The High Court has ordered the State defendants to disclose specified records in Nora Wall’s damages case over an alleged miscarriage of justice, while refusing a separate application for discovery from the Director of Public Prosecutions (DPP).
In a judgment delivered on 20 March 2014, Mr Justice Michael White ruled that records about the decision not to call a witness identified as PP, assessments of a witness identified as RW, and systems for complying with prosecution disclosure and witness directions were relevant and necessary to the case. The order is limited to documents within the defendants’ power or procurement, including those held by their servants or agents.
The court said the discovery order sought against the defendants was deficient in its original form. It would make an amended order, subject to any further submissions on its terms. The specified records include reasons for the decision not to call PP, assessments of RW’s credibility or reliability before and after that decision up to 31 July 1999, and records of systems in place at the time of trial from 1 April 1997 to 31 July 1999.
Wall’s civil proceedings, issued in July 2010, seek damages under section 9 of the Criminal Procedure Act 1993. Her pleadings allege failures to investigate and disclose information, and allege that the complainant and an allegedly corroborating witness gave false or unreliable evidence. Those are allegations in the civil case, not findings made in this discovery judgment.
The judgment referred to the Court of Criminal Appeal’s 2005 decision granting Wall a certificate under section 9. That court said evidence established that PP had made an untrue statement and given fabricated evidence, and that the circumstances gave rise to a compelling inference of collusion between PP and the complainant. The High Court noted that the parties disagreed about the grounds on which the certificate had been granted. It said the certificate’s parameters, and whether it included a finding that RW and PP connived to give false testimony, were matters for the trial judge. RW was not a party to the civil proceedings and had made no such admission, the judgment said.
The court refused non-party discovery in the motion directed at the DPP. It said the motion was wrongly framed by citing the DPP as a notice party, its requested categories were unsuitable for non-party discovery, and serious allegations had been made against the DPP’s office and RW, neither of whom was a party or notice party. For this application, the court also said it did not regard the DPP as a servant or agent of the defendants.