McGrath v Commissioner of an Garda Síochána

JurisdictionIreland
JudgeFINLAY C.J.,HEDERMAN J.,McCarthy, J.
Judgment Date01 January 1991
Neutral Citation1990 WJSC-SC 2031
CourtSupreme Court
Docket Number[S.C. No. 353 of 1989]
Date01 January 1991

1990 WJSC-SC 2031

THE SUPREME COURT

Finlay C.J.

Griffin J.

Hederman J.

McCarthy J.

O'Flaherty J.

353/89
MCGRATH v. COMMISSIONER GARDA SIOCHANA
HUBERT PATRICK McGRATH
Applicant/
Respondent

and

THE COMMISSIONER OF AN GARDA SIOCHANA
Respondent/
Appellant

Citations:

LARCENY ACT 1916 S17(2)(d)

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

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989 REG 5

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989 REG 38

OXFORD ENGLISH DICTIONARY 2ED CORRUPT

KELLY V IRELAND 1986 ILRM 318

CORPORATION OF DUBLIN V FLYNN 1980 IR 157

BREATHNACH V IRELAND & ORS 1989 IR 489

Synopsis:

CONSTITUTION

Personal rights

Fair procedures - Tribunal - Enquiry - Garda Siochana - Discipline - Enforcement - Garda acquitted after trial by jury - Same charges made on basis of breaches of domestic discipline - Enquiry restrained - (353/89 - Supreme Court - 17/7/90) 1991 1 IR 69

|McGrath v. Commissioner of Garda Siochana|

GARDA SIOCHANA

Discipline

Enforcement - Enquiry - Misuse - Garda - Jury trial - Acquittal on all counts - Domestic tribunal - Subsequent attempt to press same charges under guise of disciplinary proceedings - Restricted enquiry allowed - Constitution - Personal rights - Fair procedures - Garda Siochana (Discipline) Regulations, 1971, articles 6, 9 & schedule - Constitution of Ireland, 1937, Articles 34, 40 - (353/89 - Supreme Court - 17/7/90) [1991] 1 IR 69

|McGrath v. Commissioner of Garda Siochana|

NATURAL JUSTICE

Fair procedures

Charges - Repetition - Garda - Trial - Acquittal by jury - Subsequent domestic enquiry - Same charges made on basis of breaches of discipline - Enquiry restrained - (353/89 - Supreme Court - 17/7/90) - [1991] 1 I.R. 69 - [1990] ILRM 817

|McGrath v. Commissioner of Garda Siochana|

TRIBUNAL

Enquiry

Fair procedures - Charges - Repetition - Garda - Trial - Acquittal by jury - Subsequent domestic enquiry - Same charges made on basis of breaches of discipline - Enquiry restrained - (353/89 - Supreme Court - 17/7/90) - [1991] 1 IR 69 [1990] ILRM 817

|McGrath v. Commissioner of Garda Siochana|

1

JUDGMENT delivered on the 17th day of July 1990by FINLAY C.J. [GRIFFIN AGR OBSERVATIONS]

2

I have had the opportunity of reading the judgment which is about to be delivered by Hederman J. in this case, and I agree with the conclusion reached by him that this appeal should be dismissed, since to permit the garda investigation to proceed into a complaintof corrupt practice would, in the particular circumstances of this case, amount to an unfair procedure.

3

I would emphasise, however, as is clear from that judgment that there cannot, it would appear to me, be any general principle that an acquittal on a criminal charge in respect of an offence, irrespective of the reason for such acquittal, or the basis on which it was achieved, could be inevitably an estoppel preventing a disciplinary investigation arising out of the same set of facts.

4

There was no suggestion contained in this case that the verdict in the criminal trial of the Applicant arose through any technicality or any failure of attendance by a particular witness who might be available at a subsequent disciplinary hearing, or other like circumstance. It would appear that the Appellant accepted that the verdict was a verdict on the merits of the particular charge on a full and proper hearing.

5

In those circumstances, it seems to me that a disciplinary hearing now prosecuted, arising out of the identical facts and allegation of corruption, would be a basically unfair procedure.

6

JUDGMENT delivered on the 17th day of July 1990by HEDERMAN J. [GRIFFIN O'FLAHERTY AGR]

7

In this case the respondent, Garda Hubert Patrick McGrath, was charged on three counts alleging that he embezzled sums of money, in the years 1984 and 1985, contrary to s. 17(2)(d) of the Larceny Act, 1916. He was tried before a judge and jury and acquitted.

8

Thereafter, the appellant, the Commissioner of the Garda Siochana, sought to hold a disciplinary inquiry pursuant to the Garda Siochana(Discipline)Regulations, 1971, (S.I. No. 316 of 1971) alleging that Garda McGrath had been in breach of discipline within the meaning of Regulation 6 of the said Regulations and that he had engaged in a "corrupt or improper" practice by failing to account for certain sums of money received by him in the course of his duty from one Eamon Hanlon.

9

There were also breaches of discipline alleged arising out of the fact of his being charged in court with embezzlement. The learned High Court judge (Mr. Justice Lynch) held that such complaint could not lie because any disgruntled person could bring charges against a member of the Garda Siochana and no matter how emphatic the acquittal the fact of such proceedings could be alleged to be a breach of discipline. He found that so untenable as to merit granting an order of prohibition in relation to those alleged breaches of discipline. The appeal in relation to that part of the judge's findings has not been pursued in this Court.

10

The ingredients of the offence of embezzlement as charged in this case were that as a garda he "embezzled or in any manner fraudulently applied or disposed of for any purpose whatsoever except for the public service any ... money ... entrusted to or received or taken into possession by him by virtue of his employment": s. 17(2)(d) Larceny Act, 1916.

11

The hearing of the alleged breaches of discipline before the disciplinary inquiry would seek to repeat the same ground as in the criminal trial. It was conceded by counsel for the respondent that this had never been done in practice in the past and could not be done under the new regulations in the future: see Regulation 38 of the Garda Siochana (Discipline) Regulations, 1989 (S.I. No. 94 of 1989) - in force from the 1st June, 1989 but not applicable to the present proceedings by virtue of Regulation 5 thereof which deals with proceedings which were commenced and which had not been concluded before the commencement of those Regulations. However, it was argued that itwas permissible and that there was no question of res judicata.It was pointed out that the parties were different and that the onus of proof in a criminal trial and in an inquiry such as that proposed was not the same.

12

With regard to the allegations of corrupt practice embodied in the alleged breaches of discipline the trial judge was satisfied that such an allegation contradicted the findings and verdict of the jury in the trial on charges relating to the same matters. He went on to say:-

"Those findings and verdict have been recorded by the Court appointed under the Constitution for determination of those matters and it is not now open to the inquiry to investigate these matters on the basis that there was any element of corruption or dishonesty on the part of the (respondent) in relation to them."

13

Accordingly, he granted an order of prohibition in respect of those alleged breaches of discipline but the judge felt, however, that the inquiry could go aheadif the breaches of discipline were confined to an allegation of "improper" practice as opposed to a "corrupt" or dishonest practice which he decided had already been the subject of consideration...

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