Walsh v Peters
1998 WJSC-CC 13016
THE CIRCUIT COURT
BREATHNACH V IRELAND
DPP, HANLEY V HOLLY
MURPHY V DUBLIN CORPORATION
AG V SIMPSON
Words & Phrases:
This Case involves an alleged assault wherby the Defendant is stated to have wrongfully assaulted and battered the Plaintiff on the 25th of July, 1987, at the Glen Hotel, Aherlow in the Country of Tipperary.
The matter is fully contested and the gist of the problem facing the Court relates to what may be loosely referred to as Third Party Discovery, namely, that the Plaintiff wishes to have sight of the Statements made to the Garda Siochana in the course of their investigation of the circumstances of the above matter from the point of view of the criminal law.
I have read the Submissions made in this matter by Mr. Haughton on behalf of the Plaintiff and Mr. Teehan on behalf of the Garda Siochana. The Court is indebted to both Counsel for their enormous help which greatly aids the Court in coming to its conclusion. At the outset I should like to quote a passage from the Submissions of Mr. Teehan as follows:
"It is accepted that the decision in this area of law with the greatest relevance to the instant application is that of Mr. Justice Keane in Breathnach v Ireland And The Attorney General And Others (unreported - 20th of December, 1991). It is further accepted that the onus of establishing that privilege attaches to the documentation rests with the party seeking to establish this: in this case the Gardai. It is noted that the Plaintiff has no objection to the Court reviewing the documents over which privilege is claimed; similarly the Gardai have no such objection".
For my part I have not seen the documents as yet, as I wished to establish the principle of this matter before doing so, but I must, of course, bear in mind the material contained in a quotation from the Submission of Mr. Teehan.
In the Case of the Director of Public Prosecutions (At The Suit of Superintendent Hanley v Michael Holly 1984 I.L.R.M. 149, Mr. Justice Keane was dealing with a Case stated from the District Court in a Case in which the charge was unlawful assault contrary to common law. The Defence called upon the Garda who was alleged to have been assaulted to produce his original Report in respect of the incident. The District Justice upheld the State's claim that the Report was privileged and did not require to be produced. A Case stated from the District Court to the High Court followed and the matter came on for hearing before Mr. Justice Keane, who declined to uphold a decision of the District Justice and held that executive privilege cannot be claimed in respect of a class of document as such. In the light of the principles enunciated in Murphy v Dublin Corporation 1972 I.R. 215 the claim that communications between one member of the Gardai and another are inadmissible as evidence because as a class, their admission would be against the public interest is not sustainable. He went on to find that since the State had not advanced specific grounds of possible damage to the public interest which might result from disclosure the claim to privilege should have been rejected. If specific grounds had been advanced it would be necessary for the District Justice himself to read the document privately and determine the admissibility in accordance with the principles enunciated in Murphy v The Dublin Corporation.
It follows, therefore, that the bed rock decision is the Case of Murphy v The Dublin Corporation referred to above, which is a decision of the full Supreme Court and (may I say in passing) was not concerned with the criminal law but referred to a claim of privilege by the Minister for Local Government (as he then was) in respect of documents concerned with a Planning Appeal under the Planning Code. It seems to me that the first finding of Mr. Justice Keane extends to matters both civil and criminal, but, when one comes to the second leg of the Judgment it may be essential for the Court to tread with care, lest there should be any undue or unwarranted interference with the normal course of criminal investigations as I don't think it is within the province of the Court to obstruct the Gardai in the pursuit of ??? in a criminal investigation. The concerns of the Garda Siochana are stated (apart from the Submissions of Mr. Teehan) in the Affidavit of Superintendent Kennedy where he lists three documents, namely, Statements from Sergeant O'Connell, the Defendant and a Mr. Liam Riordan and deposes that these Statements were taken by the Garda Siochana in the course of investigating the incident of the 25th of July, 1987, and the Affidavit indicates that these Statements were made and obtained by members of the Gardai on the implied understanding that they would be used only in relation to any criminal charges, which might arise out of the investigation of the alleged incident, on the ground of public policy. At paragraph 7 and 8 the Superintendent states as follows:
2 "7. I say that it would be a very undesirable development if Garda Authorities could be compelled to produce as civil Cases Statements taken by members of the Garda Siochana for the purpose of the investigation of complaints in relation to criminal matters.
8. I am of the opinion that the witnesses would be very reluctant to make any Statements to members of the – Gardai in the course of such investigation if they thought that such Statements could subsequently be used in Civil Proceedings arising out of or relating to the said incidents".
From what I have already...
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