original

official had. The reasons or impression which actuated either decision maker were not revealed. Moreover, the case trenchantly

reasserts the right of the Director not to give reasons for his decisions to prosecute or not to prosecute.

The submissions.

26. Mr. Michael O’Higgins S.C. acknowledged that the Director’s decision was not reviewable except in the very limited circumstances

which are pithily expressed in the first exert given above from the judgment of Chief Justice Keane in Eviston. But he emphasised that

the Court was not now addressing the question of whether that hurdle had been overcome: it was dealing solely with an application

for discovery. He was entitled to this, he said, on the basis that the order would only require the Director to list the documents he

had: if he claimed privilege over them that matter would have to be subsequently addressed, presumably on a motion for Inspection.

He said that the cases established that the decision of the Director was, albeit in limited circumstances, capable of being reviewed

and that fact, he said in itself grounded the entitlement to discovery. He said that the Director was not entitled to maintain a studied

silence and rely exclusively on the onus of proof being on the applicant. In that connection he relied strongly on the case of Brennan

v. Windle [2003] 3 IR 494. He also referred, pre-emptively, to the case of K.A. v. Minister for Justice [2003] 2 IR 93.

27. That case featured discovery which was sought in aid of an attempt to quash the respondent’s refusal to grant the applicant

refugee status. He sought particulars of the total number of decisions reached by each member of the Refugee Appeals Tribunal which

were not affirmed or accepted by the Minister and, secondly, the total number of decisions recommending grant and refusal

respectively of refugee status by each member of the Tribunal and the Appeal Authority. Dealing with the question of discovery in

judicial review, Finlay Geoghegan J. first set out the ordinary principles on which discovery is ordered and continued:

“It is however inherent in the nature of judicial review that the necessity for discovery will be more difficult to

establish than in plenary proceedings. This follows the fact that in judicial review what is at issue is the legality of

the decision challenged. In many instances the facts are not in dispute. Discovery will normally, but not exclusively,

be confined to factual issues in dispute. It can be envisaged that an applicant for judicial review may raise a factual

issue and, whilst not disputed, consider that there are documents in the possession of the respondent which would

assist in the proof of the relevant related fact at the hearing, and that a court would take the view that discovery

of such documents is necessary for disposing fairly of the application for judicial review. The limitation of discovery

in such circumstances is that it must not be considered to be a fishing exercise. It is difficult to state in a general

way the precise dividing line but it is clear that it is not sufficient for the applicant simply to make an assertion not

based in any substantiate act and then seek discovery in the hope that they will exit documents which support the

assertion.”

28. The learned judge went to refer with approval to the decision of Bingham M.R. in R. v. Secretary of State for Health, ex parte

Hackney London Borough (unreported, Court of Appeal, 24th July, 1994). There, the Master of the Rolls expressed the test be met by

an applicant for discovery in judicial review proceedings as follows:

“Have they raised a factual issue of sufficient substance, or adduced evidence which grounds a reasonable

suspicion of unlawfulness, such that the application cannot fairly be resolved without discovery.”

29. In K.A., the form of illegality alleged was that the Minister in making his decision to deport failed to exercise his discretion and/or

adhered to an inflexible policy rule. But there was no evidence of this: the applicant sought discovery in the hope of finding some,

which is the activity usually described as “fishing”.

30. In the present case Mr. O’Higgins relied on what he called the disparity in the treatment of the applicant and of Ms. Kavanagh

respectively, as giving the substance to the allegation of illegality in the present case, and as distinguishing it from K.A. He says that

this disparity indicates, prima facie, irrationality or perversity in the decision he challenges, and that that is enough to entitle him to

discovery on the established principles.

The Disparity.

31. In my view the distinction or, as Mr. O’Higgins called it the disparity identified in this case in the treatment of the two girls is not

such as gives rise to any prima facie apprehension of impropriety. Not only does it not amount to a prima facie case, it does not

even suggest impropriety. The reason why the applicant prefers the term “disparity” to “distinction” is that the former word is

suggestive of inequality, both in its Latin derivation and in its contemporary usage.

Equality before the Law.

32. Equality before the law is, of course, required by Article 40.1 of the Constitution which provides:

“All citizens shall, as human persons, be held equal before the law.

This shall not be held to mean that the State shall not in its enactments have due regard to differences of

capacity, physical and moral, and of social function.”

33. The Irish version of the first sentence of this Article “Áirítear gurb ionann ina bpearsain daonna na saoránaigh uile i láthair an dlí”.

This may be regarded as acknowledging the equality of all citizens, in their human personality, before the law.

34. But these words do not require a rigid or mathematical equality of treatment in all circumstances. In the words of Henchy J. in

The State (Keegan) v. Stardust Victims Compensation Tribunal [1986] IR 642 at 658:

“I would accept that Article 40.1 of the Constitution requires that people who appear before the Courts in

essentially the same circumstances should be dealt with in essentially the same manner.”

35. There are numerous examples of legitimate distinctions, or disparities, throughout our law, based on differences of individual

functions or circumstances. Thus, for example, in Dillane v. Ireland [1980] ILRM 167, the Supreme Court upheld a provision of the

District Court Rules whereby costs could not be awarded against a member of the Garda Síochána who acted as prosecutor, though

they could be awarded against an ordinary citizen acting as a common informer. In Quinns Supermarket v. Attorney General [1972] IR

1 Walsh J. said, at pages 13 and 14 that the constitutional provision:

“is not a guarantee of absolute equality for all citizens in all circumstances but is a guarantee of equality as human

persons and a guarantee against any inequalities grounded upon an assumption or indeed a belief that some

individual or individuals or classes of individuals by reason of their human attributes or their ethnic or racial social or

religious backgrounds are to be treated as the inferior or superior of some other individuals in the community.”

36. For the purpose of this case it is sufficient to note the well established scope for distinguishing between individuals. There is no

need to go into the question of whether the guarantee of equal treatment applies only to matters touching the human personality as

such, and not to matters such as commercial, trading, or educational activity. These issues simply do not arise here.

The Juvenile Diversion Scheme.

37. The complaint of inequality in this case arises in the context of the Juvenile Diversion Scheme which was applied to the other girl

involved so that she never came before a court at all. The information before the Court about this scheme is set out as appendix I to

a document published by the Office of the Director of Public Prosecutions, “Statement of general guidelines for prosecutions”. The

relevant guidelines set out some indisputable matter in relation to juvenile offenders such as:

“Prosecution of a juvenile is not a step to be taken without full consideration. The public interest and the interest of

the juvenile concerned may be better served by having the matter dealt with under the provisions of the Garda

Juvenile Liaison Officer Scheme.”

38. The precise nature of this scheme is stated later in the appendix as follows:

“The diversion programme available involves the inclusion of the juvenile offender in the Garda Síochána Juvenile

Liaison Officer Scheme. This allows for the juvenile offender to be diverted from the formal criminal justice system

by way of an official caution and the placing of the juvenile under the supervision of a garda juvenile liaison officer.”

39. The conditions for entering into the scheme are then set out and it appears to be indisputable but that the other girl met them

insofar as her circumstances are before the Court.

40. One of these is that the juvenile “has not been cautioned previously or, having been cautioned the circumstances are such that it

would be deemed appropriate to administer a further caution”.

41. It also appears from the context of the appendix that, save in the case of specific offences, a person may be diverted from the

“formal criminal justice system” by the Gardaí involved, including a District Officer, without the matter going to the Director of Public

Prosecutions at all. It was not contended that the offences involved here were such that required a proposal to deal with the matter

by caution to involve the Director. In answer to this difficulty, Mr. O’Higgins said that if necessary he would argue that the Director,

being aware that the other girl was dealt with under the Diversion Programme, should not have proceeded to charge the applicant.

Having regard to the view I take of the broader issues in the case it is unnecessary to consider whether relief might be granted

against the Director, or whether some other party would require to be impleaded.

Salient facts.

42. Two factual matters appear to me to be of some importance in addressing the issues in this case. The first is that it is by no

means obvious to me that, as the applicant contended, her degree of complicity in the crimes in question was less than that of the

other girl. It is true that the other girl held the drugs for longer but that does not seem to me to affect the degree of moral complicity

involved. In the case of each of the girls, the salient feature is that she held the drugs at the request of the nineteen year old and it

appears that each of them was very heavily under the influence of this young man. That is how they came to be involved in these

offences and it would, I suppose, constitute the principal mitigation. Secondly, it appears from the affidavit of the applicant’s solicitor

that she had already had the benefit of a caution, rather than a prosecution, under the Diversion Scheme. On this topic, the solicitor

says that he believes and is advised “That having the benefit of the Scheme once does not act as a bar to its application on

subsequent occasions.”

43. That is undoubtedly true. It is equally true that the fact that a juvenile has had the benefit of the Scheme on one occasion is a

proper matter to be taken into account when considering whether she should have the benefit of the Scheme again. There is no

suggestion that the other girl had any previous involvement in the Scheme, or any previous convictions. There is clearly scope for the

view that the applicant should not again be given the benefit of the Diversion Scheme, either on the basis that she had not profited

from her previous experience of the Scheme, or on the basis that the vindication of the law in the fraught matter of unlawful drugs

required that a person who had not taken a previous opportunity offered by the Diversion Scheme should not be given the benefit of

it on another occasion, or indeed for a combination of these views. Having regard to the fact that it is for the applicant to

demonstrate that the facts “ exclude the reasonable possibility of a proper and valid decision by the D.P.P” it is unnecessary to make

further findings. There is clearly scope for the view that the decision to divert the other girl involved into the Juvenile Liaison Scheme,

and the Director’s decision to prosecute the applicant, are each quite consistent with total propriety in the respective decision making

processes.

44. This being so, I believe that the applicant has made no showing at all towards discharging the burden that indisputably lies on

her, even in a suggestive or prima facie fashion.

Has the onus of proof shifted?

45. Mr. O’Higgins relied on the case of Brennan v. Windle [2003] 3 IR 494 in order to support the proposition that, in the

circumstances of this case, he had adduced sufficient evidence to shift the onus of proof to the respondent.

46. In Brennan the applicant received a prison sentence at a District Court hearing at which he was not present. He came before the

High Court after he had already served some three weeks in prison. He said that he had not been personally served with the summons

issued against him, and that he had not heard from any other person about the service of the summons at an address he once had. It

is central to an understanding of the case to note that it was not disputed that the applicant in that case had no notice of the

hearing. But the Director claimed that there was an onus on the applicant affirmatively to prove that there had not been adequate

proof of service before the District Judge.

47. In those circumstances, I noted in my judgment:

“The Garda who swore the principal affidavit supporting the notice of opposition was present in court throughout

the proceedings which led to the applicant being sentenced. Notwithstanding this, the respondents have elected to

say nothing whatever about the question of proof of service, even though they do not deny the applicant’s

averments that he was unaware of the hearing at which he was sentenced. They rely on a submission as to the

onus of proof. They say the applicant has not gone far enough and that he was required to prove positively that

there was no proper evidence of service before the District Judge.

I must say that I regard this submission with distaste. The applicant has already spent three weeks in custody on

foot of a sentence imposed after a hearing of which, it is not disputed, he had no actual notice. That fact in my

view establishes a prima facie case that that hearing before the District Judge was fatally flawed by reason of a

failure to observe one of the two basic rules of natural justice, audi alteram partem. In answer to this the

respondents, whose representative must know precisely what occurred at the District Court hearing, elect to

maintain a studied silence and say that it is for the applicant, who does not know what happened because he not

present, to prove that there was not sufficient evidence of service before the District Judge.”

48. I went on to hold that he applicant here had established a prima facie case that his detention was unlawful and had “done quite

enough” to shift the onus of proof on the question of service.

49. I am quite happy to reiterate all that was said in Brennan, but I do not think it assists the applicant here. This is for two reasons.

Mr. Brennan was able to show what was on the face of it a grave injustice: he lost his liberty after a hearing of which he was

unaware. Moreover, this was undenied, so that it was beyond dispute that he had been denied one of the two basic components of

natural justice, the right to be heard. That situation is to be sharply distinguished from what happened here where, as I have already

held, nothing has been proved even to suggest an impropriety. Secondly, both Brennan and a case cited in my judgment there on the

question of the shifting onus of proof, Hanrahan v. Merck, Sharp and Dolme [1988] ILRM 629, were concerned with information which

did not attract the special protection available to the Director of Public Prosecution’s reasons for a decision to prosecute or not to

prosecute. In a case where this special protection is relied upon there is a special evidential standard for the applicant as described in

the cases cited above. This onus must be discharged by any person seeking relief of the sort the applicant seeks here. It is of course

true that she does not have to discharge that onus at this stage of the litigation but the existence of this unusual onus is important

to the resolution of the present issue. The granting of discovery, even if the applicant failed to get inspection, would or might

undermine the special protection available to the Director. His entitlement to that protection is beyond argument, certainly in the

Court as at present constituted. In order to validate it, the applicant must show at least suggestive evidence of an impropriety. This

has not occurred.

Conclusion.

50. I would accordingly dismiss the appeal and affirm the order of the learned High Court Judge.