Keogh v Special Criminal Court (Approved)

Factual and Procedural Background

This judgment was delivered by Judge Cahill in respect of an application made by the Plaintiff seeking access to transcripts and the judgment of the Defendant's trial of the Notice Party, for use in the Plaintiff's pending criminal appeal.

Key factual and procedural points (as stated in the opinion):

• On 2 November 2018 the Plaintiff was convicted, after trial before the Defendant, of the murder of the Victim and received a mandatory life sentence. The Plaintiff is serving that sentence in The Prison and has a live, case-managed appeal against conviction filed on 29 November 2018 ("the Appeal").
• The Notice Party was not in the jurisdiction at the time of the Plaintiff's trial. The Notice Party was subsequently extradited and, on 20 December 2024, was convicted by the Defendant of the same murder. The Notice Party is detained in The Prison in The County.
• The present application was issued on 13 February 2025 with the Defendant named as respondent. By interlocutory order of the Deputy Master dated 4 March 2025 (perfected 12 March 2025), Entity A and the Notice Party were joined as notice parties. The matter was transferred to the Judges' List and heard on 23 June 2024 (as recorded in the opinion).
• The order sought is an order directing the Defendant to provide the Plaintiff's legal representatives with copies of the transcript and the judgment of the Defendant in the Notice Party's trial, for the purpose of use in the Plaintiff's Appeal.
• The Application was brought by Special Summons and supported by affidavits sworn by Attorney McNicholl (13 February 2025 and supplemental 18 March 2025) and by a replying affidavit sworn by Attorney Bambury for the Notice Party (1 April 2025), with a further reply affidavit from Attorney McNicholl on 8 April 2025.
• The Defendant indicated by email that it was neutral and not in a position to consent or object. Entity A stated in correspondence that the matter was for "the competent court" to decide. Neither the Defendant nor Entity A participated at the hearing. The Notice Party opposed the Application except that he consented to disclosure of portions of the transcript relating to two specified witnesses.

Legal Issues Presented

1. Whether the High Court has inherent jurisdiction to order the production of transcripts and the judgment of the Defendant in relation to the Notice Party's concluded trial.
2. What legal test governs the exercise of that inherent jurisdiction.
3. How the governing test falls to be applied to the facts of this Application (i.e., whether the Plaintiff has shown the necessary need and absence of relevant legal prejudice).

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff asserted that the High Court has an inherent jurisdiction to grant the relief sought, particularly where protection of constitutional rights and procedural fairness is concerned.
• It was submitted that access to the Notice Party's transcript and judgment is necessary for the fair preparation and prosecution of the Plaintiff's Appeal because the Notice Party's trial concerned the same killing and may contain overlapping evidence and inconsistencies that are relevant to grounds of appeal.
• Specific points relied on included that a key witness at the Plaintiff's trial (Witness McDonnell) also gave evidence at the Notice Party's trial (forming the basis of several grounds of appeal) and that Officer Keyes, who gave evidence at the Plaintiff's trial and was later suspended, gave a short statement in the Notice Party's trial; the Plaintiff seeks the transcripts to assess consistency and to test the prosecution case.
• The Plaintiff's legal team explained that, having not been present at the Notice Party's trial, they could not identify precise portions of the transcript that were relevant but offered that this practical inability to specify passages was not fatal to the Application.
• The Plaintiff offered to provide undertakings (including limits on use and access) to protect sensitive material and proposed liberty to re-enter the matter if only portions were supplied initially.
• Additional arguments reinforced a default expectation of access given the public nature of the trial and prior media reporting, the fact that the Defendant did not object, and that the Notice Party was not the custodian of the transcripts.

Notice Party's Arguments

• The Notice Party opposed disclosure of the full trial transcript and judgment, though consented to disclosure of the evidence of two specific witnesses (including Witness McDonnell and the portion that contains the statement of Officer Keyes).
• It was submitted that the Plaintiff had not shown that access to the full transcript was necessary for procedural fairness or to do justice and that the Plaintiff's inability to specify relevant passages undermined the claim of necessity.
• The Notice Party raised concerns that parts of the transcript contained sensitive material not previously publicised, which disclosure might publicise and could create a security risk to the Notice Party.
• Correspondence from the Notice Party's legal team also raised the risk and cost implications of providing the full transcript.

Defendant and Entity A's Position

• The Defendant indicated neutrality and stated it was not in a position to consent or object; it did not participate in the hearing.
• Entity A stated in correspondence that whether trial transcripts should be released was a matter for "the competent court". Entity A did not participate in the hearing.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court structured its analysis in three stages as framed in the Application: (1) jurisdiction; (2) the test to apply under the inherent jurisdiction; and (3) application of the test to the present facts.

Jurisdiction: The Court began by addressing whether an existing procedural rule rendered invocation of inherent jurisdiction inappropriate (following the requirement in Precedent A). It surveyed the available rules and statutory scheme. The Defendant's own rules provide for the preparation and lodging of transcripts but contain no provision governing third‑party access to those transcripts. The Rules of the Superior Courts (notably Order 123, Rule 9(1) and Order 86C, rule 9) govern access to records held by or for the High Court or to transcripts for parties to pending appeals, but they do not apply to transcripts prepared under the Defendant's rules and held by the Defendant. In light of these findings, and consistent with the authority of Precedent C, the Court concluded that there is no suitable procedural avenue and that the High Court therefore may properly exercise its inherent jurisdiction to determine whether the Defendant should provide access to the requested material.

Applicable test: The Court identified the test as articulated in Precedent B and affirmed by Precedent C: the Court may permit production of transcripts where (a) disclosure is "necessary for the purpose of doing justice" and (b) there would be no "relevant legal prejudice" to the party against whom disclosure would operate. The Court noted that the authorities treat these elements as part of a balancing exercise rather than as strictly sequential or independent hurdles. The Court also considered Precedent D's guidance that some explanatory material or "some reason" is ordinarily required to justify access to court records and that access to audio or transcript records is not automatic (Precedent F).

Application to the facts: The Court then applied that test to the evidence placed before it. The Plaintiff's case was that the transcripts and judgment from the Notice Party's trial may contain evidence relevant to the Appeal, including evidence by a witness common to both trials (Witness McDonnell) and a statement from Officer Keyes; the Plaintiff's affidavit materials set out that several grounds of appeal depend on challenging that witness' evidence and that the Plaintiff could not have known the contents of the Notice Party's trial while the Notice Party was outside the jurisdiction.

The Court acknowledged the Notice Party's offer to provide discrete portions of the transcript (the evidence of the particular witness and the portion containing the Officer Keyes statement) and his principal concerns of sensitivity and a potential security risk if broader disclosure occurred. The Court balanced these concerns against the Article‑level risk to the Plaintiff of being deprived of material potentially relevant to his criminal appeal: in the criminal context the risk of prejudice to the convicted appellant if relevant material is withheld is particularly grave.

The Court considered the divergence of views in Precedent C (including Judge Hardiman's criticisms that more detailed information about intended use might be required in some circumstances) and accepted that while more granular specification of relevant passages would have been preferable, the Plaintiff's inability to specify precise passages was explained by the fact that he and his legal team had not been present at the Notice Party's trial. Given that explanation and the stakes at issue in a criminal appeal, the Court was prepared to accept the sufficiency of the reasons advanced as to why the transcripts and judgment were "necessary for the purpose of doing justice."

On the question of "relevant legal prejudice", the Court found that the Notice Party's asserted security and sensitivity concerns were not, in the language of the authorities, "relevant legal prejudice" of the kind that would outweigh the necessity of disclosure: the concerns were predominantly about potential public reporting or security risks rather than a legal disadvantage that would impede fair trial processes. The Court observed that the mere presence of material damaging to the Notice Party in the transcripts does not, by itself, establish legal prejudice sufficient to refuse disclosure. The Court also noted that protective measures (such as undertakings and, if appropriate, later reporting restrictions by the appellate court) could be fashioned to address non‑legal harms.

Having balanced necessity against the absence of relevant legal prejudice and having regard to the authorities cited (in particular Precedent C), the Court concluded that the Plaintiff had discharged the onus of showing that disclosure was necessary and would not cause relevant legal prejudice that outweighed that necessity. The Plaintiff's solicitors offered an undertaking to limit use of the material to the Appeal and to restrict broader dissemination; the Court accepted that protections were appropriate and stated it would hear submissions as to the precise formulation of such undertakings and as to costs and practical arrangements for providing access.

Holding and Implications

Core ruling: The Court concluded, in principle, that the High Court has inherent jurisdiction to order disclosure of the transcripts and judgment held by the Defendant in relation to the Notice Party's trial and that the Plaintiff has shown that disclosure of those materials is necessary for the purpose of doing justice in the Plaintiff's Appeal and that there would be no relevant legal prejudice to the Notice Party that outweighs that necessity. Accordingly, the relief sought was granted in principle subject to the formulation of appropriate protective undertakings and directions on costs and practical arrangements.

Direct consequences and next steps (as recorded in the opinion):

• The Court accepted the Plaintiff's undertaking offer and stated that it would hear submissions from the parties as to the precise formulation of that undertaking and as to costs associated with the Application and the provision of the transcripts.
• The matter was listed for further hearing before Judge Cahill at 10:00am on 10 October 2025 in order to make final orders on the undertaking, provision of access, and costs.

Broader implications: The Court's decision follows existing authority (notably Precedent C) and applies the established two‑part balancing test. The opinion does not purport to establish a novel legal rule beyond the application of the existing framework; rather it applies that framework to conclude that production of the requested material should be permitted in the specific circumstances of this criminal appeal, subject to protective measures.