Traynor -v- Judge Katherine Delahunt Ors: High CourtJudgment was given on July 31st, 2008 by Mr Justice Bryan McMahon
Judgment
A woman accused of public order offences arising from an incident, which also gave rise to a complaint against An Garda Síochána, is entitled to the relevant file from the Garda Complaints Board to assist her in her defence to the charges.
Background
On March 31st, 2003 a public order incident occurred at Ballyogan Crescent, Dublin, involving a number of people. Gardaí were called to the scene, and one of them, Garda Ian Gillen, was involved in an altercation with the applicant, June Traynor's daughter. When Ms Traynor tried to intervene she alleges she was assaulted by Garda Gillen. Her daughter was arrested.
She made a complaint about the conduct of Garda Gillen to the Garda Complaints Board (GCB). The board investigated the complaint and sent a report to the Director of Public Prosecutions. He decided not to prosecute the garda.
On September 29th, 2003, one day under the six months after the incident occurred, and the last day for issuing a summons relating to it, Garda Gillen issued a summons charging the applicant with assault and violent disorder. The matter was eventually sent forward to the Dublin Circuit Criminal Court.
At the call-over of cases Ms Traynor sought disclosure, both from the DPP and the GCB, of all the documents generated by the board's investigation of her complaint. The DPP said he would not be relying on any of this material in the prosecution.
The Circuit Court judge refused to make any order of disclosure. It is against this decision that the applicant brought judicial review proceedings to the High Court. If this application failed, she argued that the further proceedings against her should be prohibited.
She argued that, unless she had these documents, she ran the real risk of an unfair trial.
Counsel for the DPP argued that the onus lay on her to prove this. It was also argued that she was seeking the discovery of material in the possession of a third party, which is not available in a criminal prosecution. The Garda Complaints Board was not a party to the proceedings.
The board also pleaded that the statements gathered by it during its investigations must remain confidential, and that it had no knowledge of the relevance of this material to the defendants trial.
Decision
Mr Justice McMahon said that the prosecution has an obligation to disclose all material evidence within its possession, power or procurement, even where it does not propose to rely on it at the trial. He referred to DPP -v- Special Criminal Court (Ward) and The People (Director of Public Prosecutions) -v- Kelly .
There can be little doubt in my mind that the evidence before the Garda Complaints Board is captured by both words "relevant" and "material", he said.
Referring to the statement by the DPP that he was not proposing to rely on this material in the prosecution, he said: "Reliance is not the test for excusing disclosure."
Referring to the argument that the material must be kept confidential, he asked: "Why? Why should the Director of Public Prosecutions show greater respect to the confidential nature of the documents generated by the Garda Complaints Board than to the defendant's right to a fair trial?"
He said there were cases where the law protects material from disclosure by the prosecution, such as legal professional privilege, but this did not fall within any such category.
Referring to the DPP's argument that the matter of disclosure is a matter primarily for the trial judge, he said: "I agree to this extent: it is for the trial judge to examine the particular documents and engage in the weighing exercise to ensure that the accused gets a fair trial. The trial judge has not done so in this case, contenting herself with the Director Public Prosecutionss assurance that it does not intend to rely on these documents. For these reasons alone the accused is entitled to an order of this court."
He ordered the documents to be disclosed if the DPP continued with the prosecution.
The full text of this judgment is on www.courts.ie
John Aylmer SC and Micheál O'Connor BL, instructed by Greg O'Neill, for the applicant, Tom O'Malley BL, instructed by the Chief Prosecution Solicitor and David Barniville SC and Imogen McGrath BL, instructed by Gleeson McGrath Baldwin, for the respondents