Questions
1. How and why the sentence imposed on the accused, Philip Sheedy, by order of the Circuit (Criminal) Court made on the 20th day of October, 1997, was listed for review in the Circuit (Criminal) Court on the 12th day of November, 1998, it having been finally dealt with by order of the said Court made on the 6th day of November, 1997, which order was made in pursuance of an application made thereto by Counsel for the said accused to vacate the provision for review of sentence contained in the aforesaid Order made on the 20th day of October, 1997.
2. How it came to be listed before the then Judge Cyril Kelly and not before Judge Joseph Matthews, who had made the original Order imposing sentence.
3. Was any notice given to the Chief State Solicitor's Office with regard to:
(i) the re-entry or listing of the application, and/or
(ii) the nature of the application being made in respect thereof.
4. Was there any appearance on behalf of the DPP at the hearing of the application.
5. The manner in which the case was dealt with by Judge Kelly.
6. Was there any involvement by members or a member of the judiciary in requesting or making arrangements for the listing or re-entry of the case on the 12th November, 1998.
Because of such concern I had an informal meeting on Friday, the 26th March, 1999, with the President of the High Court and the President of the Circuit Court in which the matter was briefly discussed. We agreed that it was vitally necessary to inquire into and ascertain all the facts relevant to these issues.
The President of the Circuit Court agreed to continue the inquiries which he had decided to institute as to the circumstances in which the case came to be listed on the 12th day of November, 1998, in Court 24 before the then Mr Justice Cyril Kelly.
The President of the High Court agreed that, as Judge Kelly was now a member of the High Court, he was the appropriate person to interview Mr Justice Cyril Kelly.
It was my responsibility to interview Mr Justice Hugh O'Flaherty, who is the senior Ordinary Member of the Supreme Court, in connection with these issues.
Alleged involvement of Mr Justice O'Flaherty
I first became aware of the alleged involvement in this matter of Mr Justice O'Flaherty in or about the 10th day of February, 1999, when I was visited in my chambers by the Attorney General, Mr David Byrne, SC.
He showed me either the original or a copy of a "Memorandum for File" dated the 9th day of February, 1999, which had been prepared in the Office of the Chief State Solicitor and which referred to certain conversations which were alleged to have taken place between Mr Brian McGreary of the Chief State Solicitor's Office with Mr Luigi Rea BL, who had appeared (instructed by Michael Staines and Company) for Philip Sheedy at the hearing before Judge Kelly on the 12th day of November, 1998, and Mr Joseph Brennan of the Circuit Court. This is the document referred to in the statement made by the Minister for Justice, Equality and Law Reform on the 1st day of April 1999.
It appeared from the said Memorandum that the Director of Public Prosecutions would "be seeking a Judicial Review Order quashing Judge Kelly's Order of the 12th November 1998."
As it was intended that the matter would be dealt with by proceedings in the High Court, which might ultimately come before the Supreme Court by way of appeal, I did not consider it appropriate to make any inquiries in the matter other than to inform Mr Justice O'Flaherty of the gist of the allegations made in the said Memorandum. These he vehemently denied but informed me that he had spoken to the County Registrar about the possibility of re-listing the case in the Dublin Circuit (Criminal) Court and the procedure with regard thereto.
He informed me that he had given to the County Registrar a copy of the judgment of the Court of Criminal Appeal in the case of the DPP v Paul McDonald which he had delivered on behalf of the Court on the 29th day of July, 1998, which he considered might be of assistance to judges of the Circuit (Criminal) Court.
No further inquiries were conducted by me until after the determination of the Judicial Review proceedings in the High Court on the 25th day of March, 1999, when, it was obvious that having regard to the withdrawal by Counsel on behalf of Philip Sheedy of opposition to the making of the Order sought, there would be no appeal to the Supreme Court.
I have already referred to my meeting with the President of the High Court and the President of the Circuit Court held on the 26th day of March, 1999.
It was my intention to interview Mr Justice O'Flaherty in connection with this matter as soon as possible.
I was aware of the fact that Mr Justice O'Flaherty was abroad having speaking engagements in the United States of America and thereafter was taking a family holiday elsewhere. I did not have his address or a telephone number at which he could be contacted.
Mr Justice O'Flaherty rang me at home on the evening of Wednesday, the 31st day of March, 1999. I informed him of the controversy which had arisen with regard to the early release of Philip Sheedy, that the Minister for Justice, Equality and Law Reform would be making a statement in Dail Eireann in relation to the matter on the following day, the 1st day of April, 1999, and that having regard to reported exchanges in Dail Eireann there was a possibility that he might be named as being involved, in which event he might consider it desirable to cut short his vacation and return home to deal with any questions which might arise.
I arranged to contact him on the following day, April 1st, after the Minister had made his statement and did so.
I informed him briefly of the contents of the Minister's statement, of his reference to the Memorandum for File and the letter dated the 1st day of April, 1999, from the County Registrar and of the view expressed by the Minister that having regard to the contents thereof, a member or members of the judiciary should be invited to comment on certain matters. I again suggested that he might make arrangements to cut short his holiday and come home to deal with these matters.
As this was a family holiday the necessity for making alternative arrangements arose and on Friday, the 2nd April, 1999, Mr Justice O'Flaherty informed me that he had made arrangements to travel home on Sunday, the 4th April, 1999, arriving in Dublin on the following day and would be available on Tuesday, 6th April.
I informed him that I would make available to him, by delivery to his home, any relevant documentation that he would have to consider. By letter dated the 4th April, 1999 (a copy of which is Annex No. 7) I outlined briefly certain matters and enclosed therewith the documents specified therein.
I met Mr Justice O'Flaherty in the Four Courts on Tuesday, the 6th April, when I discussed the matter with him and he presented me with a statement on the extent of his involvement in this matter. He assured me that this was a full account of his involvement in the matter. A copy of the said statement is annexed hereto and is numbered 8.
By letter dated the 7th April, 1999, Mr Justice O'Flaherty enclosed a short addendum to the said statement and the said addendum is annexed hereto at No.9.
On the 8th day of April, 1999, I interviewed Mr Michael Quinlan and questioned him with regard to his conversation with Mr Justice O'Flaherty and the account thereof contained in his (Mr Justice O'Flaherty's) statement.
He informed me that:
(i) his conversation with Mr Justice O'Flaherty was of very short duration - less than 2 minutes;
(ii) Mr Justice O'Flaherty's account of the conversation, as contained in his statement, is accurate;
(iii) Mr Justice O'Flaherty did not ask him to re-list the Sheedy case or discuss the facts of the Sheedy case with him;
(iv) the request to list the case was made by Michael Staines, Solicitor for Philip Sheedy;
(v) Mr Justice O'Flaherty gave him (the County Registrar) a copy of the judgment in DPP v MacDonald which to the best of his knowledge he had placed on the Court file.