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Cite as: [2005] IESC 75, [2006] 1 ILRM 241, [2005] 3 IR 585

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Judgment Title: Dunphy (A Minor) -v- DPP

Neutral Citation: [2005] IESC 75

Supreme Court Record Number: 290/04

High Court Record Number: 2003 51 JR

Date of Delivery: 02/11/2005

Court: Supreme Court

Composition of Court: Hardiman J., McCracken J., Macken J.

Judgment by: Hardiman J.

Status of Judgment: Approved

Judgments by
Kearns J.
Appeal dismissed
- affirm High Court Ordern
McCracken J.,
Macken J.

Outcome: Dismiss application for leave to appeal

- 2 -



Hardiman J. 290/04
McCracken J.
Macken J.



JUDGMENT of Mr. Justice Hardiman delivered on the 2nd day of November, 2005.

This is an appeal from the judgment and order of the High Court (Kearns J.) of the 22nd March, 2004, whereby the applicant’s motion for discovery in these proceedings was refused.

The applicant is presently the defendant in criminal proceedings. She is alleged to have been in unlawful possession of a controlled drug on the 22nd October, 2001, and to have been in possession of the same drug for the purpose of unlawfully supplying it to another. She was arrested, together with another girl called Emma Kavanagh, in Portmarnock and was found to be carrying a bag which contained the drug in tablet form. She was interviewed by the Gardaí and said the drugs were the property of a friend of hers, Gareth Hickey. He had given the drugs to the other girl, Ms. Kavanagh, on the previous day. She had kept them overnight, and told Ms. Dunphy about them. Ms. Kavanagh however could not keep the drugs on the next night as she was not going to be at home. On that night, the owner of the drugs, Gareth Hickey had “business” in Portmarnock with the drugs and prevailed upon the applicant to carry the drugs for him as she was less likely to excite suspicion. She had them partially concealed by a jacket which Ms. Kavanagh had given to her for that purpose.

Ms. Kavanagh admitted that she had accompanied Hickey to an address in Killester when he collected the drugs which according to him consisted of “1,000 Es”. She had carried the drugs for him on that night and subsequently kept them at home and brought them to school the next day.

Mr. Hickey accepted responsibility for the drugs. He said that he had paid Ms. Kavanagh £30.00 to mind the drugs.

At the time of these events the applicant and Ms. Kavanagh were fifteen years of age and Mr. Hickey was nineteen. The applicant’s background is an unfortunate one and she had lived in care, in a hostel, for some time. On the hearing of this appeal it was strongly submitted that the applicant’s involvement in the matter described above was the least of the three. The reality appears to have been that both girls were heavily under the influence of Gareth Hickey and were prepared to oblige him in any way he wished.

The complaint.
The applicant is aggrieved at the fact that while she is being prosecuted in respect of her dealings with Gareth Hickey’s drugs, Ms. Kavanagh is not. Instead, she was diverted from the criminal process under the Juvenile Diversion Programme, in accordance with an appendix to the Director of Public Prosecutions “general guidelines”, published October, 2001.

By letter of the 13th November, 2002, the applicant’s solicitors wrote to the Director setting out their view of the case. Specifically they contended that the applicant was a vulnerable person and that her involvement was much less than that of the other girl who had “collected the tablets, received a remuneration, and held the tablets in her possession (in her house and in her school bag) for nearly two days”. The solicitor’s letter concluded: The solicitors asked either that the applicant be dealt with under the Juvenile Diversion Programme or, in the alternative, that the Director disclose “the precise basis and documentation in existence touching upon same (including internal memoranda) on which the decision was reached to prosecute our client and to deal otherwise with a person who was much more culpable than our client”.

The Director replied tersely that “… The decision to prosecute Sabrina Dunphy was made in line with the general guidelines as published by the D.P.P’s office in October, 2001. It is not proposed to reverse the decision such that your client be dealt with under the Juvenile Diversion Programme”.

The proceedings.
By order of the 27th January, 2003, the High Court (Miss Justice Carroll) granted the applicant leave to seek reliefs by way of judicial review including:
(1) An order prohibiting the respondent his servants or agents from taking any further step in the criminal prosecution,
(2) An order in the nature of an injunction… restraining the respondent his servants or agents from taking any further step in the prosecution,
(3) A declaration that the respondent has acted otherwise and in accordance with law in initiating the said prosecution,
(4) A declaration that the respondent has acted other than in accordance with law in maintaining the same prosecution,
(5) A declaration that the respondent has acted in breach of the constitutional rights of the applicant and in particular her constitutional right to be held equal before the law,
(6) A declaration that the respondent has acted otherwise in accordance with law and/or in breach of the constitutional rights of the applicant in failing to give reasons for initiating the prosecution… while applying the Juvenile Liaison/Diversion Scheme to a confederate,

(7) An order of mandamus requiring the respondent to give reasons for the decision not to apply the provisions of the Juvenile Liaison/Diversion Scheme in the case of the applicant.

In July 2003 the respondent filed a notice of opposition stating that there was no reason to believe that his decision to prosecute the applicant was mala fide, perverse, inspired by improper motives or policy, or was the result of an abdication of his functions. He also pleaded that in the absence of evidence from which it could reasonably be inferred that the decision to prosecute her was of that nature, her complaints were not cognisable by any court and could not give rise to any relief. He also pleaded that in the absence of such evidence the applicant was not entitled to require reasons to be given as to why he did in fact initiate the prosecution. He further pleaded that no right of the applicant had been violated.

In November, 2003, the applicant sought voluntary discovery substantially in the form set out above. She said that she had been discriminated against unfairly by comparison with the treatment accorded to Ms. Kavanagh who was factually more culpable. She further said that the respondent had discriminated between the two girls in a manner which was unconstitutional, unfair and arbitrary. She further said that, in the absence of discovery, she would have great difficulty in dealing with the respondent’s statement of opposition.

On the 22nd April, 2004, the applicant issued her notice of motion for discovery which was refused on the date mentioned above.

The High Court Judgment.
The High Court judgment, which was given ex tempore, is short enough to be set out in full:Position of the D.P.P.
It is appropriate to analyse the position of the Director of Public Prosecutions as a starting point for the resolution of the issues in this case.

In State (McCormack) v. Curran [1987] ILRM 225, the Director advanced the very far reaching proposition that his decisions to prosecute or not to prosecute were “Not as a matter of public policy ever reviewable by a court.” This position was rejected but a degree of privilege arguably only slightly less thorough going was envisaged in the judgments. In the High Court, Barr J. held that:On appeal, Finlay C.J. said:
McCormack was an unusual case where the applicant was attempting to force the Director of Public Prosecutions to prosecute him on particular charges so that he could be tried in the Republic rather than in Northern Ireland, pursuant to the Criminal Law Jurisdiction Act, 1976.
In H v. D.P.P. [1994] 2 ILRM 285, there was also an attempt to compel the Director to institute a prosecution (against the applicant’s husband and another person) or give reasons, and supply documents, relating to the decision not to do so. This attempt was unsuccessful. The policy reason which may, in part, underlie the special position of the Director was mentioned in the judgment of O’Flaherty J. as follows: The test indicated in the extracts, given above, from the decisions in McCormack, were adopted in H. and relief was refused because, in the words of Denham J.: The two last mentioned cases were cited with approval in
Eviston v. Director of Public Prosecutions [2002] 3 IR 260. This was a case in which the applicant, Ms. Linda Eviston, was involved in a road traffic accident in which another driver was killed on the 28th June, 1998. The applicant made a full statement to the Gardaí and gave them copies of her consultant engineer’s report suggesting that the accident was due to factors outside her control. The matter was considered in the Office of the Director and a decision made that no prosecution should be instituted. The applicant was made aware of this in early December. On the 23rd December, however, the Gardaí made an application for a summons alleging the indictable offence of dangerous driving causing death against the applicant. It transpired that the Director had changed his mind. A letter had been received from a relative of the deceased asking the Director to prefer “charges of some description” against the applicant. The summons was applied for within four working days of receipt of the letter. The applicant instituted judicial review proceedings to restrain the prosecution and was successful in this. A deponent on behalf of the Director said that the Office of the Director of Public Prosecutions operated a system of internal appeal or review and that this was triggered by the relative’s letter. But the applicant was, of course, wholly unaware of this system and had been given no reason to believe that the decision not to prosecute her might be reviewed and a contrary decision taken.

Keane C.J. in his judgment referred to the two cases cited above and said that: The learned Chief Justice then referred to The State (O’Callaghan) v. Ó hUadaigh [1977] IR 42 and continued: It thus appears that the right of the respondent to give no reasons for a decision to prosecute or not to prosecute, except in the very limited circumstances set out in the first extract above from Eviston, is very firmly established. But Ms. Eviston was granted relief because: On this appeal, Mr. Michael O’Higgins S.C. for the applicant/appellant relied heavily on Eviston and pointed out that, in that case, the Director had in fact disclosed the letter he had received and the fact that he had reviewed the previous decision on foot of it. That much is undeniable, though it appears that the applicant was aware before that disclosure was made that there had been an approach from the deceased’s family though not of course of its contents. But even allowing that these matters were voluntarily disclosed by the Director, that does not appear to me to help the applicant in this case. The disclosure in Eviston extended to the text of the letter received by the Director and the existence of a system of appeal or review. It did not extend to the reasons for either the first decision not to prosecute or the second decision to the contrary effect except insofar as these can be inferred from the admission that there was no new evidence available when the second decision was taken. But that only leads to the conclusion that the second, reviewing, official, (said to have been “at the highest level”) took a different view of the case than the original official had. The reasons or impression which actuated either decision maker were not revealed. Moreover, the case trenchantly reasserts the right of the Director not to give reasons for his decisions to prosecute or not to prosecute.

The submissions.
Mr. Michael O’Higgins S.C. acknowledged that the Director’s decision was not reviewable except in the very limited circumstances which are pithily expressed in the first exert given above from the judgment of Chief Justice Keane in Eviston. But he emphasised that the Court was not now addressing the question of whether that hurdle had been overcome: it was dealing solely with an application for discovery. He was entitled to this, he said, on the basis that the order would only require the Director to list the documents he had: if he claimed privilege over them that matter would have to be subsequently addressed, presumably on a motion for Inspection. He said that the cases established that the decision of the Director was, albeit in limited circumstances, capable of being reviewed and that fact, he said in itself grounded the entitlement to discovery. He said that the Director was not entitled to maintain a studied silence and rely exclusively on the onus of proof being on the applicant. In that connection he relied strongly on the case of Brennan v. Windle [2003] 3 IR 494. He also referred, pre-emptively, to the case of K.A. v. Minister for Justice [2003] 2 IR 93.

That case featured discovery which was sought in aid of an attempt to quash the respondent’s refusal to grant the applicant refugee status. He sought particulars of the total number of decisions reached by each member of the Refugee Appeals Tribunal which were not affirmed or accepted by the Minister and, secondly, the total number of decisions recommending grant and refusal respectively of refugee status by each member of the Tribunal and the Appeal Authority. Dealing with the question of discovery in judicial review, Finlay Geoghegan J. first set out the ordinary principles on which discovery is ordered and continued:
The learned judge went to refer with approval to the decision of Bingham M.R. in R. v. Secretary of State for Health, ex parte Hackney London Borough (unreported, Court of Appeal, 24th July, 1994). There, the Master of the Rolls expressed the test be met by an applicant for discovery in judicial review proceedings as follows: In K.A., the form of illegality alleged was that the Minister in making his decision to deport failed to exercise his discretion and/or adhered to an inflexible policy rule. But there was no evidence of this: the applicant sought discovery in the hope of finding some, which is the activity usually described as “fishing”.

In the present case Mr. O’Higgins relied on what he called the disparity in the treatment of the applicant and of Ms. Kavanagh respectively, as giving the substance to the allegation of illegality in the present case, and as distinguishing it from K.A. He says that this disparity indicates, prima facie, irrationality or perversity in the decision he challenges, and that that is enough to entitle him to discovery on the established principles.

The Disparity.
In my view the distinction or, as Mr. O’Higgins called it the disparity identified in this case in the treatment of the two girls is not such as gives rise to any prima facie apprehension of impropriety. Not only does it not amount to a prima facie case, it does not even suggest impropriety. The reason why the applicant prefers the term “disparity” to “distinction” is that the former word is suggestive of inequality, both in its Latin derivation and in its contemporary usage.

Equality before the Law.
Equality before the law is, of course, required by Article 40.1 of the Constitution which provides: The Irish version of the first sentence of this Article “Áirítear gurb ionann ina bpearsain daonna na saoránaigh uile i láthair an dlí”. This may be regarded as acknowledging the equality of all citizens, in their human personality, before the law.

But these words do not require a rigid or mathematical equality of treatment in all circumstances. In the words of Henchy J. in The State (Keegan) v. Stardust Victims Compensation Tribunal [1986] IR 642 at 658: There are numerous examples of legitimate distinctions, or disparities, throughout our law, based on differences of individual functions or circumstances. Thus, for example, in Dillane v. Ireland [1980] ILRM 167, the Supreme Court upheld a provision of the District Court Rules whereby costs could not be awarded against a member of the Garda Síochána who acted as prosecutor, though they could be awarded against an ordinary citizen acting as a common informer. In Quinns Supermarket v. Attorney General [1972] IR 1 Walsh J. said, at pages 13 and 14 that the constitutional provision: For the purpose of this case it is sufficient to note the well established scope for distinguishing between individuals. There is no need to go into the question of whether the guarantee of equal treatment applies only to matters touching the human personality as such, and not to matters such as commercial, trading, or educational activity. These issues simply do not arise here.

The Juvenile Diversion Scheme.
The complaint of inequality in this case arises in the context of the Juvenile Diversion Scheme which was applied to the other girl involved so that she never came before a court at all. The information before the Court about this scheme is set out as appendix I to a document published by the Office of the Director of Public Prosecutions, “Statement of general guidelines for prosecutions”. The relevant guidelines set out some indisputable matter in relation to juvenile offenders such as: The precise nature of this scheme is stated later in the appendix as follows: The conditions for entering into the scheme are then set out and it appears to be indisputable but that the other girl met them insofar as her circumstances are before the Court.

One of these is that the juvenile “has not been cautioned previously or, having been cautioned the circumstances are such that it would be deemed appropriate to administer a further caution”.

It also appears from the context of the appendix that, save in the case of specific offences, a person may be diverted from the “formal criminal justice system” by the Gardaí involved, including a District Officer, without the matter going to the Director of Public Prosecutions at all. It was not contended that the offences involved here were such that required a proposal to deal with the matter by caution to involve the Director. In answer to this difficulty, Mr. O’Higgins said that if necessary he would argue that the Director, being aware that the other girl was dealt with under the Diversion Programme, should not have proceeded to charge the applicant. Having regard to the view I take of the broader issues in the case it is unnecessary to consider whether relief might be granted against the Director, or whether some other party would require to be impleaded.

Salient facts.
Two factual matters appear to me to be of some importance in addressing the issues in this case. The first is that it is by no means obvious to me that, as the applicant contended, her degree of complicity in the crimes in question was less than that of the other girl. It is true that the other girl held the drugs for longer but that does not seem to me to affect the degree of moral complicity involved. In the case of each of the girls, the salient feature is that she held the drugs at the request of the nineteen year old and it appears that each of them was very heavily under the influence of this young man. That is how they came to be involved in these offences and it would, I suppose, constitute the principal mitigation. Secondly, it appears from the affidavit of the applicant’s solicitor that she had already had the benefit of a caution, rather than a prosecution, under the Diversion Scheme. On this topic, the solicitor says that he believes and is advised “That having the benefit of the Scheme once does not act as a bar to its application on subsequent occasions.”

That is undoubtedly true. It is equally true that the fact that a juvenile has had the benefit of the Scheme on one occasion is a proper matter to be taken into account when considering whether she should have the benefit of the Scheme again. There is no suggestion that the other girl had any previous involvement in the Scheme, or any previous convictions. There is clearly scope for the view that the applicant should not again be given the benefit of the Diversion Scheme, either on the basis that she had not profited from her previous experience of the Scheme, or on the basis that the vindication of the law in the fraught matter of unlawful drugs required that a person who had not taken a previous opportunity offered by the Diversion Scheme should not be given the benefit of it on another occasion, or indeed for a combination of these views. Having regard to the fact that it is for the applicant to demonstrate that the facts “… exclude the reasonable possibility of a proper and valid decision by the D.P.P…” it is unnecessary to make further findings. There is clearly scope for the view that the decision to divert the other girl involved into the Juvenile Liaison Scheme, and the Director’s decision to prosecute the applicant, are each quite consistent with total propriety in the respective decision making processes.

This being so, I believe that the applicant has made no showing at all towards discharging the burden that indisputably lies on her, even in a suggestive or prima facie fashion.

Has the onus of proof shifted?
Mr. O’Higgins relied on the case of Brennan v. Windle [2003] 3 IR 494 in order to support the proposition that, in the circumstances of this case, he had adduced sufficient evidence to shift the onus of proof to the respondent.

In Brennan the applicant received a prison sentence at a District Court hearing at which he was not present. He came before the High Court after he had already served some three weeks in prison. He said that he had not been personally served with the summons issued against him, and that he had not heard from any other person about the service of the summons at an address he once had. It is central to an understanding of the case to note that it was not disputed that the applicant in that case had no notice of the hearing. But the Director claimed that there was an onus on the applicant affirmatively to prove that there had not been adequate proof of service before the District Judge.

In those circumstances, I noted in my judgment: I went on to hold that he applicant here had established a prima facie case that his detention was unlawful and had “done quite enough” to shift the onus of proof on the question of service. I am quite happy to reiterate all that was said in Brennan, but I do not think it assists the applicant here. This is for two reasons. Mr. Brennan was able to show what was on the face of it a grave injustice: he lost his liberty after a hearing of which he was unaware. Moreover, this was undenied, so that it was beyond dispute that he had been denied one of the two basic components of natural justice, the right to be heard. That situation is to be sharply distinguished from what happened here where, as I have already held, nothing has been proved even to suggest an impropriety. Secondly, both Brennan and a case cited in my judgment there on the question of the shifting onus of proof, Hanrahan v. Merck, Sharp and Dolme [1988] ILRM 629, were concerned with information which did 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.Conclusion.
I would accordingly dismiss the appeal and affirm the order of the learned High Court Judge.

Sabrina Dunphy

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