A man has asked the High Court to direct gardai to provide him with mobile phone recordings secretly made by his wife of him in their home and currently held by gardaí.
He wants to examine the material in anticipation his wife will seek to use it in family law proceedings with potential to impact on his custody and access of their children.
Gardaí opposed giving him the recordings at this stage, arguing that might impede their ongoing criminal investigation in respect of his alleged assault of the couple’s children and coercive control of the woman.
Gardaí also argued, because a decision has yet to be made whether or not to prosecute the man, discovery of the material is not in the public interest.
The woman went to a Garda station in December 2020 where she alleged the man was physically and emotionally abusive of her and the children. She made a statement and provided a USB device on which recordings had been downloaded but asked to hold onto her phone for work reasons.
On January 23rd last, gardaí seized, under section 7 of the Criminal Justice Act, two mobile phones from the woman for forensic examination.
Prior to that, in November 2019, an audio recording of the man was played to the District Court, initially during an ex-parte (one side only represented) application by the woman for an interim barring order and again a week later during a contested hearing for a barring order.
The woman claimed the recording corroborated her experience of the man as being threatening to her and their children.
The man, who alleges the woman has contrived a version of events which is untrue and/or inaccurate and the recording breaches his rights, including to privacy, has appealed to the Circuit Family Court against the barring order. He believes the woman will seek to rely the barring order and the recording, or recordings, in opposing him having unsupervised access to the children.
After Mr Justice Barrett directed the woman on January 17th to provide the recordings to the man by January 22nd , she contacted gardaí saying the man had “requested” a copy of the recordings.
After gardaí, who said they were unaware of the court order of January 17th, indicated they wished to assert investigative privilege over the recordings, the judge directed an application for non-party discovery of the recordings be brought.
The man sought orders directing the gardaí to discover all documents relating to, or evidencing any audio or visual recording(s) in their possession, including the recording(s) themselves, relating to the investigation.
The woman sought an order that recordings of interactions between the man and the children be provided to a named person to facilitate an assessment of those for the civil proceedings.
In his judgment this week, Mr Justice Barrett examined the law concerning Garda claims of investigatory privilege made in the context of civil proceedings,
Arising from two “not readily reconcilable” lines of Supreme Court authority in that court’s judgments in the McLaughlin and Dillon cases, he considered a “respectful question” arises whether the law concerning such claims is “well settled”.
Because the parties agreed the law as stated by the majority Supreme Court in the McLaughlin case should be applied, he did not have to address that matter, he said.
He directed gardai to provide a copy of the recordings to the court within five days for him to privately undertake a weighing exercise.
That involves listening to/viewing the material to assess whether it is so crucial or relevant to the man’s case, and to the interests of the woman and children, that its disclosure to the parties for the civil proceedings outweighs the public interest and investigatory privilege concerns.
Following that exercise, the judge will decide whether or not to order gardai to release the recordings for the civil proceedings.
