State (Hanley) v Holley

JurisdictionIreland
JudgeMr. Justice Keane.
Judgment Date01 January 1984
Neutral Citation1983 WJSC-HC 2656
CourtHigh Court
Date01 January 1984

1983 WJSC-HC 2656

THE HIGH COURT

No. 254 SS/1980.
D.P.P. (HANLEY) v. HOLLY

BETWEEN:

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OPSUPERINTENDENT F.C. HANLEY)
COMPLAINANT

AND

MICHAEL HOLLY
DEPENDANT

Subject Headings:

EVIDENCE: production

EVIDENCE: documents

PRACTICE: documents

1

Judgment delivered the 24th day of June. 1983by Mr. Justice Keane.

2

This matter comes before me by way of a consultative Case Stated by District Justice Cyril Maguire pursuant to S. 52 of the Courts (Supplemental Provisions) Act, 1961. The prosecution arose out of an incident which occurred in Listowel, County Kerry, on the 25th April, 1979. Following the incident, the defendant was charged with three offences, but only one was proceeded with by the complainant, vis. a charge that the defendant unlawfully assaulted one Garda Michael J. Queally contrary to common law. On the hearing of that charge, Superintendent F. C. Hanley appeared on behalf of the State and Mr. Robert Pierse, Solicitor, appeared for thedefendant.

3

On the hearing of the complaint, Garda Queally said in evidence that, while he was on duty in Listowel at 1.10 a.m. on the morning inquestion,he arrested a person for being drunk and disorderly and called the patrol car. He said that the defendant tried to take the prisoner from him (the witness) and that in the course of so doing he assaulted the witness. He said that the patrol car arrived almost immediately and the defendant was removed by the two Gardai who were in the car.

4

Garda Queally agreed with Mr. Pierse in cross-examination that the person arrested for being drunk and disorderly had been acquitted of that charge. It was suggested to him that the reason for this was that evidence against that person was shown to be inaccurate. The witness agreed that the Gardai had received incorrect information from another person in relation to the incident. Mr. Pierse, with a view to testing the reliability of Garda Queally's recollection, asked whether he had made a report on the incident. Garda Queally having said that he did, Mr. Pierse asked him what he recalled saying in his report. His account was in accordance with the evidence he had already given. Mr. Pierse then called for the production of the original report.

5

Superintendent Hanley submitted that the report was privileged and that, accordingly, he did not have to produce it. Mr. Pierse submitted that it was not privileged. The learned District Justice held that the report was privileged and need not be produced; whereupon Mr. Pierse requested him to state a case for the opinion of the High Court as to whether in the circumstances Superintendent Hanley was entitled to claim privilege in respect of the report.

6

The learned District Justice, having set out the facts as summarisedabove,then poses the following question for the opinion of this Court:

"Whether, on the above statement of facts, my determination is correct in point of law."

7

The law on this matter was considered in detail by a divisional Court of the High Court (Davitt, P., Dixon and Teevan, JJ.,) in AttorneyGeneral -v- Simpson (1959) I.R. 105. In that case it was held unanimously that communications between one member of the Gardai and another in the course of their duties were inadmissible in evidence because as a class their admission would be against the public interest. It was further held by the majority of the Court, Davitt P. dissentiente, that the objection to their admission need not be expressly or formally made and can be taken by the Court of Trial or by any one concerned in the proceedings. It is clear that, if this decision still represents the law, the learned District Justice was correct in point of law in the present case in excluding the evidence inquestion.

8

The defendant in the Attorney General -v- Simpson was charged with presenting for gain "an indecent and profane performance", i.e. a production of Tennessee Williams" play, "The Rose Tattoo", at a small club theatre in Dublin. In the preliminary proceedings in the District Court, a Detective-Sergeant who had attended a performance of the play, agreed that he had made a written statement to one of his superior officers about the play beforegivingevidence; and that this statement included a description of the play and the impression it made on him (the witness). When the defence called for the production of the statement, it was said on behalf of the State that privilege was being claimed in respect of it on the instructions of the Commissioner of the Gardai. A certificate was then produced, signed by the Deputy Commissioner of the Gardai, in which the claim to privilege was made in general terms.

9

Davitt P. came to the conclusion that communications of this nature were privileged as a class, but that, in the circumstances of that case, the claim to privilege had not been properly made. He said, in the course of his Judgment, that the decision of the House of Lords in Duncan -v- Cammell Laird and Company (1942) A.C. 624 represented in general what had been accepted in this country as the law upon the question of privilege claimed by the executive in respect of communications between officers and servants of the executive. It is clear from his judgment, however, that he entertained serious doubts as to whether that decision should still be followed. He did, however, feel coerced to arrive at the conclusion that communications between members of the Gardai in the course of their duties were privileged because of a decision of an Irish divisional Court consisting of Palles, C.B., Dowse B., and Andrews, J., (as he then was), viz. Reg. -v-McCormick (Crimes Act Cases, 244) which, he said, had never been subsequently disapproved of or even questioned. In that case, it was held that the notebook of a constable in the R.I.C. containing entries relevant to the case was in the nature of a report to his superior officers and was accordingly privileged as being a communication between police officers in the course of their duties.

10

Dixon J., with whom Teevan J., agreed also took the view that the law in both jurisdictions had been generally accepted as being correctly stated in Duncan .v. Cammell Laird and Company. Unlike Davitt P. however, he was satisfied that on the basis of that decision alone the document should be withheld from disclosure, as belonging to a class of documents which on the grounds of public interest ought to be protected from disclosure. He also held, that, once the document belonged to the class in question, it was automatically protected from disclosure and that accordingly it was not necessary for the relevant officer to read the document and certify that its disclosure would be contrary to the public interest. Again, Davitt P. took a different view, holding that it was necessary in such a case for the relevant officer - the head of the sub-department, as he put it - to certify that production of thedocumentwould be contrary to the public interest; and in addition to specify the grounds on which he had reached that conclusion. In Simpson's case, Davitt P. held that such a certificate had not been produced, Teevan J. agreed with Dixon J. on both issues and accordingly the claim for privilege was upheld.

11

Attorney General .v. Simpson was referred to by the Supreme Court in Murphy .v. Dublin Corporation ( (1972) I.R. 215). In that ease, the Supreme Court considered the circumstances in which a claim to what is sometimes called "executive privilege" can properly arise and the manner in which the validity of such a claim, where it is contested, should be determined. That was a case in which the plaintiff, whose lands had been acquired by a compulsory purchase order made by Dublin Corporation under the procedure laid down by the Housing Act, 1966, objected to the Minister for Local Government (as he was then styled). The Minister ordered the holding of the usual public local inquiry which was conducted by an inspector of his department; and the Minister having considered the...

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