Application to the Dublin Circuit (Criminal) Court on Thursday, the 12th day of November, 1998
The matter came for hearing before His Honour Judge Cyril Kelly, as he then was, in Court No. 24 on the 12th day of November, 1998.
As is customary in all criminal cases or matters in regard thereto a record of the proceedings is taken by an official stenographer which record is subsequently printed and recorded as a Transcript of Proceedings.
This was done in this case and a certified copy of the Transcript of Proceedings in this case is annexed hereto as No. 29.
In the course of the said proceedings the Judge stated that he had as usual read the papers and these papers are contained in the Court.
These papers include two psychological reports dated the 12th day of December, 1996, and the 29th day of April, 1997, respectively. As these reports are confidential in the context of this inquiry, I do not propose to annex them to this report.
Included also a Probation and Welfare Officer's Report dated the 17th day of October, 1997. I also regard this as confidential, but it did suggest that the Court might consider the options of Community Service rather than a custodial sentence in spite of the very serious and tragic nature of the offence.
These reports however pre-dated the hearing before Judge Matthews on the 20th day of October, 1997, and had been considered by him.
There was not any later psychology report dealing with Mr Sheedy's mental condition at the time of the hearing.
On the 31st day of March, 1999, the President of the High Court met Judge Cyril Kelly and discussed with him his involvement in this matter.
The President of the High Court recorded in a letter dated the 31st day of March, 1999, the result of such discussion.
Having prepared such letter he, prior to sending it to me, showed it to Judge Kelly who agreed with the terms thereof.
However, he took away the President's draft of the said letter to consider overnight.
On the following day, he gave to the President his proposed draft which elaborated on his position particularly with regard to the practices prevailing in the Dublin Circuit (Criminal) Court.
The President forwarded to me his original letter dated the 31st March, 1999 (which is annexed hereto as No. 30) and the proposed draft prepared by Judge Cyril Kelly, which is annexed hereto as No. 31.
Subsequent to the receipt of the said letter from the President of the High court and Judge Kelly's draft letter, I, in conjunction with the President of the High Court, interviewed Judge Kelly.
The purpose of such interview was twofold:
(i) to ascertain whether he would like to make a formal statement in writing with regard to his involvement in this matter or whether he would rely on the terms of the President's letter dated the 31st March, 1999, and his (Judge Kelly's) draft.
He informed me that his position was as outlined in these documents and that he did not consider it necessary to elaborate thereon in a formal statement.
(ii) The President of the Circuit Court did not agree with the statement contained in Judge Kelly's draft that `it was not an unusual practice for a Criminal Circuit Judge to make orders where another Circuit Judge had previously made an order' and it was considered that such view should be put to Judge Kelly, which I did. He continued to maintain that his said statement was correct.
The President of the Circuit Court prepared and submitted to me a memorandum dated the 14th April, 1999, on the practices prevailing in the Dublin Circuit (Criminal) Court.
A copy of the said memorandum is annexed hereto at No. 32.
In addition the President of the Circuit Court obtained a statement dated the 5th day of April, 1999, from His Honour Judge Joseph Matthews into the circumstances surrounding the listing of the DPP v Sheedy in the Dublin Circuit Criminal Court on November 12th, 1998, and an addendum attached thereto, a copy of which is annexed hereto as No. 27.
It was further decided subsequently that Judge Kelly be further interviewed by the President of the High Court to clarify certain matters arising from a consideration of the Transcript of the Proceedings viz.
(a) what medical reports were on the Court file when he dealt with this case on the 12th day of November, 1998:
(b) why it was that he did not call upon Counsel for the Defendant who was the moving party in the application;
(c) why he did not call upon the Prosecution during the hearing, and
(d) was the judgment of Mr Justice O'Flaherty, to which reference is made by Mr Justice O'Flaherty in his statement, on Judge Kelly's file on the 12th November, 1998.
Judge Kelly's replies to the said questions are contained in a letter dated the 8th day of April, 1998, from the President of the High Court, the terms of which have been approved by him and a copy of this letter is annexed as No. 33.
From such letter it appears that:
"Judge Kelly is unable to remember what expert reports were before him on the 12th November, 1998, when he dealt with this case, but he believes that any expert reports that he relied upon would be contained in the court file and he is satisfied that it was such expert reports that enabled him to form the view which he expressed in court.
"Judge Kelly is also unable to remember if the court file contained a judgment of the court of criminal appeal that had been delivered by Mr Justice O'Flaherty.
"He did not require Counsel for Philip Sheedy or the Prosecution to make detailed submissions to him because, as was his practice, he had re-read the papers before he sat and accordingly was fully familiar with the details of the case.
"He did not specifically call upon the representative of the DPP for submissions because it was the known practice in his court that if there was objection to the relief sought that fact would be made known to the court without the necessity for calling upon the DPP's representative. This was in accordance with his recognised practice. No objection, then or subsequently, was made to the course that he proposed to take."
In his letter dated the 13th day of April, 1999 (already referred to and which is annexed hereto as No. 24) Mr Staines had stated at paragraphs 13 and 14 thereof that:
"13. On the next day, 12th November, 1998, Judge Kelly dealt with the case. There is a transcript available of what occurred. I was not in Court and Mr Luigi Rea BL was attended by my assistant. Mr Philip Sheedy was released by Judge Cyril Kelly.
"14. Some days later I was informed by Luigi Rea BL that Judge Kelly had requested that I would obtain from a psychiatrist a medical report which would set out Philip Sheedy's psychiatric/psychological condition as of the 12th November, 1998, as the Medical Report on the Court file was from a psychologist and also out of date. This new report was then going to be put on the Court file. I indicated that I was not prepared to do this."
Because of the seriousness of this statement I again interviewed Mr Justice Cyril Kelly on the 13th day of April, 1999.
I gave to him a copy of the said letter dated the 12th day of April, 1999, and advised him to consider the contents thereof with particular reference to paragraph 14 thereof.
I again saw Mr Justice Cyril Kelly in the afternoon of that date and he presented me with two detailed statements dated the 13th day of April, 1999, one dealing with the contents of Mr Staines's statement (a copy of which is annexed hereto as No. 26) and one containing his observations on the Statement made by His Honour Judge Matthews dated the 5th April (which is annexed hereto at No. 27) which said observations are annexed hereto as No. 28.
In reply to the suggestion set out at paragraph 14 of Mr Staines's letter quoted at page 21 above, Judge Kelly in his letter to me said:
"I recollect that I subsequently met Mr Rea BL informally, who commented to me that the expert report on file was not up-to-date. I suggested to Mr Rea BL that he should consider obtaining an up-to-date medical report."
Whatever the motive for that suggestion may have been, having regard to the fact that the case had concluded in the Circuit Court, it was manifestly improper.
Hearing before Judge Kelly
Judge Kelly dealt with the case in the manner set forth in the Transcript of the Proceedings with no up-to-date medical or psychology reports.
I am satisfied that, at the hearing of the application there was in court a representative from the office of the Chief State Solicitor. This appears from the Transcript of Proceedings and the letter dated the 6th April, 1999, from the Chief State Solicitor to the Attorney General.
The foregoing, together with the documents and letters annexed hereto, represent a full disclosure of the results of the inquiries instituted by me, as the Chief Justice, with the assistance of the President of the High Court and the President of the Circuit Court and no attempt has been made to suppress any fact or document of which we became aware.
As is apparent from a consideration of the documents annexed to this Report a number of disputed questions of fact arise in this case. It is not possible for me on the basis of written statements and individual interviews to resolve these disputed questions of fact nor is it appropriate that I should attempt to do so.
The resolution of disputed questions of fact would necessitate an inquiry of a nature different from that instituted by me wherein the parties involved in such disputed facts would in the interest of fair procedures be entitled to the right of cross-examination.
However, on the basis of facts which are, at this stage, either admitted or established I can reach the following conclusions.