F. Murphy v Flood

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 22 July 1999
• Date: 22 July 1999
• Docket Number: [S.C. No. 148 of 1999]

Supreme Court

[S.C. No. 148 of 1999]

F. Murphy v. Flood

Michael Fachtna Murphy

Applicant

and

The Honourable Mr. Justice Feargus Flood, (the Sole Member of the Tribunal of Inquiry into Certain Planning Matters and Payments), Respondent, The Attorney General, George Redmond, and The Director of Public Prosecutions, Notice Parties

Cases mentioned in this report:-

Ambiorix Ltd. v. Minister for the Environment (No. 1) [1992] 1 I.R. 277; [1992] I.L.R.M. 209.

Goodman International v. Mr. Justice Hamilton [1992] 2 I.R. 542; [1992] I.L.R.M. 145.

Haughey v. Moriarty [1999] 3 I.R. 1.

Murphy v. Corporation of Dublin [1972] I.R. 215; (1972) 107 I.L.T.R. 65.

Tribunal of Inquiry - Administration of justice - Jurisdiction - Discovery - Privilege - Executive privilege - Criminal Assets Bureau - Whether Tribunal entitled to rule on privilege - Whether offends nemo iudex in causa sua - Tribunals of Inquiry (Evidence) Act, 1921 (11 & 12 Geo. 5, c. 7) - Tribunals of Inquiry (Evidence) (Amendment) Act, 1979 (No. 3) - Constitution of Ireland, 1937, Article 38.

Practice and procedure - Discovery - Privilege - Executive privilege - Criminal Assets Bureau - Refusal to furnish documents to tribunal - Whether tribunal entitled to rule on privilege.

Appeal from the High Court.

The facts are summarised in the headnote and are fully set out in the judgment of Hamilton C.J.,infra.

On the 4th May, 1999, the applicant was granted leave to apply for judicial review by the High Court (Geoghegan J.). The application for judicial review was heard by the High Court (McCracken J.) on the 16th and 17th June, 1999, who delivered judgment refusing the application on the 1st July, 1999.

By notice of appeal dated the 6th July, 1999, the applicant appealed to the Supreme Court. The appeal was heard by the Supreme Court (Hamilton C.J., Denham, Barrington, Keane and Lynch JJ.) on the 14th July, 1999.

The respondent, the sole member of the Tribunal of Inquiry, made an order requiring the second notice party to make discovery on oath of all documents in his possession relevant to the subject matter of the Tribunal. Subsequently, the second notice party was arrested by officers of the Criminal Assets Bureau who seized documents from him. The respondent then requested that the applicant, the Chief Bureau Officer of the Criminal Assets Bureau, furnish to the Tribunal copies of the documents seized from the second notice party. The applicant refused to furnish copies of the said documents, and at a public sitting of the Tribunal, the second notice party indicated that he was unable to comply with the order of discovery made by the respondent because the relevant documents had been seized by the Criminal Assets Bureau.

Subsequently, the respondent issued a summons directing the applicant to attend before the Tribunal and to produce and furnish to the Tribunal copies of the documents seized by the Criminal Assets Bureau from the second notice party. The applicant claimed privilege in respect of the said documents and submitted to the respondent that the respondent had no jurisdiction to rule upon the question of privilege once it had been raised, on the basis that the determination of that issue constituted the administration of justice and as such could only be determined by a court validly constituted by the Constitution. The respondent ruled that he had jurisdiction to determine the issue of whether the applicant was entitled to privilege and rejected the applicant's claim of privilege. In these proceedings, the applicant applied by way of judicial review for, inter alia, an order quashing the decision of the respondent. The High Court (McCracken J.) refused to grant the relief sought and the applicant appealed to the Supreme Court.

Held by the Supreme Court (Hamilton C.J., Denham, Barrington, Keane and Lynch JJ.), in dismissing the appeal, 1, that as the Tribunal was merely conducting an inquiry, findings, rulings and decisions made by the Tribunal acting pursuant to the resolutions by which it was established, and within the statutory framework by which its proceedings were governed did not constitute the administration of justice within the meaning of Article 34.1 of the Constitution.

Goodman International v. Mr. Justice Hamilton [1992] 2 I.R. 542;Haughey v. Moriarty[1999] 3 I.R. 1 followed.

2. That where a person required by the Tribunal to produce documents made a claim that some or all of the documents were privileged, the respondent was entitled to adjudicate on that claim of privilege.

3. That, as there were no proceedings in being before a court in which the executive was claiming the right not to produce documents, the question of a conflict in the course of proceedings in a court between the public interest in the administration of justice and the public interest that might be affected by the production of particular documents did not arise and accordingly, the respondent was entitled to rule on the applicant's claim of privilege.

Ambiorix Ltd. v. Minister for the Environment (No. 1) [1992] 1 I.R. 277;Murphy v. Corporation of Dublin[1972] I.R. 215; (1972) 107 I.L.T.R. 65 distinguished.

4. That, where the respondent exercised...