MR Justice Kelly has refused to order the Minister for Justice, Mrs Owen, and senior state officials to give oral evidence before the Divisional High Court inquiry into the release and rearrest of prisoners last October.
During a High Court hearing yesterday, Mr Justice Kelly severely criticised Dr Michael Forde SC, counsel for the applicant Michael Heggarty, on the manner in which information and undertakings to the court had apparently been regarded lightly.
In his judgment, the judge said he had been asked for the order on the basis that the Minister or officials might have been selective in sworn written statements made by them or on their behalf, and he rejected suggestions they might not be wholly truthful when examined on these before the court.
The prisoners were freed when it was discovered they had been dealt with by the Special Criminal Court at a time when one of the sitting judges, Judge Dominic Lynch, was no longer a member of the court. Gardai immediately rearrested them at the prison gates.
They have challenged the validity of the arrests and a three judge Divisional Court of the High Court has been appointed to determine the issues. It will sit next Tuesday to hear the claims of Michael Heggarty.
Yesterday Heggarty's counsel, Dr Michael Forde SC, asked the High Court to order the Minister the DPP, two senior Justice Department officials and Chief Supt Murphy, among others, to appear at the trial for questioning about matters relating to the Minister's decision and instructions at the time.
Dr Forde said that if he availed of the procedure open to him of compelling the Minister and the other witnesses to attend the trial by issuing subpoenas against them, they would become his witnesses and he would be bound by their evidence.
He would be excluded from treating them as hostile witnesses and cross examining them. As things stood, evidence would be given by way of affidavit and in the Minister's ease her affidavit had been prepared and sworn by an official of her Department. Dr Forde said everyone involved had not filed affidavits.
He said the Minister was the person who, apparently, directed that the prisoners be released. There was an affidavit from one official in the Department of Justice but other matters may have occurred in the Department to which the official concerned may not have been privy or which he may have chosen not to put in an affidavit.
"It is important for the court to know whether the Minister directed the prisoners' release and whether she knew and inquired into what the arrangements were for their simultaneous arrests, he said.
He submitted that if she was aware such arrangements were in existence or if she had instructed that the prisoners be released into the custody of the gardai, their rearrest would be unlawful. The Minister, therefore, was a very material witness.
Dr Forde said the Minister, as a notice party on the side of the respondent, would not, if subpoenaed as his witness, be willing to meet his client and counsel and voluntarily go through what Heggarty would wish to go through with her. She would in fact be a hostile witness.
Mr Sean Ryan SC, counsel for the Minister, and Mr Diarmaid McGuinness, SC, counsel for the DPP, submitted the inference to be drawn from that submission was that their clients and other "material" witnesses would not be prepared to stand by their oath.
After Dr Forde conceded that his application had been wrongly presented to the Court under Rule 39 (4) of the Rules of the Superior Courts, his application was dismissed.
Mr Justice Kelly also dismissed an application for "eleventh hour" discovery of documents and information, saying he had been told on more than one occasion since November 29th by Dr Forde that the trial was ready to proceed without further order or need for discovery.
He noted that within 48 hours of Dr Forde having informed the court on December 16th that discovery would not be necessary in the case, Heggarty's solicitor had written to the Chief State Solicitor seeking discovery.
During yesterday's two hour hearing of Dr Forde's applications, Mr Justice Kelly made firm criticisms of Dr Forde relating to the manner in which information and undertakings to the court had apparently been regarded lightly.
He reprimanded Dr Forde for having "button holed" him in the corridor the previous day, telling him he had approached Mr Justice Smyth and had organised the matter for hearing yesterday.
"I resent being button holed by counsel in the corridor," Mr Justice Kelly said. "I particularly resent that you would come and speak to me about a matter before the court in the absence of the other parties.
Dr Forde said he had done so as a matter of courtesy after the judge had indicated that any applications in the proceedings ought to be made to him.
Mr Justice Kelly in his judgment said he had been earlier assured that discovery in Heggarty's case would not be necessary. However, any failure on the part of his legal representative should not be visited upon Heggarty and he ruled that documents discovered in the case of prisoner Nessan Quinlivan, also represented by Dr Forde, be used in the Heggarty trial next week.
He said that on December 16th.
He had granted Dr Forde liberty to issue subpoenas on any other persons he considered appropriate. Yesterday he had been told Dr Forde had not issued a single subpoena on foot of that liberty but instead had brought an application which was entirely misconceived, a fact that would have been crystal clear had an even rudimentary preparation been applied to it.
Mr Justice Kelly said Dr Forde had gone on to say that the witnesses he named were in some respect hostile and, consequently, if called before the Divisional Court he would want to cross examine them.
"That appears to me to demonstrate a further confusion as to what a hostile witness is," Mr Justice Kelly said. "A witness becomes hostile if in the course of giving evidence, the evidence contravenes a prior statement of that witness and on such occasions application may be made to the court of trial to have the witness declared hostile.
He said there was no suggestion here of any hostility in that sense. In so far as Dr Forde's application might be based on some form of assumption that these witnesses would not honour the oath they would be required to take he rejected it.