Supreme Court allows discovery affidavit against DPP but upholds prosecution immunity from full disclosure.

[2006] IESC 51

THE SUPREME COURT

117/06

McGuinness J.

Hardiman J.

Kearns J.

Between:

CECILY CUNNINGHAM

Applicant

And

THE PRESIDENT OF THE CIRCUIT COURT and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondents

JUDGMENT of Mr. Justice Hardiman delivered the 26th day of July, 2006.

1. This is an appeal from the judgment and order of the High Court (Murphy J.) of the 19th December, 2005. The issue relates to

whether or not an order for discovery in particular terms should be made against the second-named respondent, the Director of Public

Prosecutions.

Background.

2. The applicant worked for many years as a biochemist with the Blood Transfusion Services Board. She has been charged with seven

offences contrary to s.23 of the Offences against the Person Act, 1861. Three of these are alleged to have taken place in 1991 or

1992 and four in 1977. The form of charge in each case is the same:

“On the 28th May, 1977, at St. Munchins Hospital, Limerick, in the District Court area of Limerick, Cecily Cunningham

unlawfully and maliciously caused a noxious thing namely infected Anti-D Immunoglobin to be taken by [alleged victim]

thereby inflicting on [the same person] grievous bodily harm. Contrary to s.3 of the Offences against the Person Act,

1861”.

3. The most recent of the alleged offences is said to have occurred fourteen years ago and the most remote over twenty-nine years

ago.

4. The applicant was charged with these offences in July, 2003 and she sought relief by way of judicial review later in that year. She

was originally charged jointly with a co-accused, Dr. Terry Walsh, who had been National Director of the Blood Transfusion Service.

Dr. Walsh has regrettably since died.

5. The applicant sought relief on the ground of delay. Very broadly, the allegation against her is that the health of each of the

persons mentioned in the charges was impaired as a result of receiving contaminated Anti-D. This was a blood product produced by

the Board while the applicant was employed by it as a biochemist, later as a principal grade biochemist. It is alleged that certain

batches of the product were contaminated by using plasma taken from two named persons who had contracted Hepatitis C prior to

the plasma being taken from them. Ms. Cunningham says that she always discharged her functions as an employee of the Board with

due care and diligence “in accordance with the information and training made available to her and in conformity with the practise” at

the relevant times. She says she obeyed the instructions given to her by those superior to her in the medical and general hierarchy of

the Board. These include her former immediate scientific superior, his superior, the Assistant National Director and the National

Director. All of these are now deceased except for one person who lives abroad. It is alleged that other persons relevant to the case

are also deceased or unavailable.

6. Due to widely publicised and tragic medical events, an Expert Group was established in 1994 to investigate inter alia “all the

circumstances surrounding the infection of the Anti-D immunoglobin product” manufactured by the Board. The report of this body was

published in 1995. In October, 1996, a Tribunal of Inquiry was established under the former Chief Justice, Mr. Justice Finlay, to inquire

into the same topic and many other related matters. Mr. Justice Finlay delivered his report in March, 1997, and it was published at the

same time. This report was furnished in the same month to the Director of Public Prosecutions with the request that its contents be

considered. Also available were the stenographic record of the hearings before Mr. Justice Finlay consisting in all of thirty days of

evidence and submissions. Garda investigations were set in train. Some six years and three months later the applicant was charged

with the offences already referred to.

7. The applicant says that she co-operated with the garda investigations and in particular attended an interview with the

investigators in October, 1999. She says that it is clear from the questions and documentation put to her by the gardaí “that the

garda investigation at that time was virtually complete”.

8. The second-named respondent opposes the applicant’s claim, saying that the investigation into this matter “was one of the most

complicated ever to have been mounted. This was due to the volume of material, the number of complainants and the complexity of

the subject matter. In addition to the factual difficulties there were also legal difficulties”.

The affidavits.

9. A number of affidavits were filed by the respondent verifying the statement of opposition. In particular, and in relation to the period

June, 2000, to April, 2003, it is said that queries emanating from the office of the Director had to be dealt with. Detective

Superintendent John O’Mahony refers to these queries, arising in June, 2000, and refers to correspondence with the B.T.S.B. and a

Dr. Yap. There was a further garda report to the Director in October, 2000, which “outlined that the investigation team were

continuing with inquiries at the B.T.S.B. in an effort to further advance the responses required to matters raised by [the Director]…

he further outlined that the gardaí were awaiting correspondence from Dr. Yap…”. The Superintendent also says “there was

correspondence between the office of the D.P.P. and the investigation team seeking clarification and further investigations” and that

these led to further inquiries which “were forwarded to the offices of the D.P.P. for its information. The correspondence referred to

arose out of queries and clarifications sought by the office of the D.P.P. This correspondence was over a protracted period”.

10. There were then references as to further requests for clarification and queries from counsel.

11. These matters, including certain references to correspondence, also feature in the affidavits of Mr. Declan Murphy and Mr. Jarlath

Spellman, both at the time professional officers of the D.P.P., sworn on behalf of the Director.

12. The applicant sought and obtained leave to cross-examine Mr. Murphy and Mr. Spellman on their affidavits.

Motion for Discovery.

13. After some correspondence, the applicant issued a notice of motion for discovery of certain categories of documents. By order of

the 19th December, 2005, she was granted discovery of “all documents relating to communication between the prosecuting

authorities and the B.T.S.B. after October, 1999, in relation to the criminal investigation resulting in the prosecution of the applicant

herein and all documents touching or concerning or relating to communication between the prosecution authorities and Dr. Yap after

October, 1999, in relation to the criminal investigation resulting in the prosecution of the applicant herein”.

14. She was however refused an order of discovery in relation to:

“(a) All correspondence between the office of the D.P.P. and the gardaí in respect of the progress of the criminal

investigation into the applicant. In particular:

(i) The report of Detective Chief Superintendent Séan Caman referred to in paragraph 33 of the affidavit of Detective

Superintendent John O’Mahony;

(ii) The correspondence referred to in paragraph 34 and 35 of the affidavit of Detective Superintendent John O’Mahony;

(iii) The correspondence referred to in paragraph 7 of the affidavit of Jarlath Spellman sworn on the 19th May, 2004, all of

which correspondence is not exhibited”.

Applicant’s case on necessity for discovery.

15. The applicant points out that one of the issues for resolution in the judicial review proceedings is whether the prosecution

proceeded with due expedition. The Director put forward, amongst the reasons for the long delay, the ongoing correspondence

between his office and the persons mentioned in the affidavits. This correspondence however is not exhibited and the subject matter

of it is, for the most part, not fully identified. Only one additional statement, appearing at p.114 of the Book of Evidence appears to

have been taken as a result of the ongoing correspondence. Accordingly, the correspondence has been “deployed” in this litigation for

the purpose of supporting the respondent’s case, in a manner which permits of no real contradiction by the applicant. Furthermore, it

will be difficult or impossible effectively to cross-examine two of the deponents on behalf of the respondent, the two officials from the

office of the D.P.P., without sight of the correspondence and an ability to say whether or not it indeed supports the case made, and

meets the description given in the affidavits.

Respondent’s case.

16. The Director says that the proper approach to the question of prosecutorial delay is not to conduct a “micro analysis” of every

step taken and every direction given, or to conduct a complete documentary review. Rather, there should be “a more general analysis

of broad periods of time in question and the general steps that were being taken in the investigation”. He says that if the applicant

succeeds in her application then “in future every prosecutorial delay case will become a mechanism whereby applicants can penetrate

the decision making processes of the D.P.P. and can obtain the D.P.P. file on a case”. This would undermine the special protection of

the Director, recently acknowledged in this Court in Dunphy v. D.P.P. [2006] 1 ILRM 241. The applicant is engaged in a fishing

expedition. Furthermore, although she says she is not seeking the reasons for her prosecution, or seeking to attack the special

protection available to the reasons for the decision to prosecute, she is in fact doing so. The Director of Public Prosecutions has only

one core function: to decide whether to prosecute or not to do so. Accordingly, all correspondence engaged in by him relates to that

core function, which is heavily protected at law against any requirement to give reasons for his decisions. The Director says the

applicant is effectively seeking to appeal or circumvent the recent and authoritative decision in Dunphy and that “unsustainable

discovery applications that fly in the face of settled Supreme Court jurisprudence but which are nonetheless appealed all the way to

the Supreme Court hold an obvious attraction to applicants who have no particular desire to face a trial with expedition”.

17. In reply, the applicant said that the respondent’s submissions were based on a misrepresentation of her case. She was not

seeking the reasons for the decision to prosecute her, nor was she challenging that decision. She was relying on the delay, not

seeking to impugn the decision to prosecute. She was seeking discovery of correspondence which had been deployed for the purpose

of litigation by the respondent himself. It was this fact, primarily, that grounded her entitlement to discovery.

Decision.

18. It will be seen that no suggestion has been made by the respondent that the correspondence in question is irrelevant to the

matters at issue in the judicial review proceedings. This indeed could hardly be said since the correspondence has been mentioned in

the affidavits filed on behalf of the respondent, and only in that way came to the attention of the applicant. But a strong case is

made by the respondent that he should nonetheless not have to make discovery because to do so would undermine his special

position in relation to the reasons for his decisions, recognised in Dunphy. The Director says that this is so even though it would be

open to him to claim privilege in respect of any particular item of correspondence or indeed of every item.

19. Dunphy was a case of a teenage girl charged with possession of controlled drugs. She sought prohibition preventing her trial

substantially on the ground that another girl who had been in the possession of the same drugs had not been charged but had been

dealt with by caution under the Juvenile Liaison Scheme. She said that this disparity of treatment was prima facie evidence of an

unfairness in the decision to prosecute her. She did not deny however that she herself had previously had the benefit of the Juvenile

Liaison Scheme, whereas the other girl had not. In the course of the proceedings she sought discovery of the respondent’s reasons

for prosecuting her. This was refused both in the High Court and in this Court.

20. The portion of my judgment in Dunphy on which the Director principally relies is at page 254. Certain other cases cited were

distinguished on the grounds that they related to:

“information which does 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”.

21. The applicant here seeks to distinguish Dunphy’s case. Firstly she points out that it was a request for discovery of the reasons for

the prosecution which she does not seek (and which are in any event, I should imagine, clear enough from the Book of Evidence). The

decision to prosecute itself is not controversial here, she says, but the reasons for the prima facie inordinate delay are highly

relevant. She is charged with offences allegedly occurring many years ago which, before the Director or the gardaí became involved

at all, had already been thoroughly investigated by an Expert Group and by a Tribunal of Inquiry. The file was in the Director’s office

for over six years and this is prima facie indicative of prosecutorial delay, especially in the context of the enormous volume of material

already available at the start of the Director’s consideration of the file.

22. The applicant places primary reliance on the deployment of the correspondence by the Director himself. It is this factor, in

particular, that she claims makes the Dunphy decision wholly inapplicable as authority. Dunphy was not a delay case, but a direct

challenge to the decision to prosecute itself. This case is a delay case and she simply seeks discovery of material expressly relied

upon by her opponent to justify that delay.

23. The reference, in the judgment in Dunphy to a “special evidential standard for the applicant” in cases where the D.P.P. decision to

prosecute or not to prosecute is challenged, is a reference to the principles emerging from such cases as Eviston v. D.P.P. [2002] 3 IR

260. In that case, the applicant was involved in a traffic accident in which a man was unfortunately killed. She tendered a full

explanation to the gardaí, supported by an engineer’s report, relying on a mechanical defect of which she could not reasonably have

been aware. The Director decided not to prosecute. This decision was communicated to the applicant. Later, the deceased man’s

family having made representations, the case was re-examined and a decision to prosecute was taken. There was no change in the

evidence available at the time of this second decision. This decision was successfully reviewed. Having surveyed cases on the topic

Keane C.J. said:

“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 on the ground that fair procedures had not been observed”.

24. The principle, to which the Eviston case was an exception, was stated by Keane C.J. to be:

“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 on which it could be inferred that he has abdicated 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’.”

25. It appears to me that a more directly relevant authority than Dunphy is Hannigan v. D.P.P. [2001] 1 IR 379. This, again, was a

discovery issue in the course of judicial review proceedings. The applicant’s underlying complaint was that summary disposal of a case

against him was available only in the event of a plea of guilty and, secondly, that this position represented a volte face on the part of

the Director, who was at one point prepared to consent to summary disposal unconditionally.

26. In the course of an affidavit filed on behalf of the Director, a garda superintendent referred to a letter from the Director. He did

not quote it but his next statement was as to the intention of the Director about the venue of trial. He further said that the letter

raised “certain queries in relation to certain matters”. He said he sent “copies of the correspondence” to another member of the

gardai to deal with.

27. In that case, unlike the present one, the correspondence in question had already been disclosed in an affidavit of discovery so

that the issue arose on the applicant’s claim to inspection. The Court referred to Matthews and Malek Discovery (London, 1992) at

paragraph 9.15;

“The general rule is that where privilege material is deployed in court in an interlocutory application, privilege in that and

associated material is waived”. (Emphasis added)

28. Reference is then made to a well known passage in Nenea Karteria Maritime Company Ltd. v. Atlantic and Great Lakes

Steamships Corporation (No.2) [1981] Com. LR. 139 saying that after such “deployment”:

“The opposite party must have the opportunity of satisfying themselves that what the party has chosen to release from

privilege represents the whole of the material relevant to the issue in question”.

29. This Court held:

“the position seems to be that the document in question was referred to and its contents summarised, for litigious

purposes by the party entitled to claim privilege in it. This deployment seems inconsistent with an assertion either of

irrelevance or of harmful effects following from its disclosure.

Furthermore, no grounds specific to the document itself has been urged against disclosure. The document seems clearly

capable of advancing one party’s case or damaging that of the other, to adopt the classic statement in The Compagnie

Financiere et Commerciale du Pacifique v. The Peruvian Guano Company [1882] 11 Q.B.D. 55.”

30. There are clear similarities between the factual matrix of Hannigan and that present here. The principal similarity is that the

material targeted by the party seeking discovery was in each case material referred to in an affidavit filed on behalf of the

respondent. In neither case, therefore, was there any issue as to relevance.

31. A point of distinction arises, however, in that the Director had made an affidavit of discovery in Hannigan whereas he declines to

do so here. In doing so, he relies on a dictum of my own in Dunphy:

“The granting of discovery, even if the applicant failed to get inspection, would or might undermine the special protection

available to the Director”.

32. I am quite happy to reiterate all that was said in Dunphy, but I do not think it assists the respondent here. Dunphy was an

express and direct attempt to obtain discovery of the respondent’s reasons to prosecute in circumstances where the applicant was

unable to point even to evidence suggestive of any impropriety on the Director’s part. This was a direct challenge to a long

established immunity or protection of the Directors without any show of the sort of oddity or absence of fair procedures which had

availed the applicant in Eviston. In such circumstances the application for discovery was simply unstateable: granting it would have

given countenance to an unstateable case and involved the Director in taking some steps at least towards “seeking to justify that

which should not require to be justified”, to adopt the phrase of O’Flaherty J. in H. v. The Director of Public Prosecutions [1994] 2 IR

589.

33. This case is of a different sort. After two lengthy inquiries, one by an Expert Group and one by the former Chief Justice, the

Director or his agents came into possession of an enormous amount of material including transcripts of the examination and cross-

examination of the applicant and all the relevant parties who were still alive at the time of the former Chief Justice’s inquiry. But the

file remained in the Director’s office for the ostensibly very lengthy period of 6 ¼ years before the applicant was charged. This period

of time may, of course, turn out to be quite justifiable, but it requires to be justified. This indeed seems to be the view of the Director

as well because he has filed three affidavits seeking to do just that, referring to the complexity of the case in general and other

matters. Amongst these other matters, however, is correspondence said to have gone on over a protracted period. This appears to

me to engage precisely the principle set out Nenea Karteria, cited above: that Ms. Cunningham must have the opportunity of

satisfying herself that what the opposite party has chosen to refer to represents the whole of the material relevant to the issue in

question, and is accurately characterised.

34. This finding in no way removes, reduces, or limits the special position of the Director of Public Prosecutions in relation to giving

reasons for his decisions to prosecute or not to do so. Indeed, I wish to reiterate what I said on that topic in Dunphy. That

protection is in no way diluted by the granting of the relief sought here, which is merely that the respondent or his agent should make

an affidavit of discovery. He has the fullest entitlement to claim privilege over any document, over all documents, or over any portion

of any document as he may be advised or think fit. But he must list every document, whether he is willing to disclose it or not. If an

objection to produce any document is made it will be dealt with in accordance with law.