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  • 2000 an application was made on behalf of the applicant to the District Court judge for a case stated setting out the facts and grounds of the determination made by him in the proceedings aforesaid On the 9th day of February 2000 that application was refused on the grounds that the learned judge regarded the application as frivolous 8 An application was then made on behalf of the applicant for judicial review In the statement grounding the application for judicial review dated the 14th March 2000 and the affidavit of the applicant grounding it the history of the matter was set out and it was contended that the decision of the learned District Court judge should be quashed on the grounds that it was made in excess of jurisdiction for reasons which included the following 1 The learned first named Respondent failed to comply with the principles of natural and constitutional justice by failing to address the legal submissions made by counsel for the applicant at the close of the case to the prosecution and further at the close of the case for the defence 2 The learned first named Respondent failed to comply with the constitutional and legal function of administering justice by failing to inquire for all the purposes of the proceedings then before him into the alleged unlawful detention of the applicant herein 3 The learned first named Respondent acted in excess of jurisdiction by failing without just cause to exclude evidence obtained in breach of the applicant s constitutional rights 9 The application was heard by O Caoimh J who by his judgment and order dated the 23rd day of March 2001 refused the application on behalf of the applicant It is from that judgment and order that the applicant appeals to this Court 10 There is no dispute between the parties on the facts and the difference between them on questions of law is a fine one indeed 11 It is of course common case that if the applicant was in unlawful custody at the time when the sample was taken that the evidence relating to the analysis of the sample would not have been admissible in evidence Again the experienced lawyers had no difficulty in agreeing that the principles enunciated by Viscount Simon in Christie v Leachinsky 1947 AC 573 at p587 588 and approved by this Court in The People v Walsh 1980 IR 294 were applicable in the present case The relevant principles so far as material may be summarised by saying that where a policeman arrests without warrant upon reasonable suspicion of a felony or other crime of a sort which does not require a warrant he the policeman must in ordinary circumstances inform the person arrested of the true ground of arrest The principles so established and approved included however an exception which was expressed in the following terms The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if

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  • lands These included telephone numbers appearing at the foot of the memorandum which Ms Howard deposed were those of the defendant s secretary his direct telephone line his mobile telephone line and his telephone contact numbers at Dáil Éireann These documents indicated that the company called Navona Limited was being formed in the Isle of Man as the company in whose name the property was to be purchased In turn Navona Limited was to hold those lands in trust for an Irish company Southfield Property Company Limited to whom the Bank of Nova Scotia issued a loan facility letter on 23rd December 1987 offering to advance the sum of 350 000 That letter made it clear that the facility was being provided on condition that a letter of comfort in a format acceptable to the bank from Mr Goodman was provided which would include a provision that Mr Goodman would not relinquish 100 beneficial ownership of Southfield Property Company Limited so long as any amounts remained outstanding under the facility The tribunal was further informed by Mr Goodman that he was never provided with any shareholding in Southfield Property Company Limited and that it subsequently sold its interest in the lands to another Isle of Man registered company Vino Property Limited without reference to him without discharging the interest payments which he had made in respect of the loan and without accounting to him for any share in the profit realised upon the sale in breach as Mr Goodman alleged of the defendant s agreement with him He further informed the tribunal that between 1993 and 1995 he was seeking to recover from the defendant the monies which he had expended in the payment of interest on the property loan in respect of these lands He said that in the course of these dealings he was provided by the defendant with a memorandum prepared by him and faxed on the 12th December 1994 Mr Goodman told the tribunal that he did not agree that the facts recited in the memoranda were correct and in particular denied that he had any knowledge of any parties other than the defendant in the transaction to acquire these lands The relevant contents of the memorandum exhibit MAH52 are summarised as follows by Ms Howard at paragraph 13 of her affidavit I refer to the memorandum for the purpose of establishing that the defendant in these proceedings has in this memorandum claimed to have held various shareholding in the lands in respect of which he denies involvement at paragraph 100 102 of his affidavit In particular in page one of the memorandum he states that he undertook to secure 100 of the finance of the acquisition of the 55 acres In page three he recalls that Southfield Limited an Isle of Man company had been formed to purchase the land and the meeting discussed the beneficial shareholdings including 41 3 shareholding for the defendant At p 6 he records that at a meeting a revised beneficial shareholding arrangement was put in place whereby he would hold 25 through another As is apparent from the memorandum provided to the tribunal by Mr Goodman it is incomplete in that p 2 of the sequence of pages is missing and it is possible that further pages followed after p 7 I believe however that since this is a document which was generated by the defendant herein that he has or has had in his possession power or procurement the complete document and that such is discoverable under the terms of the orders for discovery made against him insofar as it evidences his claim to have beneficial ownership in lands held by land owning companies In an affidavit sworn by him in response on the 20th July the defendant agreed that he has collected a file relating to the action involving Mr Murphy from Noel Smyth and Partners He says however that he was never asked for nor was he given the Ellangrove file He agreed that Noel Smyth and Partners had subsequently sought fees from him representing 50 of the Ellangrove fees but says that he had no idea why they sought to charge him with 50 of fees in respect of services rendered years earlier by their firm to Mr Goodman s company He said that accordingly he subsequently simply ignored this correspondence and discarded their letters He said that he had no recollection of having been written to by Noel Smyth and Partners in relation to the Ellangrove matter or concerning recovery of monies expended by Mr Goodman He said that this matter had been pursued by Mr Smyth through meetings with him In paragraph 23 of the affidavit the defendant stated that C I had no beneficial interest in the companies which owned the lands at Coolamber in Lucan from 1987 onwards and although I accept that I always hoped that I would be paid a portion of the profits out of the ultimate development of the lands I do not believe that I ever at any stage had any beneficial interest in the underlying companies themselves D I accept that I did have some documentation in my possession concerning the lands at Coolamber but I believe these documents were disposed of by me as part of a general clean out of my offices in 1995 or thereabouts Among the documents that I believe it is likely I disposed of at that time are copies of the sales brochures exhibited by Ms Howard as MAH 45 and the memorandum exhibited as MAH 52 These are documents which I sent or gave to Mr Goodman I wrote through my solicitors to all the relevant parties concerned with these transactions including Mr Goodman Binchys and Noel Smyth and Partners seeking copies of any documents which they had and which could be of relevance to the plaintiff I believed that any documents which any of these parties had relating to these matters would be made available to the plaintiff either by being furnished directly to the plaintiff or furnished to your deponent for inclusion in my discovery There is no question so far as I am concerned of seeking to withhold any relevant documentation from the plaintiff 24 I refer to paragraph 3 of Ms Howard s supplemental affidavit where she has alleged that my averment at paragraphs 100 102 of my affidavit of July 17th last is untrue to the effect that I had no knowledge of Navona Limited nor did I have any dealings with Navona Limited I reject this claim by Ms Howard and repeat that while it may well apparently be the case that a company called Navona Limited was involved in this transaction as indeed her exhibit MAH 49 would appear to establish that it was Binchys who attended to all the legal formalities of the transaction and I had never heard of the involvement of Navona Limited until I saw it referred to in Ms Howard s affidavit of July 10th last The defendant went on to say that while his averments at paragraphs 100 102 of his affidavit of July 17th were relatively concise they should be seen in the context of a lengthy affidavit required to be prepared and delivered within a very short period under the stricture that time was to be of the essence and in the context of having to reply to an extremely detailed affidavit from Ms Howard running to 63 pages and accompanied by several hundred pages of exhibits The defendant went on to say that while he accepted that his understanding in December 2000 of his obligations as to discovery and giving evidence to the tribunal were incorrect he was now endeavouring to comply fully with the orders of the court He went on In particular I should add that while I concede that on days 223 and 224 of the tribunal sittings that I was not fully forthcoming with regard to the Coolamber Lands that I had genuinely not understood at the time that issues related to that transaction and the involvement of Advanced Protein Limited could have fallen within the ambit of matters with regard to which I was required then to inform the tribunal I now understand that the answers that I gave on days 223 and 224 in relation to these matters were unhelpful to the plaintiff and I deeply regret the inconvenience caused to him as a result That is the first matter in respect of which it is alleged on behalf of the plaintiff and was so found by the High Court that there has been significant failure by the defendant to comply with his discovery obligations b Bank Account in Liechtensteinische Landesbank Vaduz Liechtenstein The defendant has given evidence to the tribunal that he was engaged in some business ventures in the Czech Republic One of the companies with which he was associated in the course of those projects was a Jersey company Longwater Investments Limited hereafter called Longwater He also said that when he had a lot of bank debts in the mid 1990 s Longwater had advanced two loans to him of approximately 300 000 each guaranteed against his assets in Ireland and in the Czech Republic for the purpose of defraying debts then due by him to banks in this State It appears that the amount of the indebtedness of the defendant to banks in Ireland was in the sum of approximately 995 000 his main creditor being the ACC Bank which had a charge in respect of debts of approximately 640 000 on 23 acres of land adjacent to the 5 acres upon which the defendants home is built Those 23 acres were sold at auction on 25th July 1995 for a sum of 410 000 which sum exclusive of solicitors and auctioneers fees was paid to the ACC Bank in full and final settlement of the debts owed to it by the defendant It also appears that the other Irish banks who were creditors of the defendant agreed to accept 153 000 in full and final settlement of those debts It would appear to follow that of the sum of approximately 600 000 borrowed by the defendant from Longwater 153 000 at most was used in discharge of the indebtedness of the defendant to the Irish banks As to these Longwater loans the defendant gave evidence that these were drawn down as required from a bank account in the above bank hereafter the Landesbank This he said had been opened by Longwater and payments were made out of it at the direction of one David Morgan now deceased or his son Nicholas Morgan a lawyer in Jersey when the defendant required to defray a bank debt in Ireland The only documentation in relation to such a payment was however a letter from the defendant to National Irish Bank Naas Co Kildare dated 30th January 1997 in which it was stated I have signed the necessary documents this afternoon to transfer 15 897 00 to my current account It may take 3 or 5 days to go through the international section the above mentioned funds should be with you Wednesday Thursday next week at the latest Emphasis supplied It transpired that there were in fact eight not one accounts in the Landesbank These are identified in the relevant affidavit of discovery by reference to the account number and type of account the name of the holder of the account is not identified At the date of the swearing of the affidavit of 10th July by Ms Howard the only contemporaneous documentation produced by the defendant in respect of the Landesbank were a Copy bank statements and vouchers relating to the eight numbered bank accounts on various dates between 17th August 1995 and 29th October 1999 and b Two copy loan agreements c Recent correspondence between the defendant s solicitors and Mr Morgan It also appears that the opening balance on the first of these accounts was a sum of 351 064 on 14th September 1995 from which 160 000 appeared to have been transferred to the National Irish Bank Naas in October 1995 It appears that a total of approximately 604 000 was transferred from the Landesbank accounts to Irish accounts of the defendant The accounts continued to receive monies from an unidentified source up to their closure in 1999 and to be the source of funding of the defendant s Irish bank accounts until that year There were three lodgments to the accounts of 351 251 on the 14th September 1995 333 325 on the 23rd October 1998 and US 30 000 on the 9th April 1998 In his replying affidavit the defendant said that he had gone to considerable lengths to obtain these statements from the Landesbank these had been delivered by an entity called the CI Law Trust Group to him on 21st March 2001 and his solicitors then wrote to that body on the 26th March requesting confirmation that the accounts furnished were the entirety of the accounts held by that bank in relation to him He also said that the statements furnished by the Landesbank would not recite the account holder s name or address but would simply refer to a code He said that his solicitors had received no response to the request made on 26th March 2001 The defendant also said that the arrangement for drawing down the funds from these accounts was for him to contact Longwater and the bank by telephone he was then required to identify the account number his passport number and the password for the account Lucan The defendant also gave evidence in relation to these matters to the tribunal and said that the person he dealt with at the bank was a Dr Kieber and that his instructions to that person were always by telephone When he was referred to the letter to the manager of the National Irish Bank in Naas he accepted that there had been written communications with the Landesbank and a letter was signed by him authorising the release to the tribunal of all documents relating to the accounts The defendant was ordered not to communicate with Dr Kieber until January 16th 2001 No response was received by that date and it is not in dispute that thereafter the defendant was free to get in touch with Dr Kieber and endeavour to procure for the tribunal the documentation relating to the movements in the accounts At the hearing in the High Court a letter dated April 30th was produced from the defendant to Dr Kieber requesting the documentation in question This letter had been written after the time for making discovery as originally fixed had expired This court was informed during the course of the appeal that subsequent to the decision of the High Court a further affidavit of discovery had been filed by the defendant In addition to more recent bank statements from the Landesbank faxes in relation to the accounts were produced which had not been discovered at any earlier stage In the course of his judgment the trial judge said that the defendant s discovery was deficient inter alia Because the defendant failed or neglected to apply to those who may have had necessary documents which were not in his possession or to do so timeously or to advance evidence of a persistence or to follow up on a request for information At a later point in his judgment he said It is clear from the documentation that some matters were not promptly attended to e g the defendant s construction of the restraint on communication with Dr Kieber by the tribunal on the occasion of the defendant s attendance on day 223 i e 14th December 2000 This was expressly lifted on 16th January 2001 the day after the order of 15th January 2001 The only exhibited written communication directly to Dr Kieber is dated 30th April 2001 i e three and an half months after the letter of release from the tribunal one month after the expiry of the period for completion in the order of 15th January 2001 and four weeks after the court had signalled on 2nd April 2001 that a deadline of 15th May was to be regarded as a time of the essence provision c Compliance with Form 10 Appendix C of the Rules of the Superior Courts In his judgment the learned High Court judge identified as a further illustration of the deficiency in the defendant s discovery The failure to follow the very express provision of the court order to adhere to the form of affidavit prescribed by Form 10 Appendix C of the Rules of the Superior Courts The material parts of Form 10 the form prescribed by Order 31 Rule 13 for an affidavit as to documents is as follows I deponent make oath and say as follows 4 I have had but have not now in my power or possession the documents relating to the matters in question in this suit set forth in the second schedule hereto 5 The last mentioned documents were last in my possession or power on state when 6 That here state what has become of the last mentioned documents and in whose possession they now are 7 According to the best of my knowledge information and belief I have not now and never had in my possession custody or power or in the possession or power of my solicitor or agent or in the possession custody or power of any other persons or person on my behalf any deed account book of account voucher receipt letter memorandum paper or writing or any copy of or extract from any such document or any other document whatsoever relating to the matters in question in this suit or any of them or wherein any entry has been made relative to such matters or any of them other than and except the documents set forth in the said first and second schedules hereto In his affidavit of discovery sworn on the 11th May 2001 the defendant deposed as follows in paragraph 3 I say that I have had but have not now in my possession or power or procurement the documents relating to the matters raised to date in this inquiry as set forth in the second schedule hereto and that the reasons that same are no longer in my possession or power are as set forth in the said second schedule The second schedule to the affidavit reads as follows Various records processed cheques photocopies of documents invoices bills correspondence and similar documentation that may have been in your deponents possession over those years 1973 to date but which has been lost destroyed stolen burnt or thrown away over those years but which had not been found or returned and cannot be recalled for the purposes of this affidavit and also documentation that may be in the possession of third parties and which has been sought by your deponent and which has not been procured or returned despite request as already set out and referred to in the correspondences previously discovered herein At para 138 of the affidavit sworn by her on the 10th July Ms Howard said Had the defendant complied with the provision directing that discovery be made in accordance with the Rules of the Superior Courts and in particular Form 10 Appendix C thereof the plaintiff would have a proper second schedule listing and properly identifying all documents which had been but were no longer at the time of swearing in the possession power or procurement of the defendant Neither the affidavit then thought to be the final affidavit sworn by the defendant on 11th May 2001 nor the further affidavit as to documents sworn pursuant to the order of 3rd July 2001 addresses this deficiency As already noted this was one of the three matters in respect of which the learned High Court judge made a specific finding that there had been a non compliance by the defendant with the order of the 15th January 2001 The High Court Judgment In the course of his judgment the trial judge said that in dealing with the matter at earlier stages the court had sought to balance fairly the urgency attaching to the tribunal s investigations and the difficulties confronting the defendant in supplying information and documentation to the plaintiff He said that regard had been had to the period of time and the volume of documentation involved and the fact that matters which might be of importance to the plaintiff might not have so registered with the defendant However while he accepted that some omissions in the documentation to date could be regarded as peripheral he considered that Other omissions do not fall within that category and furthermore I find as a fact on the documents placed before the court for consideration betoken of want of frankness and completeness He then went on to refer to the three matters already discussed in detail in this judgment Towards the end of the judgment the trial judge said Credit must be given to the defendant for what he has done since 15th January 2001 It was a task that could and should have been obvious to him three years ago would have to be faced sooner or later It is irrelevant if it was neither because court orders within this closing legal year have made clear his legal obligations In this judgment there is very deliberately no detailed express findings on many of the issues raised in the affidavits and submissions made to the court I have taken a conspectus view of the evidence sufficient to enable me to conclude as I have on the question of compliance with the order of 15th January 2001 I leave to the tribunal the task of dealing with the material as it now exists supplemented by the further affidavit of discovery I hereby direct This may entail calling the defendant on more that one occasion If he has to be recalled even more than once so be it Having then discussed the legal principles applicable as to contempt of court and the arguments advanced on behalf of the plaintiff and the defendant the trial judge said that there had been only partial compliance with the order of the 15th January and that he took a very serious view of that fact against the background of this litigation He was also of the view that it would be unfair to impose as a term of imprisonment the whole of the balance of the sentence because there was still a period during which it was possible that compliance might be complete and the defendant had already undertaken considerable work in an attempt at compliance The trial judge said that given that the non compliance had been of a serious character several weeks imprisonment should be the result but that he was mindful that what might be regarded as a draconian power ought not to be exercised too prodigally or in a manner which was inconsistent with the requirements of the Constitution In those circumstances as already noted he decided that the defendant should serve a further week s imprisonment and made the other orders to which I have referred Submissions on behalf of the Parties On behalf of the defendant Mr John Trainor SC submitted that although the High Court judge had founded his judgment on the premise that there had been serious deficiencies in the discovery to date and that the documents placed before the court evidenced a want of frankness and completeness he had expressly refrained from giving any particulars save in the three instances already referred to in this judgment He said that the trial judge by adopting what he described in the judgment as a conspectus view of the evidence had arrived at conclusions which were seriously flawed Either he had arrived at conclusions adverse to the defendant in relation to matters other than the three specified matters or he had not If he had arrived at such adverse conclusions Mr Trainor urged then justice to the defendant required that he specify the reasons for those conclusions That was of particular significance given the detailed response by the defendant to all of the matters raised in Ms Howard s affidavit of the 10th July If he had not arrived at any finding adverse to the defendant in respect of all the remaining matters then his judgment was also flawed in that he did not make an express finding to that effect and take it into account when considering what order should now be made and in particular whether the defendant should suffer the serious sanction of imprisonment As to the first matter in respect of which the trial judge had made an express finding i e the Coolamber lands Mr Trainor submitted that the sworn evidence of the defendant to the effect that he neither sought nor received the missing Ellangrove file from Noel Smyth Partners was not contested Accordingly the only deficiency identified in respect of the defendants discovery was the absence of a specific listing in the second schedule of the sales brochure which he had given to Mr Goodman the fax which he had sent to Mr Goodman and the four letters from Noel Smyth and Partners concerning the Ellangrove file which he had discarded It was arguable whether the proper completion of the second schedule required these documents to be specifically listed if it did it was the only failure to comply with the order of January 16th 2001 which had been established As to the Landesbank accounts Mr Trainor submitted that the trial judge appeared to have overlooked the fact that documentation concerning the Landesbank account had already been procured from the CI Law Group Limited and discovered prior to 30th March 2001 Moreover the letter to Dr Kieber was sent before the time for discovery had expired on May 15th As to the claim that the second schedule was not in accordance with Form 10 in Appendix C to the Rules Mr Trainor submitted that it was customary for affidavits to be sworn in the form adopted by the appellant in this case It was accepted that in accordance with the decision of this court in Bula Limited In Receivership v Crowley 1991 1 I R 220 where a claim of privilege was being made in respect of documents those documents had to be individually listed in the first schedule That did not apply however where as here a deponent was giving evidence as to documents no longer in his possession power or procurement As to the sentence imposed by the High Court Mr Trainor submitted that if contrary to his submissions any form of contempt had taken place it was civil contempt and that the object of this branch of the law was not punitive but coercive It followed that the period of committal should be until such time as the order was complied with or until it was waived by the party for whose benefit it was made citing the decision of this court in Keegan v de Burca 1973 IR 223 and of Finlay P as he then was in The State Commins v McCrann 1977 IR 78 Mr Trainor further submitted that the power to order committal for civil contempt was one to be exercised with very great care The court would not order committal where its contempt was of a minor or technical nature citing the English decisions in Marshall v Marshall 1966 110 SOL JO 112 Smyth v Smyth 1988 1 FLR 179 at 181 Where the order of committal was suspended and the contemnor was subsequently in breach of the terms of the suspension the court had a discretion whether to order the imprisonment of the contemnor citing Re W B and infant 1969 1 All E R 594 Mr Trainor said that imprisonment should always be regarded as a sanction of last resort in cases of contempt citing Arlidge Eady and Smyth on Contempt second edition 1999 at para 14 3 In cases such as the present it should only be used where the person in default had clearly demonstrated that he had no intention of complying with the order Moreover where as here the party was unable to obtain access to the documents through no fault of his own the penal power should not be exercised see Wilson v Raffalovich 1881 7 QBD 553 Mr Trainor further submitted that the course adopted by the learned High Court judge did not adequately distinguish between the default that had unarguably occurred prior to the order of January 15th and any default which might have occurred thereafter It was unjust that the appellant should suffer precisely the same term of imprisonment in respect of what in comparison with the admitted default prior to January 15th was not a default of a major nature That of itself rendered the sanction imposed excessive and disproportionate On behalf of the plaintiff Mr Frank Clarke SC submitted that the order made by the plaintiff now being appealed from should be seen in the context of the earlier history of the matter the original orders made by the tribunal in April 1999 the orders of the High Court of June 8th 2000 and 24th October 2000 requiring compliance by the defendant with the orders of the plaintiff unsuccessfully appealed to this court and the contempt committed by the appellant of those orders described by the learned High Court judge as one committed in a deliberate and most serious manner That finding by the High Court had not been the subject of any appeal to this court Mr Clarke said that following the delivery and analysis of the final affidavit of discovery furnished by the defendant in purported compliance with the order of 15th January 2001 the plaintiff had come to the conclusion that notwithstanding the production by the defendant of extensive documentation he had failed to comply fully with the orders It was in consequence of that conclusion having been communicated to the High Court that the affidavits on behalf of the plaintiff setting out the alleged deficiencies and affidavits in response were filed Mr Clarke submitted that while the submissions on behalf of the appellant laid stress on the fact that the trial judge had adopted what he described as a conspectus view the fact remained that three specific examples of deficiencies in the discovery had been identified in the judgment Of these that relating to the lands at Coolamber was of considerable importance in the context of the inquiries undertaken by the plaintiff in compliance with the resolution of the Houses of the Oireachtas Mr Clarke submitted that the account given by the appellant in his affidavit of 17th July 2001 of his involvement in the purchase and development of the Coolamber Lands was less that complete Indeed the appellant himself accepted that in giving evidence to the tribunal in relation to this matter he was not fully forthcoming with regard to these lands In the context of the present appeal the critical matter was that the appellant did have at one stage documents relating to those transactions including the important note prepared by him for Mr Goodman in which his involvement in the transaction was recorded and brochures relating to the property documents which he said had been disposed of when his offices were being cleaned out in 1995 or thereabouts Mr Clarke submitted that having regard to the fact that this information was only furnished by the defendant after the plaintiff had placed before the court evidence indicating that the explanation originally given of his role was less that complete it was unarguable that there had been a serious failure to comply with his discovery obligations Even assuming that the appellant was not obliged to list the individual items concerned in the second schedule in the light of the construction adopted on his behalf as to the relevant requirements in the Rules of the Superior Courts he was at the very least under an obligation to identify those categories of documents of which he was once possessed but no longer had in relation to this matter This he had failed to do and that of itself fully justified the High Court in reactivating in part the sentence suspended in January 2001 As to the second matter the Landesbank accounts Mr Clarke submitted that the Landesbank accounts were of considerable significance in the context of the plaintiff s investigations and the defendant was clearly obliged to make a serious and expeditious attempt to obtain all the relevant documentation in relation to these accounts In the event Mr Clarke submitted he made no attempt to do so until after the time for making discovery had expired when he wrote the letter of April 30th to Dr Kieber As the court had been informed subsequent to the decision of the High Court faxes to Dr Kieber had been produced by the defendant but there appeared to be no explanation as to why these had not been produced before As to the third deficiency identified by the trial judge the failure to comply with the requirements of Appendix C of the Rules of the Superior Courts Mr Clarke submitted that the failure to complete the second schedule in accordance with the requirements of the rules would have unquestionably deprived the plaintiff of important information which he required for the purposes of his investigation had he not obtained it from other sources This he said had been strikingly demonstrated in the case of the Coolamber lands Mr Clarke said that the defendant could have been under no illusion as to what was required of him in fact in swearing a supplemental affidavit of discovery on foot of the High Court order of October 24th he had provided a schedule in the appropriate form which sought to identify at least some of the categories of documents which he once had but which no longer were in his possession By contrast the second schedule to the affidavit of discovery now under consideration confined itself to a general reference to documents that could not now be produced without identifying the documents and stating when they were in the deponent s possession and what had become of them Mr Clarke submitted that it was an essential feature of the discovery process that the person making discovery does not confine his discovery to documents actually in his possession the party for whose benefit the order is made must be in a position to obtain production of documents no longer in the possession of the person making discovery from the parties who now have them He referred in this connection to the statement of the law in Bray on Discovery 1885 As to the knowledge on the part of the defendant as to his obligations in this regard Mr Clarke said that this had been one of the specific issues raised before the High Court on the contempt application in January 2001 in her affidavit grounding that application Ms Howard had referred to the fact that the defendant had not complied with his obligation to furnish a proper second schedule As to the sentence imposed by the learned High Court judge Mr Clarke said that the attitude on behalf of the plaintiff in the High Court had been that they having drawn the attention of the court to the areas in which the defendant had failed to comply with the orders of the court it was a matter for the court to determine what the appropriate sentence was He submitted that this court should not interfere with the sentence imposed by the High Court judge for the established non compliance with his earlier order unless there had been some

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  • the purchase of the Coolamber lands The financing mechanism envisaged appears to have been that the lands would be bought by a company wholly owned by Mr Goodman which would enable the company to obtain a loan of 350 000 for their purchase and that the appellant would be entitled to share in any profit made on resale and after the bank borrowings were discharged It is apparently that feature of the deal that has enabled the appellant to justify his denial of any beneficial interest in the lands Ms Howard s affidavit of 18th July also refers to information obtained from Binchys Solicitors The lands it seems were purchased pursuant to an agreement dated 30th July 1987 by Navona Limited Binchys have produced a copy of a declaration of trust by Navona Limited in respect of the lands in favour of Southfield Limited the company that was to take the loan of 350 000 and over which Mr Goodman was according to the banking arrangements to have and maintain 100 control In fact he has said that he was provided with no shares in the company He has also said that the interest in the lands was later sold to an Isle of Man Company Vico Property Limited without reference to Mr Goodman and without discharging the interest payments he had made on behalf of Southfield Limited Most tellingly of all perhaps Ms Howard exhibited an incomplete copy of a memorandum recounting the history of the land transaction This according to Mr Goodman s evidence to the Tribunal was prepared by the appellant at Mr Goodman s request after the latter had been seeking to recover the interests payments from him It was faxed to Mr Goodman on 12th December 1994 It is unnecessary to discuss the detail of this document especially as much of it has been disputed by Mr Goodman Ms Howard produced it as she said for the purpose of establishing that the appellant has in this memorandum claimed to have held various shareholdings in the lands in respect of which he denies involvement The document appears to contain an account of a number of meetings with a number of persons particularly Mr Jim Kennedy and Mr John Caldwell solicitor of Binchys If true the document shows that the appellant agreed with others to bid for the Coolamber lands agreed to secure 100 finance and later discussed the financing with Mr Britton discussed the purchase of the lands by Southfield Ltd described as and Isle of Man company agreed shareholdings in apparently that company of which he was to have 41 3 later revised to 25 had meetings to discuss the technical aspects of the land discussed the formation of Vino Ltd and the sale of the land which left a surplus in the region of 1 5 million Prompted by the material disclosed in Ms Howard s affidavit the appellant gave a very different version of the matter in his own affidavit of 20th July

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  • produced or to allow him to show them to the Judge He also states that he had a witness in Court who could give evidence concerning the exhibits but which he did not call because of the learned District Judge s ruling refusing production of the exhibits The Applicant also avers in his Affidavit that he was denied an opportunity to cross examine the garda witness on the basis of what he says was a conflict between the version of the garda s witness statement in the book of evidence and the original of that statement Decision The provisions of the Criminal Procedure Act 1967 concerning preliminary examination of indictable offences in the District Court were applicable to the proceedings against the Applicant before the District Court Limerick The Criminal Justice Act 1999 not yet being in force Section 7 1 of that Act requires the Judge of District Court to consider the documents and exhibits any deposition or statement taken in accordance with this section and any submissions that may be made by or on behalf of the prosecutor or the accused Subsection 2 of Section 7 provides that The prosecutor and the Accused shall each be entitled to give evidence on sworn deposition and also to require the attendance before the justice of any person whether included in the supplied list of witness or not and to examine him by way of sworn deposition Subsection 3 goes onto provide A witness under Subsection 2 may be cross examined and re examined in his evidence His deposition shall be taken down in writing read over to him and signed by him and by the Justice The task of the District Judge is to determine whether the Accused person should be sent forward for trial Section 8 1 provides that if the judge of the District Court is of the opinion that there is sufficient case to put the Accused on trial for the offence with which he has been charged he shall send him forward for trial Before arriving at an opinion as to whether there is sufficient case to send an Accused forward for trial it is clearly the duty of the Judge of the District Court to consider the exhibits on which the prosecution relies It is not necessary that in every case that such exhibits be produced in Court if they are sufficiently described and referred to in the book of evidence However where an Accused seeks to cross examine a witness or call a witness in accordance with the provisions of the Act and for that purpose the production of the exhibits is material or relevant to such evidence he is entitled to have them produced for consideration by the District Judge The same would apply if the production of an exhibit is necessary for the purpose of enabling an Accused to make submissions as to why the District Judge should consider that there is not a sufficient case for returning him to trial In

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  • asleep he further could not be said to have an intention to drive the vehicle Mr Horrigan further submitted that in order to sustain this conviction it must be proven that the Defendant had an intention to drive his car Since the Defendant was asleep it was submitted that he could have no such intention and that what he intended to do before he awoke was immaterial 4 In reply Ms Noreen Landers Solicitor who appeared on behalf of the Prosecutor submitted that Mr Byrne was found in his car with the keys in the ignition turned to the ready position She further submitted that he had not yielded up charge of a vehicle to any other person and that he remained in charge of the vehicle and that on Mr Byrne s own evidence his falling asleep was an unconscious act which he had not intended and that his act of falling asleep did not amount to Mr Byrne forming an intention not to drive At the conclusion of the Case Stated the learned Circuit Court Judge stated that having heard submissions of the parties he was of the opinion that the statute only allowed me to consider the intention of the Defendant only as and from the time garda found the Defendant in the car He then went on to set out the questions of law in respect of which the case was stated 6 The questions of law for the Supreme Court are as follows i Whether on the facts set out above I am entitled to hold that the Defendant was in charge of a mechanically propelled vehicle in a public place with intent to drive ii Can I consider the intentions of the Defendant before he went to sleep as referred to in the Statement of Facts as set out at Paragraph 3 Arguments of the Parties Counsel on behalf of the D P P submitted that the first question which arose was whether the Defendant could be found to be in charge of the motor car in question and from what point in time he may be considered to have been in charge of the vehicle The expression in charge is not defined in the Act and whether a person is in charge of a motor car at a particular time is a question of fact to be determined from the circumstances of the individual case Counsel submitted that in this case having regard to the facts as found and set out in the Case stated the evidence before the Circuit Court was that the Defendant having been found by the garda member in the driver s seat with the keys in the ignition had obviously entered the car earlier and on his own admission involuntarily fallen asleep He submitted that the Defendant must or may be found to have been in charge of the motor car from the time he got into the car and that he remained in charge of the car up and including the time when the garda member arrived and woke him up The fact that he had fallen asleep in the meantime did not alter the fact that he was a person in charge of the motor car within the meaning of Section 50 of the Act as amended In support of this submission Counsel relied on an English decision in D P P v Watkins 1989 R T R 324 at 321 in which it was held If the Defendant is the owner or lawful possessor of the vehicle or has recently driven it he will have been in charge of it and the question for the Court will be whether he is still in charge or whether he has relinquished his charge Usually such a Defendant will be prima facie in charge unless he has put the vehicle in someone else s charge However he would not be so if in all the circumstances he has ceased to be in actual control and there is no realistic possibility of his resuming actual control while unfit e g If he is at home in bed on the night or if he is a great distance from the car or if it is taken by another Counsel submitted that in this case it may and ought to be properly inferred that the Defendant was the lawful possessor of the vehicle and or had recently driven it This is supported by the fact that the lights were on in the car when it was observed by the Prosecuting Garda The Defendant was in the driver s seat and the keys were in the ignition and had been turned two clicks towards full ignition There was no basis on which it could be inferred that he had relinquished possession to any other person In conclusion it was submitted that in these circumstances the learned Circuit Judge ought to conclude that the Defendant was in charge of the vehicle at the time the prosecuting garda came upon the scene and found him in the motor car Secondly Counsel for the D P P addressed the question as to whether the Defendant could be found to be in charge of the car with intent to drive First of all Counsel submitted once it has been found that a person is in charge of a motor car there is a statutory presumption that he or she has an intent to drive it for the purposes of the section Section 50 8 of the Road Traffic Act 1961 as inserted by Section 11 of the Road Traffic Act 1994 provides 8 In a prosecution for an offence under this section it shall be presumed that the Defendant intended to drive or attempt to drive the vehicle concerned until he shows the contrary Subsection 8 refers to a prosecution pursuant to Section 50 for an offence of being in charge with intent to drive while under the influence of alcohol or the offence of attempting to drive while under the influence of alcohol An interpretation of the subsection in the context of the Section as a whole means that the statutory presumption arises and only arises when it has been established that the person being tried for the offence was in charge of the vehicle or attempting to drive the vehicle It was submitted that the onus is on the Defendant to rebut the presumption In the circumstances of the case it was open to the learned Circuit Court Judge to hold that the statutory presumption had not been rebutted It was submitted that intent to drive relates to an intent as to future conduct It was open to the Circuit Court to conclude that when the Defendant was in the motor car prior to involuntarily falling asleep he had an intention to drive The fact that he had fallen asleep before giving effect to that intention did not mean that intention lapsed or ceased to exist At all relevant times the Defendant had remained in charge of the vehicle and although he had said in evidence that at the time when he was woken by the garda he had no intention of driving the car it was open to the learned Circuit Court Judge to reject that evidence and conclude that he was at that point in charge of the vehicle when an intent to drive within the meaning of the section Counsel for the Defendant submitted that the offence alleged must be established to have been committed at a particular point of time This is evidenced by the requirement of the subsection that a person is guilty where the concentration of alcohol exceeds the permitted limit within three hours after so being in charge Counsel submitted that in this case the only point in time when the offence could be alleged to have been committed is at the point when the investigating garda came upon the Defendant and found him asleep in the car If no particular point in time can be identified at which the Defendants could be said to be in charge it would be impossible to determine the issue whether or not the concentration of alcohol in the Defendant s urine exceeded the permitted level within a period of three hours Although Section 50 8 of the 1961 Act as inserted by Section 11 of the 1994 Act creates a presumption to the effect that a Defendant is presumed to have intended to drive this presumption is defeated by the fact that the Defendant was asleep Since he was asleep the Defendant cannot have had an intention to drive The two questions posed in the case stated should be answered firstly by holding that the learned Circuit Judge was not entitled to conclude that the Defendant was in charge of the vehicle in a public place with intent to drive because the evidence does not indicate any such intent and secondly the learned Circuit Judge should not consider the intentions of the Defendant before he went to asleep since no point in time has been established at which those intentions are to be considered Furthermore it was submitted the intention to drive must be an immediate one The First Question There are two elements in the first question Firstly whether on the facts the learned Circuit Judge is entitled to hold that the Defendant was in charge of the vehicle and secondly if so is he entitled to hold that there was an intent to drive These issues fall to be considered in the context of the point in time in respect of which it may be open to the Circuit Judge to hold that the offence alleged was committed In the terms of Section 50 2 of the Act the offence is committed when a person who is in charge of a vehicle with intent to drive has in his body an impermissible quantity of alcohol within three hours after so being in charge Self evidently therefore if the court of trial is satisfied that a Defendant was in charge of a vehicle with intent to drive at any point in time during that three hour period then it must convict for the offence For the sake of convenience I use the term satisfied as shorthand for satisfied beyond reasonable doubt In practical terms on the facts of this case including the undisputed fact that the Defendant was found to have an impermissible level of alcohol in his body within three hours of the garda member finding him in the car it means that the learned Circuit judge must be satisfied that the Defendant was in charge with intent to drive at some point during the period from when the garda member observed the Defendant in the car and arrested him In charge of a vehicle Counsel for the Defendant understandably did not really take issue with the submission on behalf of the D P P that the Defendant on the facts of this case may be considered at all material times to have been in charge of the vehicle He focussed his submissions on the contention that since the Defendant was asleep when found by the garda there could have been no intent to drive However since the first question as posed by the learned High Court Judge raises the question of whether the Defendant may be found to have been in charge of the vehicle and having regard to the facts of the case as a whole I think I should make some limited reference to this point The notion of in charge of a vehicle is a very general one and will fall to be applied in a wide variety of circumstances or combination of circumstances There is no statutory definition The words of the section must be given their ordinary and natural meaning and the term in charge of a vehicle must be applied in a common sense way Interestingly there are no authorities on the interpretation of this phrase which would seem to indicate that the courts which have to apply this section in particular the District Court have not found any substantial difficulty in applying its terms Nor is there a reported decision on being in charge of a carriage while drunk contrary to the Licensing Act 1872 That said it must also be said that the application of the section in question to a person found asleep in the motor vehicle was raised in a previous Case Stated but which for various reasons was not proceeded with to final decision Evidently a great deal depends on the facts of the particular case and for that reason I do not think it wise nor indeed possible to prescribe a set of criteria which would provide an answer in all cases for the question Was the Defendant in charge of the motor vehicle The English authorities which relate to this issue are at best of a limited value since the relevant English statute has quite a different structure to that of the Road Traffic Act 1961 as amended although the particular citation relied upon by the D P P from D P P v Watkins cited above is helpful In that case it was also acknowledged that no hard and fast all embracing test can be propounded as to the meaning of the phrase in charge In the circumstances I think it is appropriate to confine myself to making just a few observations on the general notion of in charge of a vehicle and then deal with the particular facts of the case as set out in the case stated Being in charge of a vehicle has connotations of having possession or control or being in a position to exercise possession or control Since the offence is one of being in charge with intent to drive there must be some proximity or close connection between the circumstances in which a Defendant is found to be in charge and the vehicle itself A person does not have to be in a vehicle in order to be in charge of it On the other hand if he was in his home watching television this would normally be too remote to regard such a person on any common sense view in charge of a motor vehicle parked outside within the meaning of the section I turn to consider the factual circumstances of this case Where a person is found alone in a car occupying the drivers seat with the keys of the car in the ignition leaving aside for the moment the question of such a person being asleep it seems to me that prima facie he may be considered to be in charge of the motor car Of course I do not mean to say that all these ingredients are essential since in particular circumstances a person may be in charge even if he does not have the keys or if he is outside the motor car but in the circumstances which I have indicated prima facie that would be the case In this case all those circumstances were present and more The car was parked on the hard shoulder of the Navan Road with its lights on and the ignition key was turned two clicks towards the ignition The Defendant was alone in the car His evidence was that he had fallen asleep involuntarily and was asleep when found by the garda On those facts the Plaintiff was clearly in possession of the car at the time when the garda member found him I take the view that he was in charge of it within the meaning of the section If a driver on a long journey pulls into a lay by and takes a nap before continuing his journey I not think that he can be considered to have ceased to being in charge of the car during the period when he was asleep The fact that in this case the Defendant fell asleep involuntarily does not to my mind alter the position Nor is there any evidence in the words of D P P v Watkins as cited above that having entered the car he had relinquished his charge On the facts set out in the case stated the Circuit Judge is entitled to hold that the Defendant was in charge of the motor car when Garda Kinneen arrived on the scene With intent to drive and the second question As the learned Circuit Judge implicitly acknowledges in the Case Stated whether there was an intent to drive on the part of a Defendant who was in charge of a motor vehicle is something which has to be determined having regard to the particular facts of the case With that in mind I think it would be preferable at this stage to consider the second question posed by the Circuit Judge as to whether he can consider the intentions of the Defendant before he went to sleep as described in the case stated To state the obvious the Defendant was in the car before he fell asleep the lights of the car were turned on and the keys placed in the ignition at some point There may be certain inferences which can be drawn as to the Defendant s intentions before he fell asleep which is entirely a matter for the Circuit Court Judge and the question is whether he can consider them In my view the answer to the second question is clearly yes The circumstances pertaining to the presence of the Defendant in the car prior to falling asleep and his intentions at that time are directly connected and material to the offence with which he is charged and in particular the issue as to whether he had at a relevant time an intent to drive It is a matter for the Circuit Judge to determine what those circumstances and intentions were These matters which occurred before the Defendant fell asleep

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  • application for judicial review had not been made promptly or in accordance with Order 84 Rule 21 1 of the Rules of the Superior Courts Having considered that ground of opposition he concluded that he should not decide the issues raised in the judicial proceedings solely by reference to the time which has elapsed before those proceedings were initiated On this appeal his finding to that effect has not been challenged by the coroner or the notice parties The High Court judge went on to consider whether the actions of the coroner were in breach of s 30 of the 1962 Act which provides that questions of civil or criminal liability are not to be considered or investigated at an inquest and that inquests are to be confined to ascertaining the identity of the deceased person and how when and where the death occurred He referred to the decision of this court in Greene v McLoughlin Unreported Judgment delivered 26th January 1995 as to how this section should be construed and to a decision of the English Court of Appeal in R v North Humberside Coroner Ex Parte Jamieson 1995 QB 1 as to the interpretation of the equivalent English legislation He summed up his conclusions as follows I think that it would be unwise to set down any hard and fast rule but in each case the coroner should be investigating what is the real and actual cause of the death This death it appears to me was caused by pneumonia Any conceivable link with the 3 in 1 objection is too nebulous and indirect to make it appropriate for an investigation by the coroner The very fact that the coroner ended up having to commission an independent report is somewhat indicative of the impracticality of such an inquest and I do not believe that such an inquest was intended by the wording of s 30 of the 1962 Act He went on to refer to s 26 of the 1962 Act which he said appeared to restrict the right of the coroner to call additional witnesses and also said that it was in his view undesirable to permit an inquest before a jury to be adjourned for such a length of time for the purpose of getting fresh expert evidence The High Court judge further said that it seemed to him that the notice parties wanted the possible link with the 3 in 1 vaccine to be investigated for the purpose of pinning fault but that he was also satisfied that the coroner was genuinely investigating whether there could have been a link or not independently of any question of fault He was however satisfied that the board were entitled to a declaration that the conduct of the inquest insofar as it purported to examine or determine that issue was ultra vires the 1962 Act Submissions of the Parties On behalf of the coroner Mr Gerard Hogan SC and Mr Michael Conlon submitted that the express prohibition in s 30 of the 1962 Act on the consideration or investigation of questions of civil and criminal liability was clearly intended to ensure that irrelevant issues would not be raised and examined which were outside the proper scope of the inquest it did not mean that the investigation of facts which might have a bearing on civil liability was prohibited That this was the rationale of s 30 and of the corresponding legislation in England was made clear by the report of a Departmental Committee on Coroners in the United Kingdom Cmnd 5070 1936 and this had also been made clear in the decision of the English Court of Appeal in R v North Humberside Coroner Ex Parte Jamieson They further submitted that the word how in s 30 should not be construed as confining the inquiry to the proximal cause of death this would have the effect of confining the role of the coroner to merely admitting the pathologist s post mortem report at the inquest They submitted that insofar as a dictum of Blayney J in Greene v McLoughlin suggested that the question as to how death occurred in any particular case was a medical question for a doctor to be answered if necessary by performing a post mortem examination it was unduly restrictive and should not be followed They urged that such an interpretation failed adequately to take into account the purpose of the coronial system as explained by this court in Farrell v Attorney Genera l 1998 1 IR 202 On behalf of the notice parties Mr Paul Gardiner SC submitted that if the view taken by the learned High Court judge was correct the same objection would have to be raised to an inquiry by the coroner into whether the 3 in 1 injection had caused the death of the deceased where the death had occurred within a matter of days from the injection being administered That could not have been the intention of the Oireachtas in enacting s 30 1 of the 1962 Act He also referred to the finding of the High Court judge that the Board were afraid that a misguided jury could make a recommendation not warranted on the evidence which would be extremely damaging to the public confidence in the vaccine practices He submitted that this was an entirely erroneous approach to the issue in the present case the Oireachtas had entrusted the decision of these matters to juries and had empowered them to make general recommendations designed to prevent further fatalities On behalf of the board Mr Peter Finlay SC submitted that under our law an inquest was a fact finding inquiry conducted by a coroner with or without a jury intended to establish reliable answers to four important but limited factual questions He submitted that the language used in s 30 in defining the fourth question i e how the death occurred was wholly irreconcilable with an authority to the coroner to conduct the sort of wide ranging inquiry which he had undertaken in the present case citing the comments of Sir Thomas Bingham MR as he then was in R v N Humberside Coroner Ex Parte Jamieson Mr Finlay submitted that in the present case there was clear medical evidence that the cause of death was aspirational pneumonia There was no statutory authority for the course undertaken by the coroner of commissioning a report by an independent expert to determine whether that illness was the result of a particular condition which in turn had been brought about by the 3 in 1 vaccination such an inquiry as the report of Dr Butler amply demonstrated was necessarily lengthy and far reaching in its scope As such it was entirely outside the form of limited inquiry into the cause of death envisaged by the 1962 Act an inquiry which under the provisions of s 30 was expressly intended not to pre empt the far more wide ranging investigation of the cause of death which might be appropriate in civil proceedings of an adversarial nature Nor could the understandable concerns of the notice parties be any justification for converting an inquest into a form of public inquiry designed to provide definitive answers to the issues which the notice parties wish to explore Mr Finlay further submitted that the intention of the Oireachtas to confine the inquiry into the medical cause of death was further illustrated by the provisions of s 26 of the 1962 Act which expressly prohibited the coroner from compelling the attendance of a second registered medical practitioner save in the limited circumstances provided for in the section which clearly did not arise in this case The Applicable Law In my judgment in Farrell v Attorney General I cited with approval the following description by Lane LCJ in R v South London Coroner Ex Parte Thompson 1982 126 SJ 625 of the nature of an inquest It should not be forgotten that an inquest is a fact finding exercise and not a method of apportioning guilt The procedure and rules of evidence which are suitable for one are unsuitable for the other In an inquest it should never be forgotten that there are no parties there is no indictment there is no prosecution there is no defence there is no trial simply an attempt to establish facts It is an inquisitorial process a process of investigation quite unlike a criminal trial where the prosecutor accuses and the accused defends the judge holding the balance or the ring which ever metaphor one choose to use Again in that case I referred to the public policy underlying the requirement for the holding of an inquest as they were explained in England in the report of the Broderick Committee i e I To determine the medical cause of death II To allay rumours or suspicion III To draw attention to the existence of circumstances which if unremedied might lead to further deaths IV To advance medical knowledge V To preserve the legal interests of the deceased person s family heirs or other interested parties Ultimately however the issue for resolution in the High Court and again in this court is as to the proper construction to be given to the wording of s 30 of the 1962 Act i e Questions of civil or criminal liability shall not be considered or investigated at an inquest and accordingly every inquest shall be confined to ascertaining the identity of the person in relation to whose death the inquest is being held and how when and where the death occurred While this provision undoubtedly lays stress on the limited nature of the inquiry to be conducted at an inquest the prohibition on any adjudication as to criminal or civil liability should not be construed in a manner which would unduly inhibit the inquiry That would not be in accord with the public policy considerations relevant to the holding of an inquest to which I have referred It is clear that the inquest may properly investigate and consider the surrounding circumstances of the death whether or not the facts explored may in another forum ultimately be relevant to issues of civil or criminal liability The intention of the Oireachtas that the inquest should not simply take the form of a formal endorsement by the coroner or a jury of the pathologist s report on the post mortem is also made clear by s 31 which although prohibiting the inclusion in the verdict or any rider to it of any censure or exoneration of any person goes on to provide in s s 2 that notwithstanding anything contained in s s 1 of this section recommendations of a general character designed to prevent further fatalities may be appended to the verdict at any inquest Since it might appear at first reading that the decision of this court in Greene v McLoughlin supports a different construction it is necessary to examine that decision more closely The deceased was found by his mother in a toilet where he had gone to clean a rifle while she was preparing a meal She heard a noise and on entering the toilet found him lying against the wall bleeding from the forehead At the subsequent inquest the verdict of the jury was Death was due to discharge of rifle in accordance with medical evidence while balance of his mind was disturbed That verdict was challenged in proceedings by way of judicial review brought by a brother of the deceased on the ground that the coroner had allowed the jury to investigate or consider a question of criminal liability in breach of s 30 of the 1962 Act It should be noted that at the time of the hearing in the High Court and this court suicide was still a crime The challenge succeeded in the High Court and an appeal to this court was dismissed It was not in dispute that the coroner had told the jury that they could inter alia bring in a verdict that the death had been due to a discharge from a rifle in accordance with medical evidence while balance of mind disturbed Not surprisingly both the High Court and this court were satisfied that what was in effect a verdict of suicide could not in the light of s 30 of the 1962 Act be allowed to stand However in the course of his judgment with which Hamilton CJ and O Flaherty J agreed Blayney J said What has to be considered here is the meaning to be given to the phrase how death occurred Apart from ascertaining where and when it occurred the inquest had to be confined to inquiring into this It seems to me that how death occurs in any particular case is a matter to be determined in the light of medical science It is a medical question for a doctor to be answered if necessary by performing a post mortem examination In the present case the answer to the question of how death occurred was to be found in the evidence of the consultant pathologist which was that it was due to shock due to extensive destruction of the brain and bones of the skull due to bullet wound to the forehead The decision of the court in that case was entirely reconcilable with the view that it would have been possible in law for the jury to find that the deceased had died from a self inflicted wound without any determination as to whether it had been inflicted deliberately or accidentally To the extent that the dictum cited suggests that the verdict of a coroner or a jury must be confined to the medical cause of death I am satisfied that it rests on an unduly narrow construction of the 1962 Act and in particular s 30 thereof It cannot have been the intention of the Oireachtas that in the case of a road accident for example the verdict should be simply confined to a finding in accordance with the pathologist s report and that the coroner or jury would be precluded from finding that the deceased had met his death while travelling in a motor car which collided with another vehicle The law in England was stated by Sir Thomas Bingham MR as he then was in R v H M Coroner for North Humberside and Scunthorpe Ex Parte Jamieson as follows it may be accepted that in case of conflict the statutory duty to ascertain how the deceased came by his death must prevail over the prohibition in Rule 42 against a determination of civil or criminal liability But the scope for conflict is small Rule 42 applies and applies only to the verdict Plainly the coroner and the jury may explore facts bearing on criminal and civil liability But the verdict may not appear to determine any question of criminal liability on the part of a named person nor any question of civil liability There can be no objection to a verdict which incorporates a brief neutral factual statement the deceased was drowned when his sailing dinghy capsized in heavy seas the deceased was killed when his car was run down by an express train on a level crossing the deceased died from crush injuries sustained when gates were opened at Hillsborough Stadium But such a verdict must be factual expressing no judgment or opinion and it is not the jury s function to prepare detailed factual statements I am satisfied that those principles are also applicable to the construction of s 30 of the 1962 Act The Master of the Rolls in that judgment also commented that It is noteworthy that the task is not to ascertain how the deceased died which might raise general and far reaching issues but how the deceased came by his death a more limited question directed to the means by which the deceased came to his death I do not think that there is any significant distinction to be drawn in this context between the words used in our Act how the death occurred and the corresponding expression in England how the deceased came by his death In respect of each of the four questions to which the inquest is required to provide an answer the inquiry to be conducted is an important but limited one In seeking to ascertain the intention of the Oireachtas it can be on occasions helpful to look at the statute under consideration as a whole rather than examining a particular provision in isolation In ascertaining whether the intention of the Oireachtas in enacting s 30 of the 1962 Act was to permit the form of inquiry undertaken by the coroner in the present case three other provisions of the Act would appear to be of some relevance Before doing so however I should refer to the circumstances in which the Act envisages the holding of the inquest by the coroner with a jury Section 39 provides that a coroner may hold any inquest either as he thinks proper with or without a jury S 40 1 requires the inquest to be held with a jury where the coroner becomes of the opinion that the death of the deceased came within one of a number of categories set out in the subsection Thus the inquest must be held with a jury if he is of the opinion that e the death of the deceased occurred in circumstances the continuance or possible recurrence of which would be prejudicial to the health or safety of the public or any section of the public Sections 17 and 18 set out the general duties and powers of the coroner in relation to the holding of an inquest Section 17 provides that Subject to the provisions of this Act where a coroner is informed that the body of a deceased person is lying within his district it shall be the duty of the coroner to hold an inquest in

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  • want of care allowing in the case mentioned a person to commit suicide while in custody This topic does not appear to me to relate to the manner of death but rather to the broad circumstances in which death occurred 16 These cases do not appear to me to be similar to the present one The question of whether the three in one vaccine played any causal role in the death seems in principle to be within the meaning of the term how the death occurred and to be a question of a medical nature 17 Counsel on behalf of the Notice Parties the parents of the deceased submitted that if he had died within a short time of receiving the three in one injection there could be no objection to the coroner inquiring into whether or not the injection had any role in the condition which led to his death I agree with this submission and I do not consider that lapse of time places a possible causative factor outside the remit of the coroner though it may make the establishment of causation more difficult Counsel for the coroner submitted convincingly in my view that an inquest into the death of a person who died following contracting of a blood disorder would not be precluded from examining the circumstances of a transfusion had by the deceased even if it occurred many years earlier 18 Accordingly I do not consider that the facts that the three in one injection was administered to this deceased in his extreme infancy was in itself a factor which would preclude this examination at the inquest 19 Accordingly I consider that the issue of whether the death was caused wholly or in part by the administration of the three in one pertussis vaccine is within the possible scope of an inquest held pursuant to the Act of 1962 The question remains however of whether the steps taken by the course of his inquiries and in particular the commissioning of a further report and the calling of a further medical practitioner to give evidence are permissible having regard to the terms of Section 26 of the Act Section 26 20 The terms of Section 26 of the Act in so far as relevant are as follows 1 A coroner may at any time before the conclusion of an inquest held by him cause a summons in the prescribed form to attend and give evidence at the inquest to be served on any person including in particular any registered medical practitioner whose evidence would in the opinion of the coroner be of assistance at the inquest 2 A coroner shall not exercise in relation to the attendance at an inquest of a second registered medical practitioner the power conferred on him by sub section 1 of this section unless 21 It is agreed that neither of the two exceptions which then follow apply in the present case 22 The legislative antecedents of Section 26 are not without interest I can trace no restriction on the power of a coroner to call any number of medical witnesses until the year 1836 But clearly coroners encountered some difficulty in securing the attendance of professional witnesses when it was not possible to remunerate them for their time and effort By 10 Geo 4 IV Cap XXX v II 1829 the Coroners Ireland Act Section 3 provided And whereas at inquests held by coroners upon the bodies of deceased persons great difficulty exists in procuring the attendance of witnesses duly qualified to give evidence as to the cause of the death of such persons by reason of the want of any power to remunerate such witnesses for their trouble and loss of time be it enacted that it shall and may be lawful for any coroner before whom any physician surgeon apothecary chemist or other person practising medicine or surgery shall in pursuance of a summons from such coroner attend and be examined relative to the death of any deceased person to grant to such witness an order signed by such coroner upon the treasurer of the County or County of a City within which such inquest shall be held for such sum not exceeding 5 as to the coroner shall seem fit 23 That provision does not appear to me to limit the number of witnesses who might be so remunerated though it will be observed that they could not receive an order for payment unless they had been summonsed 24 Seven years later by 6 7 Wm IV Cap LXX IX An Act to provide for the attendance and remuneration of medical witnesses at coroners inquests a limitation on numbers was first imposed This is an Act remarkable for its convoluted syntax but in so far as is relevant it provides that any doctor who is in attendance on the deceased on his last illness could be summoned and If it shall appear to the coroner that the deceased person was not attended immediately before his death by any legally qualified medical practitioner it shall be lawful for the coroner to issue such order for the attendance of any legally qualified medical practitioner being at the time in actual practise in or near the place where the death has happened and it shall be lawful for the coroner either in his order for the attendance of the medical witness or at any time between the issuing of such order and the termination of the inquest to direct the performance of a post mortem examination by the medical witness or witnesses who may be summoned to attend at any inquest provided that any person shall state upon oath before the coroner that in his or her belief the death of the deceased individual was caused partly or entirely by the improper or negligent treatment of any medical practitioner or other person such medical practitioner or other person shall not be allowed to perform or assist at the post mortem examination

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  • did not progress between May of 1996 and July of 1999 However it would equally appear that during that period no steps were taken by the defendant to deal with the matter and they in fact participated in this delay From a review of the file I am unaware of any motion brought by the defendant during that period 4 The position is that this firm was approached by the plaintiff in or about July of 1999 to advise him in relation to this case and to act on his behalf We immediately engaged on a review of the file which was relatively substantial at this stage 5 On a review of the file it was decided to seek a further medical opinion from Mr David Ralph a distinguished Consultant Urologist based in the United Kingdom A request was made for this report in or about the month of February 1999 As yet we have not received the report from Mr Ralph but we expect to have it shortly 6 I therefore say that Ms O Mara is incorrect in paragraph 7 of her affidavit to state that no step has been taken by my firm as the plaintiff s new firm of solicitors Rather we are trying at all speed to assemble an appropriate medical opinion so that we can properly advise the plaintiff prior to the service of a new Notice of Trial In addition I would say that while there has been overall delay in relation to this case the Notice of Motion was issued only some six months after this firm had become involved and we should be allowed an opportunity to get in this information so as to properly advise the plaintiff in relation to the case 7 In all of the circumstances I therefore pray this honourable Court for an order refusing to grant the relief sought in the defendants motion 11 The report of the High Court Johnson J judgment states This case coming on before me on 20th March 2000 having heard the Counsel on both parties and having read the Affidavits I came to the conclusion that there had been unreasonable and inordinate delay on behalf of the Plaintiff in bringing this case forward and therefore exercise sic my discretion and struck out the case for want of prosecution There is nothing further I can add to the matter 12 Against that judgment the plaintiff now appeals The plaintiff grounds his appeal on the following matters The plaintiff received a letter from his solicitor in February 2000 telling him that an application by the Defendants to strike out the claim would be heard on 6th March 2000 and he was not informed then or in a subsequent consultation with his solicitor on the 2nd March 2000 of the Order that was sought against him namely to dismiss the Plaintiff s claim for want of prosecution and in particular he was not informed that an Order sought was to dismiss the plaintiff s claim for want of prosecution for failure to serve a new Notice of Trial after same was struck out on 4th December 1998 he did not know of the striking out of the Notice of Trial in December 1998 and he did not have knowledge of the content of the affidavits of Catriona O Mara filed on the 14th February 2000 and of Damien M P Tansey filed on the 6th March 2000 and that therefore the Plaintiff had not the opportunity to defend against the Order that was sought and was given 13 The plaintiff also relied on the following 1 a That the following was not before the learned judge The efforts of the Plaintiff in correspondence with solicitors for the Defendants to progress the case in raising matters regarding the records and discovery and the response he received and that it was the Plaintiff s position that discovery had not been met and that the Defendants had said they were going to set the case down for trial and had taken steps to do that but did not proceed 2 a That a bacteriology report dated 18th June 1986 disclosed on discovery and produced by the Defendants is not an authentic document as it does not relate to the Plaintiff though it bears his hospital no and that the Defendants did not make full and complete discovery of any pathology reports b That the Second Defendants did not disclose the date of destruction of the original records and that the microfilm disclosed on discovery cannot be relied on c That there was not full and complete or any discovery of nursing notes in that the information therein is only available without warranty d That the recent transcript of the bacteriology report provided to the Plaintiff is wrong 3 That if evidence herein was before the Court it would likely have had an effect on the outcome 4 That the inclusion of the bacteriology sic report in the medical records and the version appearing as sputum and the letter maintaining that the bacteriology report did relate to the Plaintiff and the transcript of the bacteriology report provided by the Defendants was severally and jointly to conceal that there was non disclosure of other report s and that the non disclosure of the other report s hindered and obstructed the Plaintiff s case 5 That the Plaintiff has an arguable case on the merits 14 The plaintiff has appealed against the order of the High Court of 20th March on the grounds 1 The Plaintiff did not have an opportunity to defend with knowledge of the Order sought against him and that the Plaintiff does not have knowledge of the content of the affidavits of Damien M P Tansey filed on the 6th day of March 2000 and of the affidavit of Catriona O Mara filed on the 6th day of March 2000 2 The defendants did not make full and complete discovery and a document released was

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