H. (D.) v. Groarke [2002] IESC 44 (31st  July, 2002)

THE SUPREME COURT

Keane C.J.
Murphy J.
Murray J.
Geoghegan J.
Fennelly J.
153/01

BETWEEN:

D.H.
								APPLICANT
AND

HIS HONOUR JUDGE RAYMOND GROARKE AND THE DIRECTOR 

OF PUBLIC PROSECUTIONS
											RESPONDENTS
 AND 

THE NORTH EASTERN HEALTH BOARD AND S.H.
													NOTICE PARTIES

JUDGMENT delivered the  31st  day of July, 2002, by Keane C.J. [Nem Diss.]

	The applicant has been returned for trial in the Circuit Court on charges that on various dates between June 1983 and June 1989 he committed offences of indecent or sexual assault on the second named notice party, S.H., (hereafter, “the complainant”) at various locations.  The complainant was aged between six and twelve years at the time of the alleged offences.  In a statement by her contained in the book of documents, she gives details of a number of acts of a sexual nature which she says were committed upon her by the applicant at a time when he had a relationship with her (the complainant’s) mother.  In her statement, the applicant says that she became pregnant at the age of 16, but that the applicant was not the father.  She said that, at the time she became pregnant, she had dealings with a social worker, Marian Durand, in the employment of the first named notice party, (hereafter “the health board”).  She made a complaint to the gardaí as to the alleged offences on the 5th September 1997.  

	There were also statements by the social worker, Marian Durand, and another social worker who also dealt with the complainant, Monica Faulkner.  The solicitor for the applicant required the presence of both the social workers at the preliminary examination in the District Court on the 12th May 1999 and examined them on oath.  In their depositions they refer to notes which they made of their conversations with the complainant.

	On the 20th July 1999, a notice of motion was served on behalf of the applicant in which the Director of Public Prosecutions was named as the respondent and the Health Board as the notice party.  The notice of motion sought an order
		“requiring the respondent and the notice party to make discovery of and furnish to the solicitor for the applicant all reports, notes and records in respect of any and all allegations of sexual/indecent assault of [the complainant] which are or were in the possession or power of the [health board], its servants or agents”.

	It was grounded on an affidavit by the solicitor for the applicant in which he exhibited a letter to the health board seeking copies of the documents referred to in the notice of motion and said that he was advised by counsel that they were necessary “for the proper determination of the matters in issue as between the applicant and the DPP.”

	The application was heard by the first named respondent (hereafter “the Circuit Judge”), the granting of the order sought being opposed by the Director of Public Prosecutions and the Health Board.  The Circuit Court judge refused the application.  First, he said that it had not been suggested that there was any reason to believe that the documents in question disclosed the existence of allegations by the complainant of sexual assaults upon her by persons other than the applicant, which might, if they existed, be used for the purpose of advancing a defence that the complaints were fabricated.  Secondly, he considered that he was bound to have regard to the public interest in ensuring that confidential communications in cases of this nature to a health board remained confidential, unless their disclosure was required by the public interest in the administration of justice.  Since the applicant had not satisfied him that there was any ground for supposing that the notes or memoranda made by the two named social workers or other employees of the health board who had dealings with the complainant contained any material which would be of any assistance to the applicant in the conduct of his defence, it followed that the public interest in ensuring that a health board treated as confidential sensitive material of this nature had to be upheld.

	The Circuit Court judge also commented that in any event all documentation of the nature sought as was available had already been produced under oath in the course of the taking of depositions.  It was urged in this court that he was not correct in so holding and, while the relevant documentation in the books of appeal is confusing and, to some extent, indecipherable, it would appear that the two social workers referred to notes or diary entries relevant to the complainant which they did not have with them when making their depositions.  However, the essential reason for the decision of the Circuit Court, as recorded in the transcript of the hearing which was available to us, was that the applicant was not entitled in advance of the trial to obtain the material sought from the health board.

	The applicant then applied to the High Court for leave to apply by way by way of an application for judicial review for a number of reliefs including
		(1)	an order prohibiting the Director of Public Prosecutions from proceeding with the prosecution;
		(2)	an order of certiorari quashing the order of the Circuit Court judge refusing  the application for discovery;
		(3)	a declaration that the applicant was entitled to be furnished with all documents in respect of the allegations the subject matter of the prosecution which were in the possession or power of the health board.

	A statement of opposition having been filed on behalf of the DPP and the health board, the judicial review proceedings came on for hearing before O’Neill J.

	In the interval there had been two relevant developments.  First, the complainant gave her consent to the furnishing of the relevant documents by the health board to the applicant’s solicitors.  Secondly, an affidavit was filed on behalf of the health board by Denis Cahalane, an employee of that body which set out nine documents which he described as documents that could be the subject of discovery in the proceedings.  In addition to notes, reports etc., by the two social workers already mentioned, they consisted of a record of a visit to the home of the complainant and a telephone call from a juvenile liaison officer.

	In an extempore judgment, the learned High Court judge dismissed the applicant’s claim.  At the outset, he said that counsel for the applicant had indicated that the applicant was seeking declaratory relief rather than certiorari.  The trial judge was of the view that granting the declaratory relief would amount to a collateral attack on the order of the Circuit Court judge, which would not be appropriate: his order could be set aside only by way of appeal or in judicial review proceedings.  He was also of the view that there was no ground for setting aside the order of the Circuit Court judge in judicial review proceedings, since he had arrived at a considered decision on a matter within his jurisdiction and without any breach of fair procedures.  He also commented that, since the complainant had now indicated her assent to the documents being furnished and the Health Board had disclosed what documents were in their possession, the appropriate procedure was for the applicant to make an application for further and better discovery in the Circuit Court.  

	From that judgment and order, the applicant now appeals to this court.  In the meantime, however, there has been another important development.  On the 9th October 2001, in Derek Sweeney -v- The Rape Crisis Centre and Ors. (unreported; judgments delivered 9th October 2001), this court held that the High Court had no jurisdiction to make an order for third party discovery in criminal proceedings.  In the written submissions lodged on behalf of the applicant in the present case, it was made clear that, on the oral hearing of the appeal, the court would be urged to depart from its earlier decision on the ground that it was erroneous in point of law.  In the written submissions on behalf of the Director of Public Prosecutions it was urged that the appeal should in any event be dismissed on the ground that the applicant was not entitled to either declaratory relief or an order by way of certiorari.

	Since this court is an appellate court, it is normally inappropriate for it to embark on the resolution of issues which were not the subject of debate in the court of trial, at least where the just resolution of the issues between the parties can be achieved without taking that course.  There are, however, features of the present case which make it in my view proper to consider the issue raised as to whether the court should depart from its earlier decision.  This is of its nature an issue which is bound to come before the courts again and it is clearly in the public interest that the law in the matter should be clear beyond doubt.  If the questions raised on this appeal as to the correctness of the decision in Sweeney were left unresolved, it might give rise to the entirely erroneous belief that the decision was of doubtful authority, simply because it had been challenged in this case. I will, accordingly, proceed to consider first the question as to whether the court should depart from its decision in Sweeney.

	In that case, an order for third party discovery had been made against the Rape Crisis Centre by a judge of the High Court sitting in the Central Criminal Court, the alleged purpose of the discovery being the defence of a prosecution for rape to be tried in that court.  At the outset of his judgment, Geoghegan J (with whom Murphy J and Murray J agreed) said that he was satisfied that an appeal lay to the court, notwithstanding that the Order was made by a High Court judge sitting in the Central Criminal Court, a point which does not, of course, arise in the present case.  He then went on to consider the central issue i.e., as to whether there was any jurisdiction to make an order of discovery in criminal proceedings. 

	Geoghegan J then went on to trace the history of the discovery procedure, pointing out that it was originally an equitable device employed in the Court of Chancery for obtaining the disclosure and inspection of relevant documents and that, while the powers of the common law court were originally more limited, following the enactment of the Judicature Acts a common practice of discovery of  documents was established by those acts and the rules of court made thereunder.  He cited the leading textbooks in England on discovery - Bray and Matthews and Mallock - as expressly rejecting the proposition that the process of discovery was available in criminal proceedings and said that there was nothing in the character of the criminal jurisdiction vested in the High Court which could lead to any view that the rules of discovery were to apply to that court in a manner in which they had never applied to its predecessors.
	
	Geoghegan J pointed out that it had been established in recent years that the prosecution in criminal cases are obliged in the interests of fair procedures to make available to the defence any documents relating to the prosecution, even though they do not assist the case for the prosecution.  He added:
		“This arises from the constitutional obligation on the court to ensure fair procedures.  It does not involve the swearing of an affidavit of discovery and it has nothing to do with the conventional discovery procedure set out in the Rules of the Superior Courts.  It is discovery in that legal and narrower sense of the word which was sought from Smith J and there is no doubt that the order he made was of that nature.”

	He also pointed out that in civil proceedings discovery is not normally made until after the close of pleadings.  By contrast, in criminal proceedings there are no pleadings: only the prosecution must make clear its case and, subject to a limited range of statutory exceptions such as alibi evidence, the defence is perfectly entitled, pending the trial, to give no indication as to the issues which it might raise.  He said:
		“In that state of affairs, discovery of documents under the Rules of Court is wholly inappropriate and it is another reason why those rules can never have been intended to apply to criminal proceedings.”

	At an earlier point in his judgment, Geoghegan J had referred to the definition of the word “cause” in s.3 of  the Judicature (Ireland) Act 1877 as including
		“Any action, suit, or other original proceeding between a plaintiff and a defendant, and any criminal proceeding by the crown.”  
	He said that this definition, like every other definition in s.3 of the Act was under the section not to apply if there was “anything in the subject or context repugnant thereto.”  He observed that this definition of “cause” was also to be found in Order 125 of the Rules of the Superior Courts but was to be read in the light of Rule 1 which said that the definitions were not to apply
		“If there is anything in the subject or context repugnant thereto”

	He also referred to a recent decision of this court in Conlon -v- His Hon. Judge Cyril Kelly & Ors. (unreported; judgment delivered 21st February 2001) in which Fennelly J, speaking for the court, had said that the provisions for consolidation of proceedings in Order 49 Rule 6 of the Rules of the Superior Courts could not be construed so as to permit consolidation of indictments in criminal matters, notwithstanding the inclusion of “criminal proceedings” in the definition of “cause”.

	Geoghegan J also referred to a Circuit Court decision of His. Hon. Judge Moriarty (as he then was), The People (Director of Public Prosecutions) -v- Flynn and Keely [1996] 1ILRM 317.  In that case, third party discovery had been sought in a criminal prosecution in the Circuit Court on the basis that, where the Rules of the Circuit Court do not provide for particular situations, the Rules of the Superior Courts are to apply and that, as was argued, the Rules of the Superior Courts contain provisions for third party discovery and “cause” under those rules extend to criminal proceedings.  He cited the reasons given by the learned judge in that case for refusing to grant the order for third party discovery, as being inter alia
		1.	That while the rules left open the possibility of ordering discovery in criminal cases, there was no authority which would support the making of such an order.
		2.	The principle that each party should be entitled to know from the other in advance any information that would enhance his own case or destroy his adversary's case was less applicable in criminal proceedings where the entire burden of proof rested on the prosecution.  
		3.	Discovery was intended to be mutual and it could not be mutual in a criminal case because it would not be ordered against the accused.
		4.	The complainant in a criminal case is bound to supply the prosecution with any information relevant to the case whether favourable to the prosecution or the accused and the judge is obliged to ensure that fair procedures are observed at the trial.  If the prosecution cannot obtain evidence the disclosure of which is necessary for the purposes of the defence, the accused may be entitled to a direction on the relevant counts.  
		
	Geoghegan J went on to say that say that, in his opinion, the learned judge’s reasons were impeccable, save that he did not advert to the contextual limitation on the definitions contained in the Rules of the Superior Courts.  He also referred to another Circuit Court case, The DPP -v- SK (unreported; judgment delivered 14th December 1999) in which Her Honour Judge Dunne had granted orders of discovery against third parties but said that her jurisdiction to do so did not seem to have been raised.

	He finally said that while the issue of privilege clearly arose, it was not, strictly speaking relevant to the question as to whether a discovery order should be made or not in the first instance.  He did observe, however, that there was a wide range of documents and communications created and contemplated in  criminal proceedings which would almost certainly be privileged from production in civil proceedings.  

	At the outset, it necessary to emphasise yet again that the jurisdiction of this court to depart from its earlier decisions was developed because, as Kingsmill Moore J put it in Attorney General & Another -v- Ryan’s Car Hire Limited [1965] IR 642 at p.654, 
		“however desirable certainty, stability and predictability of law may be, they cannot in my view justify a court of ultimate resort in giving a judgment which they are convinced, for compelling reasons, is erroneous.”

	In this case the decision in Sweeney was that of a court of three members, and, no doubt, as hinted by Henchy J in Mogul of Ireland -v- Tipperary NR Co. Council [1976] IR 260 at p.272, the reluctance of the court to depart from its earlier decisions would be greater where the earlier decision was that of a court of five (or, presumably, in our changed circumstances today, even more so where it was that of a court of  seven.)  However, even where the earlier decision was that of a court of three, I am satisfied that it should not be over ruled - again to cite the language of Henchy J - 
	“merely because a later court inclines to a different conclusion.”

	In the present case, it is not suggested that any relevant statutory provision or authority was overlooked so that the judgment could have been regarded as having been given per incuriam.  It certainly cannot be said, given the relatively short time which has elapsed since it was decided, that the 
circumstances in which an application for discovery of this nature comes before the court have altered to such an extent as to require reconsideration of the correctness or otherwise of the decision.  

	Mr. Dermot McGuinness SC, on behalf of the applicant, has urged that the necessity of observing fair procedures in criminal trials mandated by the Constitution should have led to a different construction of the Rules of the Superior Courts so as to permit the making of discovery orders against bodies such as health boards in cases such as the present.  In his judgment, however, in Sweeney, Geoghegan J adverts to the modern developments in case law under which the prosecution are bound to furnish the accused with any documents relevant to the prosecution, even though they do not assist the prosecution case and will not be used by them at the trial, but draws a distinction between this and the inappropriate use of  the civil machinery of discovery, such as was utilised in that case and in the present case.

	It is also suggested that the court in that case did not have regard to the decision of Costello J, (as he then was), upheld by the Supreme Court in Nolan -v- Irish Land Commissioners [1981] IR 23.  Those were civil proceedings in which a landowner was objecting to the inclusion of his lands by the defendants in a “provisional list” on the basis of a certificate by the lay commissioners that the land was “required” for the defendants’ statutory purposes.  The effect of the decision was that, even though the statutory procedure made no provision for the discovery and inspection of documents relating to the making of the certificate, the requirements of natural justice would not be observed at the hearing of his objection, in the absence of prior discovery of the relevant documents and prior inspection by the plaintiff of such of them as were not privileged.  That was a case, accordingly, which was exclusively related to the rights of parties in civil proceedings and is not in any way an authority for the proposition that the same principles must be applied in criminal proceedings.

	I am, accordingly, satisfied that the applicant in the present case has fallen well short of the high threshold which must be reached before the court departs from one of its previous decisions.  No doubt it would be possible to take a different view from that arrived at by the court in that case, but it most certainly cannot be said that the decision was “clearly wrong” or that there are “compelling reasons” for treating it as one of those exceptional cases in which the court will depart from the generally applicable principle of stare decisis.

	I am, in any event, satisfied that the decision in Sweeney was correct in point of law.  The function of discovery in civil proceedings, whether it be inter parties or third party discovery, is to enable both parties to advance their own 
case or damage their opponent’s case.  The court in such cases is normally in a position to ascertain from a consideration of the pleadings what the issues are between the parties and accordingly what documents will be relevant to those issues and, specifically, whether, if discovered and inspected, they will enable a party to advance his own case or damage that being made by his opponent.  In a trial on indictment, such as the present, the issue which the court has to determine is not defined until the accused has been arraigned and has pleaded to the counts laid against him.  Even then, he is not required to do more than plead guilty or not guilty.  There are some rare statutory exceptions to that, such as the requirement to notify the prosecution in advance of a proposed alibi.  But in every other respect, while the prosecution must disclose comprehensively and in detail the case they propose to make against the accused, he is under no such obligation.    Discovery, accordingly, in a trial on indictment would be a wholly one-sided process, which was certainly not what was envisaged by the procedure for inter partes and third party discovery provided under the Rules of Court.  It is clear, accordingly, that, in the case of the Rules of Court dealing with discovery, to treat the word “cause” as extending to criminal proceedings would be clearly repugnant to the context in which it was being used.  

	The fact that discovery in the form provided for in the rules for civil litigation is not available in criminal proceedings does not have as a necessary 
consequence an erosion of the fair procedures to which defendants are entitled.  Thus, in the present case, it was open to the solicitor for the applicant to ensure at the deposition stage that any relevant records or notes in the possession of the social workers were produced and, to at least a limited extent, that was done.  Moreover, the social workers can be required by the applicant to attend the trial and produce any relevant documents by the issue of a subpoena duces decum.

	I am accordingly satisfied that the decision in Sweeney was correct in point of law and it follows that the Circuit Court Judge had, in any event, no jurisdiction to make the order which was sought.  That is sufficient to dispose of the present appeal, but I should add that I am also satisfied that, in the then state of the law, the learned High Court Judge was perfectly correct in holding that the Circuit Court Judge was acting entirely within his jurisdiction - assuming he had such a jurisdiction - when he declined to make the order sought.  Indeed, it is clear from the transcript that he carefully balanced the undoubted public interest in ensuring that such communications to bodies such as health boards remained confidential against the public interest in the administration of justice with its consequent necessity of ensuring that an accused person is not unfairly hindered in the conduct of his defence.  He was clearly entitled to form the view that he did that it had not been established that 
the documents would be of any particular significance in the conduct of the applicant’s defence, other than the possibility that they might afford material for testing the credibility of the complainant.  Even assuming a discovery jurisdiction existed, that would not, of itself, justify the making of the third party order sought in the present case.

	I would dismiss the appeal and affirm the order of the High Court.

ar DH -v- His Hon. Judge R Groarke, DPP NW Health Board & SH