Murphy v Flood

• Jurisdiction: Ireland
• Judge: Hamilton C.J.
• Judgment Date: 26 January 2000
• Neutral Citation: [1999] IESC 60
• Court: Supreme Court
• Docket Number: [S.C. No. 103 of 1999]
• Date: 26 January 2000

[1999] IESC 60

THE SUPREME COURT

HAMILTON C.J.

DENHAM J.

BARRINGTON J.

KEANE J.

LYNCH J.

148/99

MURPHY v. FLOOD

BETWEEN:

MICHAEL FACHTNA MURPHY, CHIEF BUREAU OFFICER CRIMINAL ASSETS BUREAU

Applicant

and

MR. JUSTICE FEARGUS FLOOD, THE SOLE MEMBER OF THE TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS AND PAYMENTS

Respondent

and

THE ATTORNEY GENERAL ACTING IN THE PUBLIC INTEREST and GEORGE REDMOND

Notice Parties

Citations:

CONSTITUTION ART 34.1

TRIBUNALS OF INQUIRY (EVIDENCE) (AMDT) ACT 1997 S4

TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921 S1

TRIBUNALS OF INQUIRY (EVIDENCE) (AMDT) ACT 1979 S4

TRIBUNALS OF INQUIRY (EVIDENCE) ACTS 1921 – 1998

GOODMAN INTERNATIONAL V HAMILTON 1992 2 IR 542

HAUGHEY V MORIARTY UNREP SUPREME 28.7.1998

MURPHY V DUBLIN CORP 1972 IR 215

AMBIORIX LTD V MIN FOR ENVIRONMENT 1992 1 IR 277

Synopsis

Administrative Law

Tribunal of inquiry; judicial review; discovery; jurisdiction; natural and constitutional justice; nemo iudex in causa sua; respondent was sole member of Tribunal of Inquiry; applicant was summoned to appear before Tribunal and to produce and furnish certain documents; applicant challenging respondent's decision that he had jurisdiction to rule on question of privilege; whether ruling on privilege constituted administration of justice that could only be carried out in courts established under the Constitution; whether adjudication by respondent on this matter constituted him a judge in his own cause; ss.1 & 4, Tribunals of Inquiry Act, 1921.

Held: Respondent has jurisdiction to rule on question of privilege; respondent had not been a judge in his own cause.

Murphy v. Mr. Justice Flood - Supreme Court: Hamilton C.J.*, Denham J., Barrington J., Keane J., Lynch J. (*Decision of the Court delivered by Hamilton C.J.) - 22/07/1999 - [1999] 3 IR 97 - [2000] 2 ILRM 112

It is clear that the respondent has jurisdiction to adjudicate on the question of whether privilege can be claimed by the applicant in respect of the documents sought to be produced before the tribunal. In making that adjudication it could not be said that the respondent has an interest in the outcome of the decision merely because the nature of the ruling may facilitate the inquiry he is conducting. The Supreme Court so held in dismissing the appeal.

1 Judgment of the Court delivered on the 22nd day of July 1999 by Hamilton C.J.

2 This is an appeal brought by the Applicant herein, Det. Supt. Michael Fachtna Murphy, the Chief Bureau Officer, Criminal Assets Bureau (hereinafter referred to as the Appellant) against the judgment of McCracken J. delivered on the 1st July 1999 and the Order made in pursuance thereof on that date, whereby he dismissed the Motion issued on behalf of the Appellant which sought against the Respondent;

3 (1) An Order of Prohibition directed against the Respondent herein prohibiting him from taking any further steps to require the Applicant to produce or furnish documents pursuant to a Summons issued by order of the Respondent on the 13th day of April 1999 and a decision of the Respondent's made on the 23rd day of April 1999 rejecting the Applicant's claim of privilege in respect of the furnishing of the said documents.

4 (2) An Order or Orders of Certiorari quashing the said Decision of the 23rd day of April 1999 and/or the Summons of the 19th day of April 1999 as may be appropriate.

5 (3) A Declaration that the decision of the Respondent made on the 23rd day of April 1999 was made ultra vires and in excess of the powers of the Respondent.

6 (4) A Declaration that the decision of the Respondent made on the 23rd day of April 1999 was made in breach of the provisions of the Constitution of Ireland 1937 and in particular of Article 34.1 thereof.

7 (5) A Declaration that the decision of the Respondent made on the 23rd day of April 1999 is null, void and of no legal effect by virtue of having been made in breach of the principles of natural and constitutional justice and in particular in breach of the principle of nemo judex in causa sua.

8 (6) A Declaration that the furnishing of the said documents of which the Respondent requires production is covered by the privilege claimed by the Applicant or, alternatively, an Order of Mandamusdirecting the Respondent to invoke the statutory procedures provided for by Section 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1997in order to have the issue of the said privilege determined by this Honorable Court.

9 By order of the High Court Geoghegan J. made on the 4th day of May 1999 the Appellant had been given leave to apply by way of an application for judicial review for the aforesaid reliefs.

10 The said order further provided that the Appellant do serve an Originating Notice of Motion returnable before the Court on Monday the 10th day of May 1999 on the Respondent and on George Redmond and on the Chief State Solicitor on behalf of the Attorney General acting in the public interest.

11 The grounds upon which the said liberty was granted were set forth in paragraph (E) of the Statement required to Ground Application for Judicial Review and verified by the affidavit of the Appellant sworn on the 4th day of May 1999.

12 In accordance with the terms of the said order, the motion was issued and served. On the 7th day of May 1999 a Notice of Opposition was filed on behalf of the Attorney General and on the 10th day of May 1999 a Statement of Grounds of Opposition was filed on behalf of the Respondent.

13 The facts which led to the said application and on which it was based are set forth in the aforesaid affidavit of the Appellant and in the judgment of the learned High Court Judge and may be briefly summarised as follows:-

14 (1) The Respondent, Mr. Justice Flood, is the sole Member of the Tribunal of Inquiry into Certain Planning Matters and Payments, such Tribunal of Inquiry having been established by order of the Minister for the Environment and Local Government made on the 4th day of November 1997 pursuant to a resolution of Dáil Éireann passed on 7th day of October 1997 and of Seanad Éireann passed on 8th day of October 1997. Inter alia, the Order provided that the Tribunals of Inquiry (Evidence) Acts 1921 and 1979should apply to the Tribunal.

15 (2) The Terms of Reference of the said Tribunal are not an issue in this case and need not be set forth herein.

16 (3) In the course of its inquiries into the aforesaid matters and in exercise of the powers conferred on it by the 1921 Act and the 1979 Act, the Respondent made Orders dated respectively the 26th day of January 1999 and the 19th day of February, 1999, requiring one George Redmond, a Notice Party herein, to make discovery on oath of all documents in his possession relevant to the subject matter of the inquiry.

17 (4) On the 19th day of February 1999 the said Notice Party was arrested by officers of the Criminal Assets Bureau in the exercise of Garda Functions and certain materials was seized by the said officers from the Notice Party.

18 (5) On the same date, the 19th February, the Notice Party's dwelling house and premises were searched by Bureau Officers pursuant to a search warrant and further material was seized.

19 (6) By letter dated the 22nd day of February, the Solicitor acting on behalf of the Respondent requested the Appellant to furnish copies of all documents seized from the Notice Party and furnished a written consent from the Notice Party to the production thereof.

20 (7) By letters dated the 1st and 24th day of March 1999 the Appellant refused the Respondent's request.

21 (8) While the Appellant refused to make available to the Respondent copies of the said documents, an inventory of all material seized was prepared and furnished to the Notice Party and he was further furnished either personally or through his Solicitor with copies of all documents to which he was legally entitled.

22 (9) At a public sitting of the Tribunal of Inquiry it was stated on behalf of the Notice Party, George Redmond, that he was unable to comply with the Orders of Discovery made by the Respondent because the relevant documents had been seized by the Appellant.

23 (10) On the 13th day of April 1999 a Summons was issued by the Respondent directed to the Appellant to attend at the sitting of the Tribunal on Friday, the 16th day of April 1999 at 10.00 a.m. and "there and then to produce and furnish to the Tribunal copies of the documents set out in the schedule attached" to the said Summons.

24 (11) The copies of the documents sought thereby consisted of the material seized from the Notice Party, Mr. George Redmond, on the 19th February 1999 and from his dwelling house on that date.

25 (12) In accordance with the terms of the said Summons, the Appellant attended at a public sitting of the Tribunal on the 16th day of April 1999 and claimed privilege in respect of the said documents.

26 (13) The matter was adjourned for legal argument to the 19th day of April 1999.

27 (14) The only submission made to the Respondent on this issue by Counsel on behalf of the Appellant was that the Respondent had no jurisdiction to rule on the question of privilege once it had been raised on behalf of the Appellant, as the determination of such issue constituted the administration on justice and as such could only be determined by a Court validly constituted by the Constitution.

28 (15) On the 23rd day of April 1999 the Respondent ruled that he had jurisdiction to determine the issue of whether the Appellant was entitled to privilege in respect of the said documents and rejected the Appellant's claim to such privilege.

29 (16) It is this decision or ruling of the Respondent that the Appellant sought and seeks to have quashed on the ground that he had no jurisdiction to make such ruling as it involved the administration of justice.

30 The learned trial judge stated in the course of his...