Lawyers for Judge Brian Curtin lost a bid yesterday to stop the Government proceeding next week with a High Court application to decide whether the court is entitled to grant declarations that a computer and other materials were unlawfully seized from the judge's home and may not be used in any other proceedings.
Despite assertions yesterday by Mr John Rogers SC, for Judge Curtin, that next Tuesday's action was unnecessary and a "gross waste" of court time and public money, Mr Justice Kelly said it raised important legal issues and directed that the hearing should proceed.
The proceedings arise from Judge Curtin's acquittal by Circuit Court Judge Carroll Moran on April 23rd last of a charge of possessing child pornography. A warrant used to search his home in May 2002 was used too late. A computer said to contain images of child pornography and other materials were seized.
On June 2nd, the Minister for Justice moved a motion for the removal of Judge Curtin from office "for stated misbehaviour". The motion has been adjourned pending receipt of a report from an Oireachtas committee to inquire into the judge's conduct.
The same day Judge Curtin initiated proceedings against the Government, the DPP and Garda Commissioner seeking declarations that the computer and other materials were removed by gardaí unlawfully and in breach of his constitutional rights and that the computer and other materials may not be used as evidence in any other proceedings, process or inquiry. The proceedings also seek an injunction restraining the defendants from making any use whatsoever of the materials.
On June 23rd, the Government got High Court leave to bring an application arguing that the court cannot, given that the matter is now being dealt with by an Oireachtas committee, grant the declarations and injunction sought. On June 25th, the president of the High Court directed that there would be a hearing on July 13th.
When the matter came before Mr Justice Kelly yesterday, Mr Donal O'Donnell SC, for the Government, said it appeared Judge Curtin's side was seeking to vacate next week's trial date on the grounds that there was no longer any issue between the judge and the Government in that Judge Curtin was prepared to argue before the Oireachtas committee the issue of admissibility.
However, that position was not precisely set out in an amendment to the legal pleadings and the inference was that Judge Curtin was seeking to keep something "in reserve", Mr O'Donnell said.
Mr Rogers said a letter of June 4th last from Judge Curtin's lawyers to the chairman of the Joint Oireachtas Committee was intended to put the Oireachtas on notice of the judge's High Court action and not to inhibit the committee. It was impossible for Judge Curtin's solicitor to get instructions now as the judge was in hospital. He argued that the Government's motion was designed to have the courts declare that it was "hands off" any agitation by Judge Curtin about the admissibility of evidence.
Mr Rogers said he had drafted an amendment to Judge Curtin's statement of claim which made plain that it was his intention to agitate before the Oireachtas committee the issue of admissibility.
Mr Justice Kelly said any fair reading of the June 4th letter from Judge Curtin's solicitors showed the committee was being told there was a justiciable issue pending before the High Court touching on matters with which the committee would also be dealing. It was in light of that letter that the Government brought its motion.
Now his solicitors were saying that Judge Curtin was not trying to have decided, in advance of the Oireachtas committee hearings, any issue regarding the admissibility of evidence which might be heard by the committee. In light of that, it was contended next week's hearing was unnecessary and that the proposed amendment to the judge's statement of claim put the matter beyond doubt.
The Oireachtas committee had asked the judge to give it all computers and other material, including any child pornography images, in his possession. Judge Curtin was now in a psychiatric hospital but submissions would be made as to whether the committee could compel him to produce the material. It was in that context Judge Curtin's side was saying the Government motion was unnecessary.
Mr Justice Kelly said that as his claim for the declarations and injunction remained part of his case, the Government was entitled to seek a decision on whether the High Court could grant such reliefs. While Judge Curtin's side was saying it was not pursuing those reliefs, they remained in the pleadings.
