The following is the text of the statement by Judge Joseph Mathews, the sentencing judge, on his involvement in the Sheedy case, dated April 5th 1999; and the text of a letter from Mr Justice Cyril Kelly, dated 13th April 1999; both documents form part of the annexes to the Chief Justice's report.
Annex 27
Statement of His Honour Judge Joseph Mathews SC prepared at the request of the Honourable Mr Justice Esmonde Smith, President of the Circuit Court, in response to enquiries by the President into the circumstances surrounding the listing of the DPP V Sheedy in the Dublin Circuit Criminal Court on November 12th 1998 before His Honour Judge Cyril Kelly (as he then was).
The following are the circumstances under which I became involved as the sentencing Judge in the case of DPP V Philip Sheedy on October 20th 1997 in the Dublin Circuit Criminal Court (No. 25).
On the morning of October 20th 1997, I was at hearing in a Jury Trial (arson) in Court No. 25. At around midday I received a phone call in my chambers from Judge Cyril Kelly (presiding in Court No. 24) to ask me if I would be free to take a plea of guilty case in the lunch recess. He said counsel on both sides of the case had been in to his chambers on various occasions to discuss various aspects of the case and the issue of quantum of compensation that might be paid to a victim was discussed and that he felt too close to the case and would rather I dealt with it. He said it was a dangerous driving causing death case and, though it was obviously a tragic case, the young accused (whom he described as "a graduate") had a large sum of money as compensation in court.
He told me the accused had no previous convictions and came from a good family. He said he felt it was a suitable case for a suspended sentence. He said he would send the file over. He did.
I read the file. I formed the view that this particular case, on the facts on file at least, could not on any basis be a case for a suspended sentence. I wondered was Judge Cyril Kelly actually familiar with the facts or was he so busy that he might have missed the gravity of the case on the facts as they appeared from The Book of Evidence.
I was concerned that the information given by him on the phone was very sketchy. In my view recklessness of an extraordinary degree was evident from the file. I was puzzled and concerned. I asked my crier to arrange with Judge Kelly's crier for me to meet him (Judge Kelly) personally and immediately in his chambers. I wanted to talk to him personally and not just over the phone. I was told to come over. I walked over with the file to his chambers in Court No. 24. He was writing at his desk. He nodded at me in welcome but did not actually say anything. I just said (standing at his desk with the file in my hands) "Cyril, I've read the file in the case that you asked me to deal with. So there's absolutely no misunderstanding over this I just wanted to say two things -
One: I can't impose a suspended sentence in this case, and,
Two: it's not a case in which, in my view, a suspended sentence could be imposed. Even if I could, this is not a suitable case, in my view, in which to do so."
He didn't speak at all. By gesture he indicated to me with both hands out at arms length and made a face, which I took as a gesture meaning: "if that's what you think then that's what you must do." I felt absolutely happy that he knew I disagreed with his view and I was completely free to do as I felt was appropriate under the law and sentencing policy. I left immediately and returned to my chambers.
I heard the case on the evidence as given in open Court. (Transcript of October 20th 1997 refers.) I imposed four years imprisonment with liberty to apply for a review of sentence after two years. This sentence I felt complied with the principles of sentencing policy set out in the DPP V M (1994 ILRM).
On November 6th, 1997, on notice to the Prosecution, Senior Counsel for the Defence, Sean Moylan SC, applied to me in Court 25 in open Court in ease of his client (who he said was greatly distressed) to vacate the review date I had set. He indicated that this was his clients' wish. Unusual though this appeared to me I did not want to impede Senior Counsel for the Defence in any way in matters which might be in ease of his client in matters of Temporary Release in due course which might not apply if a review date stood. I, therefore, vacated the review date on the application of Senior Counsel for the Defence in further ease of his client.
This ended my involvement in the case.
Joseph Mathews
Date: April 5th 1999.
Annex 28
Mr Justice Liam Hamilton, Chief Justice, Supreme Court, Four Courts, Dublin 7.
13th April 1999.
Re: DPP v Philip Sheedy
Dear Chief Justice,
I refer to our meeting yesterday when you asked for my observations on a statement dated the 5th April 1999 together with an addendum similarly dated signed by Judge Joseph Matthews.
In making these observations I am relying almost exclusively on memory together with such transcripts of court hearings relating to DPP v Sheedy that are available, together with the Affidavits arising from the Judicial Review proceedings and documents as have been furnished to me by you in the course of your inquiry.
Regrettably, I am unable to accept a significant amount of Judge Matthews' statement as it omits an important fact from the events as set out.
I accept that at some stage on the morning of the 20th October 1997 I contacted by phone Judge Matthews in his chambers and invited him to take a guilty plea in a dangerous driving causing death case. I believe that it was earlier than midday but I did not ask him to take the case during the lunch recess. I believe that his court was not available till at or about the lunch recess and that he therefore may have heard it at that time.
Subsequent to the case having been sent to Judge Matthews and before the case was heard by him, I believe that Judge Matthews saw both Senior Counsel for the prosecution and defence and that a discussion concerning matters relating to the possible sentence between them took place.
I am satisfied that I did not have the conversation with Judge Matthews as recounted by him in his statement of the 5th April. In particular, I did not say to Judge Matthews that I had seen Counsel on both sides of the case in my Chambers on various occasions to discuss various aspects of the case or that the issue of quantum of compensation that might be paid to the victim was discussed. Furthermore, I did not say that I was too close to the case and would rather he dealt with it.
At no time do I recollect meeting with both Counsel and having a discussion concerning the case. In particular, I am clear that I never saw counsel for the prosecution in this case. I do not believe that I would have seen counsel for the defence on his own and discussed the case.
There was no reason for me to say that I was too close to the case as I did not know the defendant, nor was I aware of my knowing anyone connected with him. It was not unusual to see Counsel in a case to ascertain the real issues in the case with a view to expediting the Court lists.
When asking Judge Matthews to take the case I have no doubt that I would have told him roughly what the case was about as I would have read the file and been aware of all matters contained therein. However I do not believe that I told Judge Matthews that it was a suitable case for a suspended sentence as would have been a matter for him to decide having read the file, spoken to Counsel and heard the case, but may have referred to the Probation and Welfare report on the file which made a recommendation to that effect.
I specifically wish to make it clear that I do not accept that Judge Matthews came to see me in my chambers after he had read the file.
I say this because:
1. The only time that I would have been in my chambers for any length of time would have been during the lunch recess. As appears from the transcript of the 20th October this appears to have been when the case was heard by Judge Matthews.
2. I have no recollection of having to specifically rise from the work that I was doing to see Judge Matthews concerning this case.
3. Because of the fact that Judge Matthews himself saw Counsel involved on both sides of the case concerning sentence after it had been assigned to him and before hearing, it would confirm for me that there would have been no reason to see me or to have the conversation that he details in italics in his statement of the 5th April.
4. I have seen Judge Matthews in connection with cases which were before him and about which he had concerns but I am satisfied that the meeting as recounted by him did not take place.
Yours sincerely,
Cyril C.Kelly