Supreme Court dismisses appeal on discovery order, upholding High Court's refusal to produce police investigation files due to public interest privilege.

THE SUPREME COURT

Record No. 112/98

Murphy, J.

McGuinness, J.

Fennelly, J.

BETWEEN

JOHN McDONALD

PLAINTIFF

AND

RADIO TELEFIS EIREANN

DEFENDANT

AND

PATRICK CULLIGAN AND MICHAEL P. STAUNTON

NOTICE PARTIES

JUDGMENT of Mrs Justice Catherine McGuinness delivered the 25th day of January 2001

This is an appeal against the order and judgment of Geoghegan J. on the hearing of a motion by the plaintiff for further and better

discovery by the Notice Parties.

The Proceedings

In order to appreciate the significance of the issues arising on this appeal, it is necessary to summarise the background to the

proceedings themselves and to the motion which was before the High Court.

This motion forms part of a defamation action brought by the plaintiff, who claims to have been libelled in the course of a radio

broadcast entitled “Death of a Farmer” which was first broadcast on 25th April 1992 and subsequently repeated on 27th April 1992,

5th December 1992 and 7th December 1992. The subject matter of the programme was the murder in July 1991 of Thomas Oliver, a

farmer, of Cooley, County Louth. At the time the Provisional I.R.A. claimed responsibility for Thomas Oliver’s murder.

Some two years previous to Mr. Oliver’s death, in October 1989, the plaintiff, Mr McDonald, together with other persons, was arrested

by the Gardai on suspected possession of firearms at Castlecarragh, Riverstown, Dundalk. The plaintiff was arrested on lands which

had been leased to Mr Thomas Oliver, near to where an arms dump had been found by the Gardai. The plaintiff and his companions

claimed to have been out looking for a wounded calf. The plaintiff and his companions were held in custody for forty-eight hours in

Dundalk pursuant to Section 30 of the Offences Against the State Act. All those concerned were subsequently released and no

charges were brought against either the plaintiff or those who were arrested with him in connection with the incident.

The plaintiff was not named at any stage in the course of the programme broadcast by the defendants. However, in the course of an

interview with Reverend Denis Faul certain words were spoken by Fr. Faul which the plaintiff claims referred to the incident of his

arrest in 1989 and by implication connected him with the death of Thomas Oliver.

The plaintiff issued his defamation proceedings on the 7th May 1992. In his

statement of claim dated 13th May 1992 he asserts that the words used by Fr. Faul in their natural and ordinary meaning meant and

were understood to mean:-

“(a) That the plaintiff was a member of the Provisional I.R.A. a proscribed and illegal organisation;

(b) That the plaintiff was party to the murder of the late Thomas Oliver;

(c) That the plaintiff has (sic) possession and control of illegal firearms;

(d) That the plaintiff was a criminal.”

The plaintiff totally denies all these allegations and states that subsequent to the broadcast he was the victim of a wide ranging

social boycott which affected him and his family and divided the community.

In the course of the proceedings an order and cross-order for discovery were made by consent on the 10th July 1992. On the 9th

October 1992 Julian Vignoles swore an affidavit of discovery on behalf of the defendants. The plaintiff swore an affidavit of discovery

on the 13th November 1992. The defendants delivered their defence on the 30th October 1992. The defence contained a denial that

the broadcast referred to the plaintiff and denied the libellous content. Paragraph five of the defence contained a “rolled-up plea” and

paragraph six contended that the defendants had what amounted to a “public interest qualified privilege” - a duty on the part of the

defendants to impart the information in question.

Notices for particulars and replies thereto were exchanged. The proceedings were listed for hearing on the 11th May 1995.

On the 5th May 1995 the solicitors for the defendants sent a brief letter to the solicitors for the plaintiff containing additional

particulars.

When the matter was called on before the High Court on 11th May 1995 it appears that no judge was available and the case was

adjourned until the following day. The defendants had served subpoenas on a number of members of the Garda Siochana to give

evidence at the trial. These Gardai, including Superintendent Michael Staunton of Dundalk, attended at the court on 11th May. At the

request of the defendants’ legal advisors the Garda members consulted with the defendants and their counsel and solicitors. The

plaintiff’s solicitors did not request a consultation with the Garda members but observed that the consultation between the Gardai and

the defendants was taking place.

On 12th May 1995 a further brief letter containing additional particulars was sent by the defendants’ solicitors to the plaintiff’s

solicitors.

The case was listed for hearing before Kinlen J. and a jury was sworn. It appears that at this point the defendants indicated that

they wished to amend their defence so as to plead justification. Following submissions on both sides the learned trial judge gave leave

to amend the defence to plead justification. On granting leave to amend the defence however, he indicated that on the basis of the

decision of this court in Cooney v Browne [1985] IR 185 the defendants should furnish particulars grounding the defence of

justification. The defendants thereupon on the same day delivered an amended defence pleading justification together with extensive

and detailed further and better particulars which claimed inter alia that the plaintiff and his associates or some or all of them aided

and abetted the murder of Thomas Oliver. These particulars were delivered at 3.30 p.m. on 12th May 1995. In reply the plaintiff

served on the same day a further hand-written notice for particulars seeking a full statement of each and every fact to be relied on

by the defendants and also giving notice of an intention to seek further and additional discovery. Still on the same day the

defendants responded with a lengthy hand-written reply to particulars setting out the facts to be relied upon. At this stage it appears

that the parties accepted that on account of the amended and additional pleadings the substantive trial of the action could not

proceed and it was adjourned. The order adjourning the trial was made by Kinlen J. on 16th May 1995. In addition to adjourning the

matter the learned judge in his order granted the defendant liberty to serve an amended defence to include a plea of justification and

granted the plaintiff his costs of the day.

Subsequently the solicitors for the plaintiff sought voluntary discovery by the defendants of all documents grounding the amended

plea of justification and the additional particulars served on 12th May 1995. A limited number of documents were produced by the

defendants who stated that they had no further documents in their possession or power.

On 27th November 1995 the plaintiff issued a notice of motion seeking third party discovery against the notice parties, seeking, in

summary, full Garda documentation in connection with the arrest of the plaintiff in October 1989 and any contact between the Gardai

and the defendants. On 4th March 1996 following a full hearing of the motion an order for discovery was made by Geoghegan J. in the

terms of the notice of motion brought by the plaintiff. An affidavit of discovery was sworn by the second named notice party

Superintendent Michael P. Staunton. In this affidavit he discovered and was willing to produce a number of documents, in particular

Garda statements, in connection with the arrest of the plaintiff in October 1989. Under the heading of public interest privilege he

objected to producing a number of other Garda documents which formed part of what he described as the “McDonald Arrest File” and

also objected to producing any document from what is described as the “Oliver File”. This was the file regarding the abduction and

murder of Thomas Oliver which included Garda investigation reports, Garda statements, internal Garda correspondence and

memoranda, witness statements and statements of experts made with a view to furthering the Garda investigation. Under this

heading he also objected to producing certain internal Garda correspondence. Under the heading of Legal Professional Privilege

Superintendent Staunton objected to producing correspondence between the Gardai and the Office of the Chief State Solicitor,

correspondence with the Office of the Attorney General, and correspondence written in contemplation of litigation.

On 18th February 1997 the plaintiff by notice of motion sought further and better discovery as against the notice parties and in

particular sought to challenge the claim to

public interest privilege made by Superintendent Staunton. This application for further and better discovery was heard by Geoghegan

J. on 18th and 19th March 1998. A transcript of the hearing on the afternoon of 18th March and the full day of 19th March has been

provided for this court. In challenging the public interest privilege claimed by the notice parties counsel for the plaintiff firstly

submitted that the notice parties had waived any privilege which they might have had by disclosing either the documents or the

matters contained therein to the defendants. If, however, the court held that there had been no waiver, it was submitted that public

interest privilege did not apply to the documents. The learned trial judge held that no waiver had occurred and agreed to read the

documents contained in the McDonald Arrest File and the Oliver File together with other documents which were claimed to be covered

by legal professional privilege. Subsequent to the reading of the documents Geoghegn J. gave an ex-tempore judgment on 3rd April

1998, an agreed note of which has been provided to this court. The learned judge firstly held that certain documents which he had

read were covered by legal professional privilege and should not be produced. His decision in this aspect of the matter has not been

appealed. In regard to the Oliver File and the McDonald Arrest File the learned judge stated:-

“Moving to what is really in contention, the Oliver File and the McDonald Arrest File, the first question I have to consider is

whether public interest privilege has been pleaded and whether that has been waived. If it is being waived of course that is

the end of the matter and I should not have to read the document at all, because if they are waived they must be produced.

I accept the submissions made by Mr McDonagh, both on the facts and on the law, to the effect that there has been no

waiver here. I do not agree that the evidence in any way establishes, even as a matter of probability, that there was a

disclosure of documents belonging to the Guards or that the contents of such documents were communicated at dictation

speed by the Guards to the defendants and/or Messrs Eugene F. Collins & Son in the course of a consultation at the Four

Courts. It seems to me, on the contrary, more likely that what took place between the Guards and the defendant and Messrs

Eugene F. Collins & Son at the consultation held at the Four Courts was in the nature of conversations, no doubt, however,

based on the Guards looking at their own files. But I do not think there is any conflict on the part of the Guards in relation to

what they did disclose which could be interpreted or could constitute waiver.

Even if you can waive in respect of public immunity and, of course, there has been some legal controversy about that, as we

know from the passages that have been opened in Matthews and Malek, and I see the point that where one is talking about

the concept of public law there is in this instance a clash of two public interests, the public interest in the detection of crime

as against the public interest in the due administration of justice and the plaintiff having a fair hearing. Those public interests

can collide and it seems doubtful to me whether the principle on waiver would apply at all in this instance.”

Geoghegan J. went on to state that as far as the McDonald Arrest File was concerned the following documents should be

discovered:-

“The Garda statements as contained in the McDonald Arrest File should be furnished to the plaintiff, but with the deletion of

any name other than that of the plaintiff. The Garda statement as contained in the McDonald Arrest File are those numbered

105, 106, 107, 108, 109 and 100 and should include the opinion expressed by the various members of the Gardai. In addition

the documents as referred to at pages 55, 56 and 61 of the McDonald Arrest File ought to be disclosed.”

In relation to the Oliver File the notice parties had objected to any disclosure from this file on the grounds that it was a continuing

criminal investigation. Geoghegan J. held that four items should be disclosed from that file, firstly items 18 and 19 which he describes

as being two reports of Dr. Shelia Willis, forensic scientist and secondly items Nos. 22 and 24. Geoghegan J. went on to state:-

“The balance of the Oliver File contains documents which are not relevant and others which I am quite satisfied are covered

by public interest privilege.”

The order of the High Court made on 3rd April 1998 provides as follows:-

“IT IS ORDERED:

(1) That the notice parties do make discovery on oath of

(a) forensic report witness L - document 13A of the Index to the Oliver File;

(b) account of movements of John McDonald - document 22A of the Index to the Oliver File;

(c) memo re I.R.A. admission concerning murder of Thomas Oliver - document No 24A of the Index to the Oliver

File;

(d) all telephone messages between them and R.T.E. and the media generally;

(e) all Garda statements in relation to the McDonald File referred to in the first schedule to the affidavit of Michael

Staunton sworn the 24th day of July 1996 in full save that the name of any person other than the plaintiff should

be deleted;

(f) all statements at pages 105, 106, 107, 108, 109, 110 and documents at pages 55, 56 and 61 of the McDonald

File - the said affidavit to be made by Michael Staunton within 21 days within which period the documents referred

to above should also be produced to the plaintiff;

(2) that the Eugene f. Collins, Solicitors, papers do not have to be produced as same or privileged;

(3) that the plaintiff do pay to the notice parties the costs of this motion and order when taxed and ascertained;

(4) that execution on foot of the order for costs be stayed pending the final determination of the action herein.”

The plaintiff has appealed to this court by notice of appeal dated the 15th day of May 1998. The grounds of appeal as set out in this

notice are as follows:-

(a) The learned trial judge was wrong in law in failing to hold that the disclosure of the Oliver File and the McDonald Arrest File

and/or the contents of the said files by the notice parties their servants or agents to third parties in particular the defendants

their servants or agents herein was in breach of Section 2 of the Official Secrets Act 1963;

(b) The learned trial judge was wrong in law in failing to hold that such privilege and/or confidentiality that may have attached

to the Oliver File and the McDonald Arrest File (which is denied) was lost and/or abandoned by the notice parties their servants

or agents in breach of Section 2 of the Official Secrets Act 1963 in the manner set out at (a) above;

(c) The learned trial judge was wrong in law in failing to hold that the disclosure of the Oliver File and the McDonald Arrest File

and/or the contents of the said files by the notice parties their servants or agents to third parties in particular the defendants

herein was an express and/or implied waiver of all privilege and/or confidentiality (which is denied) that may have attached to

such files and/or the contents therein;

(d) The learned trial judge was wrong in law in failing to hold that waiver of privilege and/or confidentiality to part or parts of

the Oliver File and/or the McDonald Arrest File and/or the contents of the said files constituted a waiver of privilege and

confidentiality to the entire of the said files and thereby that the plaintiff was entitled to discovery of the entire of the said

files;

(e) The learned trial judge was wrong in law in holding that the notice parties had discharged the burden of satisfying the

court that the balance of the Oliver file and/or the McDonald Arrest File as not ordered to be discovered by the High Court

order herein were privilege documents;

(f) The learned trial judge was wrong in law in holding that the plaintiff was entitled only to partial discovery of the Oliver File

and the said McDonald Arrest File as more particularly detailed in the High Court order the subject matter herein.”

There appears to be an error in the drafting of this notice of appeal at paragraphs (a) and (b), since Section 2 of the Official Secrets

Act 1963 is the definition section. It appears probable that the reference should be to Section 4 of the said Act which provides at

subsection (1):

“A person shall not communicate any official information to any other person unless he is duly authorised to do so or does so

in the course of and in accordance with his duties as the holder of a public office or when it is his duty in the interest of the

State to communicate it.”

However, it does not appear to me that this error is of any great significance since the issue of breach of the Official Secrets Act,

while mentioned by counsel for the plaintiff at the hearing before this court, did not assume any great significance as an issue before

the court. As appears to have been the case during the hearing in the High Court, the documents chiefly in issue were those

contained in the McDonald Arrest File and the Oliver File. Two main issues were argued before the court: firstly whether the notice

parties had waived any privilege which might attach to the relevant documents by their action in giving information to the defendants

at the consultation on 11th May 1995, and secondly whether all or any of the documents contained in these files were covered by

public interest privilege.

Submissions of Counsel

Senior Counsel for the plaintiff, Mr McMenamin, submitted that it could be clearly inferred from the new particulars served by the

defendants on 12th May 1995 and from their reply to the plaintiff’s notice for further and better particulars of the same date that the

defendants had had sight, and possibly temporary possession, of the documents contained in the Oliver File and the McDonald Arrest

File. Their new pleadings were inconsistent with their original particulars and contained many new detailed allegations which could only

have stemmed from perusal of the Garda files. At the very least the Gardai must have read sections of the files to them at dictation

speed during the consultation on 11th May 1995. The Gardai had given to the plaintiff extracts from a document popularly known as

the “Green Book” which is believed to be a training manual for the Provisional I.R.A. Mr McMenamin noted that possession of this

“Green Book” can in itself be a criminal offence.

Mr McMenamin submitted that by their action either in giving the relevant files to the defendants’ legal advisers or in transmitting the

contents of the files to them the notice parties had waived any public interest privilege they might otherwise have asserted in the

documents.

In the alternative counsel for the plaintiff argued that, given that the plea of justification was grounded on the disclosure of the

contents of Garda files within the custody, control and possession of the notice party, any alleged or apparent conflict between the

public interest in the investigation of the abduction and murder of Thomas Oliver and also the public interest in the detection,

suppression and prosecution of subversive crown in general on the one hand, and the administration of justice and the need for the

plaintiff to have a fair hearing on the other hand must be resolved in favour of the latter and thus discovery of the two Garda files

should be ordered. In this context he referred to the cases of Murphy v Corporation of Dublin [1972] IR 215, Breathnach v Ireland

(No. 3) [1993] 2 IR 458 and Logue v Redmond [1999] 2 ILRM 498.

Following the guidelines set in these three cases, Mr McMenamin submitted, it would be for the courts to decide, having inspected the

documents in question, whether, in the case of each individual document, it should be discovered or alternatively withheld on the

ground of public interest privilege. As was stated by Keane J. in Breathnach v Ireland (No. 3) (at page 469) the court “is required to

balance the public interest in the proper administration of justice against the public interest reflected in the grounds put forward for

nondisclosure...” The plea of justification in the instant case was effectively an allegation of murder against the plaintiff. This meant

that the present civil proceedings took on the character of a criminal trial; as a result the plaintiff should be provided with all the

documentation which would normally be available to him as an accused person in a criminal trial. All potentially relevant material

should be available to him. Where there was any doubt as to whether he was entitled to any such potentially relevant material this

doubt should be resolved in favour of the plaintiff.

Counsel for the plaintiff finally submitted that should the court hold that the public interest privilege plea as advanced by the notice

party should be accepted, then such particulars grounding the plea of justification which emanated from or were based on the

disclosure of the contents of the two Garda files or the production of copy documents therefrom should be struck out. If there was a

public interest immunity covering these documents that immunity must affect what a court could permit as admissible evidence on the

hearing of the action. Counsel referred in this context to the case of Burke v Central Independent Television PLC [1994] 2 IR 79. In

that case this court had accepted that certain documents should not be disclosed because their disclosure would represent a threat

to the life of certain persons. However in exercising the inherent jurisdiction of the court to do justice between the parties the court

had struck out the defendants defence of fair comment, where that defence would have relied on the admission of evidence stemming

from the documents in question.

Senior Counsel for the notice parties, Mr McDonagh, submitted that the grounds of appeal as set out in the plaintiff’s notice of appeal

appeared to presuppose that the learned trial judge had held that what had occurred on 11th May 1995 had amounted to a disclosure

of the Oliver File and the McDonald Arrest File and/or the contents of those files. There had been no such findings. On the contrary

Geoghegan J. had found that nothing took place between members of An Garda Siochana and Radio Telefis Eireann and their solicitors

at the consultation held at the Four Courts on that day which could constitute a disclosure of documents belonging to the Gardai or

even that the contents of such documents had been communicated at dictation speed by the Gardai to R.T.E. and their solicitors.

This was a finding of fact by the learned trial judge and should not be disturbed.

Mr McDonagh went on to refer to a number of English authorities on the question of whether it lay in the power of the notice parties

to waive a public interest immunity. He submitted that this type of immunity was there to protect the public as a whole and that it

was not open to members of the Garda Siochana, or indeed the State itself, to waive that immunity in any way. He referred to the

speech of Lord Simon of Glaisdale in R. v Lewes Justices Ex Parte Secretary of State for Home Department [1981] Q.B. 736 at 407:-

“It is true that the public interest that demands that the evidence be withheld has to be weighed against the public interest in

the administration of justice. That courts should have the fullest possible access to all relevant material....but once the form

of public interest is held to outweigh the latter, the evidence cannot in any circumstances be admitted. It is not a privilege

which may be waived by the Crown (see Marks v Beyfuss at page 500) or by anyone else.”

The same position had been taken by the English Courts in Hehir v Commissioner of Police of the Metropolis 2 WLR 715 and Air

Canada and Others v Secretary for State for Trade [1983] 2 AC 394. While there did not appear to be any authority in this

jurisdiction for the position taken by the English Courts Mr McDonagh submitted that it was a logical and persuasive approach.

Mr McDonagh pointed out that the learned trial judge had read both of the files which were in controversy. He had directed that the

Garda statements contained in the McDonald Arrest File should be furnished to the plaintiff with the deletion of any names other than

that of the plaintiff. The plaintiff had in fact been previously supplied with these Garda statements but the opinion of the Gardai that

the plaintiff was an active member of the Provisional I.R.A. had been deleted from them. The plaintiff was now to be given the full

statements in addition to a number of other documents from that file. As far as the extract from the “Green Book” was concerned,

this had already been given to the plaintiff’s solicitors both by the defendants and by the notice parties. In addition the plaintiff had

also been given the custody records of his detention in Dundalk Garda Station.

Mr McDonagh said that he had, of course, no objection to this court reading both files with a view to making a decision as to the

discoverability of the documents contained therein. However, he stressed that the Oliver File, which related to the investigation of

the murder of Thomas Oliver, was still an active file with the murder still under investigation. It was a fact that the Provisional I.R.A.

had claimed responsibility for the murder of Thomas Oliver. It was clear both from the discovered statements and from the affidavits

of the Gardai that the Gardai believed that the plaintiff was a member of that organisation. Any member of such an organisation would

be interested to know both what was in the file covering the investigation of the murder and what was not in the file.

Mr McDonagh agreed that the law in this jurisdiction in regard to discovery and claims of privilege had been set out in the cases of

Murphy v Dublin Corporation IR 215 and Breathnach v Ireland (No. 3) [1993] 2 IR 458. He referred also to the judgment of this court

in Ambiorix Limited and Others v The Minister for the Environment and Others (1) [1992] 1 IR 277 and also the judgment of this

court (Keane J.) in Skeffington v Rooney and Others (Supreme Court unreported 13th March 1997). In the majority of these cases the

court was dealing with purely civil matters. In Murphy v Dublin Corporation Walsh J. in his judgment had stressed that the court was

not in that case concerned with considerations that might arise in a criminal case. He stated at page 233 of the report:

“The court has not to review the considerations which might arise if in the course of a criminal prosecution an effort was

made to obtain the disclosure of communications passing between members of the police force or from informants to the

police and, on the other side of the coin, it is not necessary to examine the considerations which might arise in a criminal

prosecution where the refusal to disclose certain evidence relevant to the trial could result in the condemnation of an innocent

accused.”

In this case, as in the Breathnach case the documents sought to be discovered related exclusively to criminal proceedings. In the

Breathnach case the criminal proceedings were at an end before the civil proceedings came into being. In the present case, while the

plaintiff’s proceedings are civil in nature, the Oliver File deals with an active and continuing criminal investigation which is aimed at

bringing the murderer of Thomas Oliver to justice. To make such documents discoverable, particularly in the situation where certain

persons had given information to the Gardai on an assurance of confidentiality, would create an almost impossible situation in the

investigation of crime.

The notice parties had no objection to discovering the documents which had been ordered to be discovered by the learned trial judge

and they had not appealed against his order. However, they were strongly opposed to any further disclosure.

Conclusions

At the hearing before this court, the issue of discovery was confined to the documents contained in the two Garda files - the “Oliver

File”, which deals with the Garda investigation of the murder of Thomas Oliver in 1991, and the “McDonald Arrest File”, which deals

with the arrest of the plaintiff on suspicion of possession of firearms in October 1989.

The first issue that arises is whether the actions of members of the Garda Siochana at their consultation with the defendants and

their solicitors on 11th May 1995 constituted a waiver of any public interest privilege that might exist concerning the various

documents contained in the two Garda files.

The learned trial judge, on the evidence that was before him, held that no such waiver had occurred. The evidence that was before

the High Court was on affidavit; no oral evidence was brought and no cross-examination on the affidavits took place. The situation is

not, therefore, in my view covered by the decision of this court in Hay v O’Grady [1992]1 IR 210. However, considerable respect must

be paid to the view held by the learned and experienced High Court judge.

The evidence which was before the High Court is also before this court. In his affidavits the solicitor for the plaintiff, Mr McGuill,

deposes to the fact that he observed discussions taking place at the Four Courts on the 11th May 1995 between the Gardai and the

defendants and their solicitors. Since Mr McGuill practices in the Dundalk area, he personally recognised the Gardai concerned. Other

than that, the plaintiff relies on inferences to be drawn from the new information contained in the two sets of particulars served by

the defendants on the plaintiff on the 12th May 1995.

The notice parties rely on the affidavit of Superintendent Michael P. Staunton, who was present with the other Gardai in the Four

Courts on 11th May. He avers as follows:

“A number of members of an Garda Siochana from Dundalk were subpoenaed to attend in the High Court in Dublin on 11th May

1995 for the trial of the plaintiff’s action against the defendants. At the request of the defendants’ legal representatives the

members consulted with the defendants and its legal representatives. The plaintiff's solicitors did not request a consultation

with the members (including me, your deponent). No documents were furnished to legal representatives of the defendants at

the said consultation on 11th May 1995 or at any other time other than copies of what is commonly called the “Green Book”

and which is a Provisional I.R.A. training manual. I say and believe that by letter dated 7th July 1995 I wrote to the plaintiff’s

solicitors enclosing a copy of the extract from the “Green Book” which has been furnished to the defendants’ representatives

on 11th May 1995 and copies of the records concerning the plaintiff’s custody between 9th and 11th October 1989. I further

confirmed that custody records relating to the plaintiff’s detention between 22nd and 24th July 1991 were furnished to the

plaintiff’s solicitors also at this stage.......I confirm, therefore, that apart from the extracts from the “Green Book” no other

documents were furnished nor were copies shown by the members of An Garda Siochana to the defendants’ representatives

contrary to the allegations made by Mr McGuill at paragraphs 5 and 10 of his affidavit.”

Superintendent Staunton was not cross-examined on his affidavit.

It is accepted that certain Gardai spoke to the defendants and their legal representatives on the 11th May, the date on which the

proceedings were originally listed for hearing. The learned trial judge very reasonably assumed that at least some of these Gardai may

have referred to their files in replying to questions. It must be borne in mind, as was pointed out by Mr McDonagh during the course of

his submissions, that these Gardai were personally involved in the events surrounding Mr McDonald’s arrest in October 1989 and in the

investigation of Mr Oliver’s murder. They therefore could give evidence regarding these events from their own knowledge. They were

appearing as witnesses under subpoena.

There is, of course, no doubt that the particulars served by the defendants on the 12th May contain a considerable amount of new

information. It is more than probable that the source of this information was the consultation with the Gardai. There is, however, no

evidence other than inference to establish that the Gardai gave any or all of the documentation (other than the Green Book extracts)

contained in the two files in question to the defendants or their legal advisers; nor is there evidence other than inference that they

read out the files “at dictation speed”. In my view, therefore, the learned trial judge was correct in finding on the evidence that

neither of these events happened.

I also consider that the trial judge was correct in holding that the participation by the Gardai, who were witnesses under subpoena, in

a consultation of the kind described, even if some reference to the files was made by the Gardai, does not amount to a waiver by the

notice parties of any public interest privilege which may attach to the documents in question.

The second issue, therefore, arises as to whether the documents contained in the Oliver File and the McDonald Arrest File are in fact

immune from discovery through what is generally called “public interest privilege”. It is for the court, as the judicial power, to make

the decision as to what documents are privileged from disclosure. This was clearly stated by Walsh J. in this court in Murphy v

Corporation of Dublin [1972] IR 215. At page 233 of the report the learned judge stated:-

“Under the Constitution the administration of justice is committed solely to the judiciary in the exercise of their powers in the

courts set up under the Constitution. Power to compel the attendance of witnesses and the production of evidence is an

inherent part of the judicial power of Governments of the State and is the ultimate safeguard of justice in the State. The

proper exercise of the functions of the three powers of Government set up under the Constitution, namely, the legislative, the

executive and the judicial is in the public interest. There may be occasions when the different aspects of the public interest

“pull in contrary directions” - to use the words of Lord Morris of Borth-y-Gest in Conway v Rimmer. If the conflict arises during

the exercise of the judicial power then, in my view, it is the judicial power which will decide which public interest shall prevail.

This does not mean that the court will always decide that the interest of the litigant shall prevail. It is for the court to decide

which is the superior interest in the circumstances of the particular case and to determine the matter accordingly.”

However, in the context of the facts of that case, Walsh J. also stated (at page 233):-

“The action in which the present question arises is a civil suit inter partes, one of the parties being the Minister for Local

Government. Therefore, the court has not to review the considerations which might arise if in the course of a criminal

prosecution an effort was made to obtain the disclosure of communications passing between members of the police force or

from informants to the police and, on the other side of the coin, it is not necessary to examine the considerations which might

arise in a criminal prosecution where the refusal to disclose certain evidence relevant to the trial could result in the

condemnation of an innocent accused.”

He also pointed out that “a case such as the present one is far removed from the considerations which would apply in matters

concerning the safety or security of the State.”

The principles laid down by Walsh J. in the Murphy case were re-emphasised and codified in numbered paragraphs by Finlay C.J. in this

court in Ambiorix Limited v Minister for the Environment (No. 1) [1992] 1 IR 277 at 283:-

“1. Under the Constitution the administration of justice is committed solely to the judiciary by the exercise of their powers in

the courts set up under the Constitution.

2. Power to compel the production of evidence (which, of course, includes the power to compel the production of documents)

is an inherent part of the judicial power and is part of the ultimate safeguard of justice in the State.

3. Where a conflict arises during the exercise of the judicial power between the aspect of public interest involved in the

production of evidence and the aspect of public interest involved in the confidentiality or exemption from production of

documents pertaining to the exercise of the executive powers of the State, it is the judicial power which will decide which

public interest shall prevail.

4. The duty of the judicial power to make that decision does not mean that there is any priority or preference for the

production of evidence over other public interests, such as the security of the State or the efficient discharge of the functions

of the executive organ of Government.

5. It is for the judicial power to choose the evidence upon which it might act in any individual case in order to reach that

decision.”

Both the cases to which I have referred were purely civil proceedings. The instant case is also, of course, a civil action for

defamation, but the documents sought be discovered arose from criminal investigations by the Garda Siochana. A somewhat similar

situation was considered by Keane J. (as he then was) in Breathnach v Ireland (No. 3) [1993] 2 IR 458. In that case the plaintiff,

following the quashing by the Court of Criminal Appeal of his conviction on a charge of armed robbery, brought proceedings against

the defendants claiming damages for assault and battery, false imprisonment and a number of other torts. The High Court made an

order for third party discovery directing the Director of Public Prosecutions to discover communications between members of the

Garda Siochana in the months of March and April 1976. The Director of Public Prosecutions claimed public interest privilege in respect

of certain of the documents. In a comprehensive judgment Keane J. in the High Court dealt with both the issue of the role of the

court in inspecting documents where public interest privilege had been claimed and the balancing test which should be applied by a

court inspecting such documents. At page 467 of the report the learned judge stated:-

“Having considered these arguments and the authorities referred to by counsel, I have come to the following conclusions as to

the legal principles which I should apply in dealing with the present application.

A party is entitled to the production and inspection of documents in the possession, custody or power of a person who is not a

party to the proceedings where the documents are relevant to an issue arising or likely to arise out of the proceedings. This

power was conferred for the first time by Order 31 Rule 29 of the Rules of the Superior Courts 1986 and it is clear that in

deciding whether to make an order the same principles apply as in applications for discovery against parties to the

proceedings. The principal was thus stated by Brett L.J. in Compagnie Financière du Pacifique v The Peruvian Guano Co. (1882)

11 QBD 55 at page 63 in a passage which has frequently been cited with approval:

‘It seems to me that every document relates to the matters in question in the action, which would not only be evidence

upon any issue, but also which, it is reasonable to suppose, contains information which may - not which must - either

directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his

adversary. I have put in the words ‘either directly or indirectly’, because, as it seems to me, a document can properly

be said to contain information which may enable the party requiring the affidavit either to advance his own case or to

damage the case of his adversary, if it is a document which may fairly lead him to a train of enquiry, which may have

either of those two consequences.......’

It had at one time been the law that there were classes of documents which by their nature were wholly protected by

the doctrine of executive privilege and thereby protected from scrutiny by a court even for the purpose of determining

whether a claim for privilege arose at all. That view of the law has been unequivocally rejected by the Supreme Court in

the triad of cases already referred to as being inconsistent with the exclusive administration of justice by the judicial

organ of Government under the Constitution. Each of those cases was a civil case, as is the present. In the present

case, however, the documents sought to be discovered relate exclusively to criminal proceedings.”

The learned judge went on to refer to the judgment in Murphy v Dublin Corporation and to a number of other cases including the

Ambiorix case. He summarised the arguments made by the Director of Public Prosecutions asserting privilege in the documents. He

went on to say (at page 469):-

“That is not to say, of course, that the court, in deciding whether it should proceed to an inspection of the documents, should

disregard the matters referred to by Mr Liddy. (Counsel for the DPP). On the contrary, the court, as I understand the law, is

required to balance the public interest in the proper administration of justice against the public interest reflected in the

grounds put forward for nondisclosure in the present case. The public interest in the prevention and prosecution of crime

must be put in the scales on the one side. It is only where the first public interest outweighs the second public interest that

an inspection should be undertaken or disclosure should be ordered. In considering the first public interest, it is necessary to

determine to what extent, if any, the relevant documents may advance the plaintiff’s case or damage the defendant’s case or

fairly lead to an enquiry which may have either of those consequences. In the case of the second public interest, the various

factors set out by Mr Liddy must be given due weight. Again, as has been pointed out in the earlier decisions, there may be

documents the very nature of which is such that inspection is not necessary to determine on which side the scales come

down.”

There is, therefore, considerable and weighty authority for the inspection by this court of the documents at issue in the instant case,

and for the balancing by the court of the interest involved, in order to ascertain which, if any of them, should be discovered and

subsequently inspected by the plaintiff. In the event, the documents had been inspected by the learned High Court judge and Mr

McDonagh on behalf of the notice parties indicated that he had no objection to this court also inspecting them.

In considering the documents, it is important to assess whether they are in fact relevant to the present proceedings in addition to

operating the balance of the two types of public interest as set out by Keane J. above. Relevance must be assessed in accordance

with the well known standards set out in the Peruvian Guano case as quoted above; does the document in question contain

information which may directly or indirectly enable the plaintiff either to advance his own case or to damage the case of the

defendants, including the concept of leading to a “train of enquiry”. It is clear, in my view, that this court should examine both the

Oliver File and the McDonald Arrest File bearing these considerations in mind.

I have accordingly inspected the documents in the form in which they were handed in to this court at the close of the hearing for the

purpose of deciding which, if any, should be produced for inspection. I will deal firstly with the documents contained in the McDonald

Arrest File. As has been pointed out by the learned trial judge many of the documents on this file are included in Part 1 of the first

schedule to Superintendent Michael Staunton’s affidavit of discovery sworn the 24th July 1996 and have already been produced. As

regards the documents for which public interest privilege is claimed under Part II of the first schedule of Superintendent Staunton’s

affidavit I would uphold the decision of the learned High Court judge that the full text of the Garda statements which are numbered

15, 16, 17, 18, 19 and 20 in the schedule to the affidavit, which are documents numbered 105, 106, 107, 108, 109 and 110 in the file

handed into this court, should be produced but subject to the deletion therefrom of all names other than that of the Plaintiff. I would

also agree with Geoghegan J. that the letter at number 4 of Part II of the schedule to the affidavit of discovery which is document

No. 55 in the file as handed into the court should be produced as should the letter at No. 5 (document no. 56) and the letter at No. 8

(document no. 61).

In the judgment of Geoghegan J. delivered on the 3rd April 1998 he next refers (at page 5) to two reports of Dr. Sheila Willis, Forensic

Scientist, as being items 18 and 19 in the Oliver File and holds that they should be produced. These documents are not included in

the Oliver File as handed into this court. Numbers 18 and 19 on that file are quite different documents; in my view both are covered

by public interest privilege.

In the affidavit of discovery sworn in the customary form by Superintendent Staunton on the 24th July 1996 he lists in the first

schedule the documents in his possession or power relating to the matters in question in the suit. In the first part of the first

schedule are listed the documents which he has no objection to producing. These include at numbers 18 and 19 two undated

statements by Dr. Sheila Willis, Forensic Scientist. It seems to me that these are the only documents in any part of the affidavits of

discovery in this case which accord with the description given by the learned High Court judge in his judgment. Since they are

included in the first part of the first schedule, there does not appear to be any need for this court to make an order for their

production. They may, indeed, have already been produced. It is no doubt on this account that they do not appear on either of the

files handed into this court, since these files contain only documents over which a claim of privilege has been raised by the notice

parties.

With regard to the Oliver File as handed into this court it seems to me that, before considering the issue of public interest privilege at

all, the vast majority of the documents on this file are irrelevant to the plaintiff’s case or to the defendants’ case as judged by the

standards set out in Peruvian Guano. In addition the file has been assembled in connection with the investigation of a criminal offence

of abduction and murder which on the evidence before the court is still a live investigation. I would accept the submission of Mr

McDonagh that in such a situation it might be of interest to various persons to discover not only what was on the file but what was

not on the file. It seems to me that in principle it would be injurious to the public interest to bring some of the relevant documents

into the public arena through the means of discovery. There are however a number of documents on the file which clearly ought to be

produced to the plaintiff. I note that the numbering in the file as handed into this court seems to differ in some ways from the

numbering which was given to the learned High Court judge. In the file as handed into this court the documents which should be

discovered are No. 22 which is entitled “Account of Movements of John McDonald given to D/Sgt. Gannon on 23/7/1991”, No. 24

headed “Urgent for attention of Dan Prunty (as requested)” and No. 28 which is a copy of a newspaper extract giving an account of

the inquest into the death of Mr Oliver. The remainder of documents on this file should not be produced.