MCCARTHY v Commissioner GARDA Síochána

• Jurisdiction: Ireland
• Judge: Mr. Justice Flood
• Judgment Date: 01 January 1993
• Neutral Citation: 1992 WJSC-HC 711
• Court: High Court
• Docket Number: No. 122 J.R./1989,[1989 No. 122 J.R.]
• Date: 01 January 1993

1992 WJSC-HC 711

THE HIGH COURT

No. 122 J.R./1989

MCCARTHY v. COMMISSIONER GARDA SIOCHANA

JUDICIAL REVIEW

BETWEEN

GERARD T. McCARTHY

APPLICANT

AND

COMMISSIONER OF AN GARDA SIOCHANA

RESPONDENT

Citations:

LARCENY ACT 1916

CRIMINAL PROCEDURE ACT 1967 S8

GARDA SIOCHANA (DISCIPLINE) REGS 1971 SI 316/1971 REG 9

SHELLY V MCMAHON & DPP 1990 IR 36

CRIMINAL PROCEDURE ACT 1967 S7

MCGRATH V COMMISSIONER OF GARDA SIOCHANA 1990 ILRM 5, 817

GLAVIN V GOVERNOR OF MOUNTJOY TRAINING UNIT 1991 ILRM 478

COURTS (NO 2) ACT 1988 S1(2)(a)

WEBB V IRELAND 1988 IR 353

GARDA REPRESENTIVE ASSOCIATION V IRELAND 1989 IR 193

AMALGAMATED PROPERTY CO V TEXAS BANK 1982 QB 84

GARDA SIOCHANA (DISCIPLINE) REGS 1971 SI 316/1971 REG 6

GARDA SIOCHANA (DISCIPLINE) REGS 1971 SI 316/1971 REG 8

Synopsis:

CRIMINAL LAW

Offence

Trial - Acquittal - Validity - District Court - Return for trial - Return invalid - Trial a nullity until statutory validation - Whether accused was in peril at his trial - Propriety of domestic disciplinary proceedings after acquittal at trial - Dismissal of garda quashed - (1989/122 JR - Flood J. - 21/2/92)- [1993] 1 I.R. 489

|McCarthy v. Commissioner of Garda Siochana|

GARDA SIOCHANA

Discipline

Enforcement - Misconduct - Enquiry - Dismissal - Judicial review - Breaches of discipline the subject of previous trial on indictment - Garda acquitted by jury on all counts - Trial a nullity since return for trial invalid - Return ordered by judge after retirement date - Subsequent statutory validation of judge's orders - Garda's legitimate expectation of freedom from similar orders - Courts (No. 2) Act, 1988 s. 1 - (1989/122 JR - Flood J. - 21/2/92) - [1993] 1 I.R. 489

|McCarthy v. Commissioner of Garda Siochana|

JUDICIAL REVIEW

Certiorari

Tribunal - Enquiry - Decision - Garda - Dismissal - Breaches of discipline - Prior acquittal at criminal trial - Return for trial invalid - Trial a nullity until subsequent statutory validation - Enquiry and dismissal involved same charges as those in trial - Whether garda was in peril at his trial - Dismissal quashed - (1989/122 JR - Flood J. - 21/2/92) - [1993] 1 I.R. 489

|McCarthy v. Commissioner of Garda Siochana|

1 Judgment of Mr. Justice Flooddelivered the 21st day of February 1992.

2 This matter comes before the Court by way of Judicial Review of an Order of the Respondent, made on the 25th day of October 1988, ordering the dismissal of the Applicant from An Garda Siochana on November 2nd 1988. It is brought pursuant to leave granted to the Applicant by Order dated April 24th 1989 and a subsequent amendment thereto granted by Order dated October 18th 1989.

3 The essential facts underlying this application, derived from the Affidavits filed on behalf of the Applicant and the Respondent and the exhibits therein referred to can, be briefly summarized, asfollows:-

4 The Applicant is a member of the Garda Siochana holding the rank of Sergeant, and at all timesmaterial was serving at Johnstown Garda Station Kilkenny.

5 In or about the month of May 1985, the Applicant's superior officers, allegedly, suspected the Applicant of irregularities in handling public moneys, and other activities which might be of a criminal nature. An investigation followed, and the file was forwarded to the Director of Public Prosecutions.

6 The Director of Public Prosecutions instituted criminal proceedings by way of a series of Summons - 13 in number in all, - alleging embezzlement and fraudulent conversion, of sums of money by the Applicant on divers dates in 1985 and 1986 contrary to the provisions of the Larceny Act 1916. Four of the 13 Summonses were signed by District Justice Mary Martin, and the remaining nine by District Justice SeamusMahon.

7 The said District Justice Seamus Mahon conducted a preliminary examination of the said charges in the said Summons, which were in fact indictable offences, and by Order dated July 3rd 1986, having found that there was a sufficient case to put the Applicant on trial, ordered that the Applicant be sent forward for trial, pursuant to Section 8 Criminal Procedure Act 1967, on the said offences to the next sittings of the Circuit Court atKilkenny.

8 The Applicant was duly arraigned before the CircuitCourt at Kilkenny on 13 counts of embezzlement and fraudulent conversion, contrary to the provisions of the Larceny Act 1916 (hereafter called the "Kilkenny indictment"). He pleaded notguilty.

9 A jury was duly empanelled. The trial proceeded in the ordinary way and all necessary witnesses were present and gave evidence. At the conclusion of the evidence after being appropriately charged by the presiding Judge the jury retired, and after a deliberation, returned a verdict of not guilty on all 13 counts. The Applicant was duly discharged. The said trial and acquittal took place on November 5th1986.

10 The Garda authorities decided to conduct an inquiry pursuant to the Garda Siochana Discipline Regulations 1971. On December 1st 1986, Superintendent Griffin, of Thurles Garda Station was appointed Investigating Officer by Chief Superintendent Carey the Divisional Officer for County Tipperary, pursuant to Regulation 8 of the Garda Siochana Discipline Regulations 1971. His task was to investigate breaches of discipline by the Applicant.

11 On February 3rd 1987 a Notice under Regulation 9 of the Garda Siochana Discipline Regulations 1971 was served upon the Applicant, alleging possible breaches of discipline and informing him of the intendedinvestigation.

12 On October 6th 1987 a sworn inquiry into 36 alleged breaches of discipline was convened at Thurles Garda Station. It was accepted by the Respondent, at the hearing before this Court that, at least nine of the charges of breach of discipline, refer to the same events as nine of the counts in the Kilkenny indictment. The form of complaint before the Disciplinary Inquiry was, that, of corrupt or improper practice contrary to Regulation 6 of the Garda Siochana (Discipline) Regulations 1971 Reference Number 7 in the Schedule thereto.

13 On reading the said charges, in the breach of discipline inquiry, and the corresponding counts in the Kilkenny indictment, it is quite clear that they do in fact relate to the same sequence of events. It is further clear that the disciplinary count has a similar criminalconnotation.

14 The inquiry proceeded on a number of days and the hearing finally terminated on May 26th 1988. The Applicant was found in breach of 18 of the alleged breaches of discipline charges. Seven of the said breaches of discipline charges of which he was found guilty are on my reading identical for all practical purposes, with seven of the counts in the Kilkenny indictment in respect of which he with found not guilty by thejury.

15 A number of the other counts in the disciplinary proceedings are certainly closely related but thoughthey arise from the same facts they are of a disciplinary nature relating to negligent conduct. In the course of the said disciplinary inquiry the Applicant's Solicitor objected that the Applicant should not be charged before the disciplinary inquiry, with matters in respect of which he had been found not guilty on the Kilkenny indictment by the jury. This objection was overruled by the disciplinary hearing. Following on the disciplinary hearing Commissioner Edward J. Doherty by Order dated the 28th of July 1988 dismissed the Applicant from the Garda Siochana with effect from the 19th of August 1988.

16 The Applicant appealed from the said decision to the Appeal Board. On October 24th 1988 the Appeal Board confirmed, the decision of the Board of Inquiry, dated the 26th day of May 1988, and recommended to the Respondent that the Applicant be dismissed from the Force. On October 25th 1988 the Respondent made on Order dismissing the Applicant from the Garda Siochana as and from November 22nd 1988 which, as I have said, gives rise to these proceedings.

17 The foregoing are the essential facts in...