A JOURNALIST, Mr Barry O'Kelly, was told yesterday by a judge that unless he divulged his source of information for a story about a confidential court settlement he would be imprisoned until he did so. The judge will make a decision today.
Mr O'Kelly, who works for the Star, was described as the key witness in an alleged breach-of-contract claim for damages by a former employee of the Garda Representative Association, Ms Nicola Gallagher, against the association.
Mr Seamus Woulfe, counsel for the GRA, said the association denied publishing or causing to be published any details of the settlement agreement in any newspaper.
Alternatively if it did, which was denied, Ms Gallagher had suffered no loss as a result.
Mr Colman Fitzgerald, counsel for Ms Gallagher, told Judge James Carroll in the Circuit Civil Court yesterday he had subpoenaed Mr O'Kelly to give evidence.
Mr O'Kelly had indicated to his instructing solicitor that he would not divulge the identity of who had given him the settlement details which he included in a story in the Irish Press on September 30th, 1992.
Judge Carroll said: "In that case, he will go to prison and stay there until he does. Has someone explained the realities of his decision to Mr O'Kelly?"
Mr Fitzgerald said he felt Mr O'Kelly was only too aware of the realities regarding his decision. He had two witnesses, the plaintiff and Mr O'Kelly. He proposed calling Mr O'Kelly first to deal with his stated attitude to the question of divulging his source. Mr Woulfe said he had no objection to this procedure.
Mr O'Kelly, in evidence, said he had written the article in question and had obtained information from "some source".
Mr Fitzgerald: "Was that source an individual person?"
Mr O'Kelly: "I cannot identify the source for the article."
Judge Carroll: "You cannot or you will not?"
Mr O'Kelly: "I will not."
Judge Carroll: "I am asking you to tell the court who was your source of information for the contents of this article."
Mr O'Kelly: "I am not in a position to do so. Because of the nature of my work, I have granted immunity to my source. That's the way journalists work as you may well know yourself, so I cannot identify the source of this article."
Judge Carroll: "You know who that person was?"
Mr O'Kelly: "Yes."
Judge Carroll: "And you have particular reasons for refusing to disclose who it was?"
Mr O'Kelly: "Yes."
Judge Carroll then explained that Mr O'Kelly was, in effect, claiming a privilege to refuse to answer questions.
"I cannot tolerate that being done. If I did I would make the conduct of business in the courts impossible."
He said if he did tolerate this situation, any person could conclude that, in certain circumstances, he had received information which he had not to disclose the source of. That person would be withdrawing himself and the people behind him from obedience to the court.
"That is something which no court could possibly allow because if it were to be done it would reduce the workings of the courts to futility," said Judge Carroll.
"I am sorry. I understand the basis of your refusing to answer the question. But if you persist in your refusal, I will be obliged, with some regret, to order your committal to Mountjoy, there to remain until you consent to answer the question."
Judge Carroll said he would adjourn the proceedings for two hours, recommending Mr O'Kelly to seek legal advice.
"You are a very young man and certainly I wouldn't want to see any member of my family in this situation. I have no doubt whatever that you have taken a mistaken view of your duty and your obligation in this matter.
"I don't want you to say anything more to me now. I simply ask you, for your own sake, and for the sake of the public good which would be very much damaged if I allowed you to pursue the course you have determined on, to reconsider your position," Judge Carroll said.
When the court resumed, Mr Michael Kealey, solicitor for Mr O'Kelly, said his client had taken legal advice and he had instructions to seek the opinion of senior counsel. His client would be anxious to adjourn the matter until Wednesday morning.
Judge Carroll: "I don't think there is very much that can be said about the matter. I was concerned he hear my views and I gave him an opportunity to get advice. He has quite simply refused to answer a question put to him."
Mr Kealey said Mr O'Kelly would continue not to reveal the source of his information but he, Mr Kealey, would seek an opportunity for counsel to address the court on the law.
Judge Carroll: "I won't let him go beyond that, irrespective of the position of counsel or anything else. I have to get the business of this court done. He seems to me to be a respectable young man who is in an entirely untenable position which has to be take with extreme seriousness.
"I want to make it clear I am not going to send any man to prison without hearing him fully on the matter. I will adjourn until 11 a.m. tomorrow.
Ms Gallagher, of Terenure, Dublin, had in 1992 sued the GRA for alleged unfair dismissal and sexual harassment. She settled her action on the basis that the terms would be confidential.