214 / 262
"In the last resort the decision lies with the courts so
long as they have seisin of the case. The exercise of the
judicial power carries with it the power to compel the
attendance of witnesses and the production of evidence
and,
a fortiori
the answering of questions by witnesses.
This is the ultimate safeguard of justice in the State,
whether it be in pursuit of the guilty or the vindication
of the innocent.
"The judgment or the wishes of the witness shall not
prevail. This is the law which governs claims for privi-
lege made by the executive organs of the State or by
their officials or servants and journalists cannot claim
any greater privilege.
"The obligation of all citizens, including journalists,
to give relevant testimony with respect to criminal
conduct does not constitute a haras ment of journalists
or other newsmen. In the present state of the criminal
law, a journalist concealing knowledge of criminal facts
like any other person in a similar position, might well
find himself guilty of misprision of felony where a
felony was concerned.
Even if the question of confidence arose here, which it
did not because, for the reasons already stated, the
identity of the person being interviewed was an essen-
tial part of the publication, the claim of privilege to
refuse to answer the question was unsustainable in law
although made in good faith. However, Mr. O'Kelly
persisted in his attitude when the Court had very
patiently explained the position to him. He wa^, in the
opinion of this Court, rightly convicted of contempt of
Court and in fact has not appealed against that convic-
tion.
"The views expressed by the Court may be of assis-
tance to journalists and Courts dealing with this mat-
ter in the future. In reviewing the sentence the Court
has regard, of course, to the fact that Mr. O'Kelly
sought to be as helpful as he could, subject to the
privilege which he claimed, but must also bear in mind
the fact that he persisted in maintaining this attitude
when the position had been fully explained to him
and he had been given every opportunity to reconsider
the position.
"In all the circumstances the Court thinks
that the sentence of imprisonment should be quashed
and in lieu thereof a fine should be imposed.
"The order of the Court, therefore, will be that Mr.
O'Kelly will pay a fine of £250 and in default of pay-
ment of this fine by Mr. O'Kelly into the office of this
Court on or before the 30th day of September he will
serve a sentence of three months imprisonment but in
such event the time already spent by Mr. O'Kelly in
serving the sentence imposed on him by the Special
Criminal Court will be taken into account. The order
of the Court will therefore be that the appeal is allowed
in the terms already stated."
Mr. Justice Murnaghan and Mr. Justice Gannon
were the other members of the Court.
[Attorney-General v O'Kelly;
The Irish Times,
31
July 1973.]
District Justice has jurisdiction to say whether proceed-
ings should continue if told that some point is
going to be decided by the Supreme Court.
This was an application to make absolute a condi-
tional order of
certiorari
granted against the defendant
Justice, on the ground that the Justice must exercise
his discretion, by granting the adjournment requested.
As was decided by the Supreme Court in
The State
(A.-G.)
v Justice Mangan
(1961) Ir. Jur. 71, that where
a Justice has properly acted within his jurisdiction, his
decision will not be interfered with. There it was held
that the Justice had jurisdiction to grant an adjourn-
ment—but he also has jurisdiction to refuse it. As
Murnaghan J. stated, it would be acting outside his
jurisdiction, if he were to reverse the practice that has
been previously adhered to. Accordingly the conditional
order was discharged, and the cause shown allowed.
Per Murnaghan J. : "There are some indications that
the Bar generally for some time past do not regard judg-
ments of the High Court with the respect which they
deserve. There is not a presumption that a judgment of
the High Court is wrong. A District Justice being made
aware that there is a decision of the High Court should
not assume that such decision will be reversed by the
Supreme Court."
[The State (Llewellyn) v District Justice Ua Donn-
chada; Murnaghan J.; unreported; 3 May 1973.]
There is no power in the Local Government (Planning
and Development) Act 1965 to acquire land com-
pulsorily for the purpose of development or for the
provision of amenities.
On 27 June 1968, defendant County Council made a
compulsory purchase order in respect of a tiny piece of
land consisting of seashore above high water mark near
Spiddal. The order making this effective referred to the
Housing Act 1966 and the Planning and Development
Act 1965. The defendants sent this order to the Minister
for Local Government for confirmation on 22 July 1968.
On 25 July 1968 the plaintiffs, who owned the land
adjoining, lodged objections. The main ground was that
the defendants were not authorised, by law, to acquire
the lands compulsorily for the purpose of "development
as an open space, and for use in connection with the
amenities of the area". The Minister, having held a
public inquiry, duly confirmed the order on 23 December
1969. The plaintiffs then brought proceedings under
Section 78 of the Housing Act 1966 for the purpose of
having the order quashed.
The plaintiff alleges that the order was not made
bona fide
by defendants in the exercise of their powers
of compulsory acquisition, but no evidence was adduced
to sustain this. The issue, therefore, is whether a local
authority, who are also the planning authority, are
authorised to acquire lands compulsorily for the pur-
pose of development or for the provision of amenities
under the Planning and Development Act 1965. In
that Act, "development" is fully defined in Section 3.
As there is nothing specifically in the fact which auth-
orises such compulsory acquisition, it follows that the
procedure adopted was incorrect. Powers of compulsory
acquisition must be created by clear language, and are
not to be implied. Accordingly the plaintiffs contention
is correct, and the Compulsory Purchase Order will be
quashed.
[Movie News Ltd. v Galway County Council; Kenny
J.; unreported; 30 March 1973.]
Dublin Corporation lose appeal against £302,433 judg-
ment—malicious injuries.
Mr. Justice Pringle, in
a
reserved judgment, delivered
in the High Court yesterday, dismissed an appeal from a
Circuit Court judgment, by the Dublin Corporation,
211