JOHN GILLIGAN

PLAINTIFF 

.V.

 THE DIRECTOR OF PUBLIC PROSECUTIONS

DEFENDANT

Judgment of Mr. Justice Barron delivered the 17th day of November 1987.

The Plaintiff was returned for trial on the 20th of May 1986 in respect of counts of receiving certain vacuum cleaners and other goods.  In the course of the proceedings leading up to the return for trial, the Plaintiff called the witnesses whose statements appeared on the Book of Evidence so that their evidence might be put  upon deposition.  Subsequently, on the 4th of February 1987 the Plaintiff was served with a notice of additional evidence which related to evidence to be given by several additional witnesses This additional evidence relates to identification of the goods alleged to have been received and its purpose is essentially to guard against the possibility that the identification evidence already on the depositions would be ruled out at the trial.  The Plaintiff claims that he should be entitled to call these further witnesses before the trial so that their evidence may also be put on deposition. His case is based upon the provisions of the Criminal Procedure Act 1967.  The provisions of this Act so far as they are material to this case are as follows:

6(1)  The prosecutor shall cause the following documents to be served on the accused-

(a)	a statement of the charges against him,

(b)	a copy of any sworn information in writing upon
which the proceedings were initiated,

(c)	a list of the witnesses whom it is proposed to    ^
call at the trial,

(d)	a statement of the evidence that is to be given   H
by each of them, and

(e)	a list of exhibits (if any).	

(4)  The prosecutor may cause to be served on the accused and furnished to the Court a further statement of the evidence to be given by any witness a statement of     **] whose evidence has already been supplied.

7(1)  The justice shall 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. 

(2)  The prosecutor and the accused shall each be entitled to give evidence on sworn deposition and also to requin ! the attendance before the justice of any person, whether included in the supplied list of witnesses or not, and to examine him by way of sworn deposition.       

11(1) Where the accused has been sent forward for trial the Attorney General shall cause to be served on him a list of any further witnesses whom he proposes to call at the trial, with a statement of the evidence that is to be given by each of them, a list of any further exhibits, a statement of any further evidence that is to be given by any witness whose name appears on the list of witnesses already supplied, and copies of any statement recorded under section 7 and any    m deposition taken under that section or under section 1.

Section 5 of the Act requires the justice to conduct a preliminary examination of the charges against the accused in accordance with the provisions of that part of the Act.
It is submitted that where the Prosecution is aware of the existence of material witnesses or should be aware that a particular person would be required to attend as a witness at the trial, failure to disclose the existence of any such person at the preliminary investigation stage is a breach of the duty of the Prosecutor under section 6( 1), paragraphs (c) and (d).  It is submitted that such failure denies the right of the accused to a meaningful preliminary investigation.

It seems reasonably clear that the Prosecution has decided that its proofs as furnished in the District Court may be suspect, and that this additional evidence is essential to establish its case.  The Plaintiff's challenge to this procedure raises questions as to the extent of the obligation of the Prosecution under section 6(1), subparagraphs (c) and (d) and, if it is in breach, the nature of the remedy available to the Defence.

The scheme of the Act presupposes that it may become necessary, both before and after the return for trial, for the Defence to be informed that either additional witnesses would be called or additional evidence would be adduced from the listed witnesses.  Where this becomes necessary before a return for trial, the provisions of section 6(4) apply.  If after such return, section 11 contains the relevant power.  It is to be noted that section 6(4)  does not appear to permit the Prosecution to give notice to the Defence to call additional witnesses at the preliminary stage. It is difficult to see why this should be, but having regard to the express right in this regard given by section 11 there seems little scope for any other interpretation. Nevertheless, nothing turns in the present case on whether or not
such right exists.

The obligation is upon the Prosecution to ensure that there is a preliminary investigation of the charges against the accused in accordance with the terms of section 6.  They can only be in breach of this obligation if what results is in reality not a proper investigation.  If a material witness or material evidence is not before the Court it is a question of degree whether or not a real examination has taken place. Where the Prosecution acts consciously and deliberately to exclude some person or some thing at that stage this might invalidate a return for trial. If so, the appropriate remedy is to have it quashed.  There is nothing in the present case to indicate the presence of any such conscious  or deliberate action. The service of notices of additional evidence even on the eve of a trial and during the course of a trial is permitted subject to the overriding consideration that such procedures may not prejudice the fair trial of the accused.  No such possibility exists in the present case. The accused in reality is seeking to have the preliminary investigation re-opened. There is no statutory provision which gives such right. There has been a proper preliminary investigation culminating in an uncontested return for trial.  This has been followed by a lawful notice of additional evidence in respect of which there is no statutory right H akin to that contained in section 7(2) of the Act.  In my view, the Plaintiff is not entitled to the relief he seeks.  If granted, this would have involved in effect a declaration that  the return  m for trial was invalid.  The absence of any challenge to the validity of this return is an additional ground for refusing such relief.