McNulty v Commissioner of an Garda Síochána
| Jurisdiction | Ireland |
| Judge | Ms. Justice Baker |
| Judgment Date | 09 November 2016 |
| Neutral Citation | [2016] IEHC 632 |
| Docket Number | [2011 No. 7391 P] |
| Court | High Court |
| Date | 09 November 2016 |
[2016] IEHC 632
THE HIGH COURT
Baker J.
[2011 No. 7391 P]
AND
Tort – Damages & Restitution – Trespass – Breach of duty and discipline by a member of An Garda Siochana – Quantum of damages
Facts: The plaintiff had filed the present proceedings seeking damages for trespass, negligence and breach of constitutional rights against the member of the defendant arising out of some incidents wherein the said member had barged into the house of the plaintiff and threatened and intimidated him. The plaintiff claimed that due to the aggressive behaviour and dereliction of duty shown by the said member on the relevant dates, the plaintiff had subsequently suffered psychological disorders. The said member of the Garda argued that on the date of the alleged incidents, he was primarily concerned with the welfare of the three children of the plaintiff and ex-wife and thus, behaved accordingly.
Ms. Justice Baker awarded damages for trespass and personal injuries to the plaintiff. The Court held that the claim for negligence against the said member could not be formed as the alleged actions of the said member were not done out of any malice. The Court found that opening of fridge of the plaintiff by the said member was a technical trespass and that the said member was not present in the plaintiff's house at the relevant time lawfully. The Court held that the presence of the member of the Gardai itself without authority was an unnecessary interference in the plaintiff's right to personal dwelling.
The plaintiff seeks damages arising from incidents at his home on two dates, 4th August, 2009 and 19th August, 2009, as a result of which he says he was threatened and intimidated by a member of An Garda Síochána.
The claim is pleaded in trespass, negligence, breach of constitutional rights and those under the European Convention on Human Rights. There is also a claim that the plaintiff was injured in his reputation, but this was not further particularised or progressed at trial.
In defence, the State entities plead that they acted reasonably, that their behaviour was at all times justified and lawful, and that any anxiety and other conditions of which the plaintiff complains, were pre-existing or related to the difficult circumstances then prevailing in his marriage.
The plaintiff was born in 1968 and at the commencement of the proceedings was a student, although he was in full-time employment when the case was heard. At the time of the incidents giving rise to these proceedings he was experiencing grave and irreconcilable difficulties in his marriage. Both the plaintiff and his wife had made complaints to members of An Garda Síochána arising from the behaviour of the other in the period leading up to the incidents the subject matter of these proceedings.
The plaintiff was the primary carer of the three children, one of the marriage, and two of a previous relationship of his wife. In the period leading up to the incidents the subject matter of these proceedings, the relationship between the couple was contentious and difficult, and they were attending family counselling. That counselling did not result in the reconciliation of the marital difficulties and the couple eventually separated. An interim order under the Domestic Violence Act 1996, as amended, was obtained by the plaintiff's wife on 25th July, 2009 and immediately thereafter the plaintiff went to the home of his mother and father with the youngest child, a boy, then four years of age. He stayed in his parents' house between the date of the interim order and the return date before the District Court. The plaintiff's wife's application for a barring order was refused at the interlocutory hearing, and the plaintiff returned to the marital home at approximately 3.00 p.m. on 4th August, 2009, accompanied by his father and his young son. There was an argument at the home between the couple, which was described in quite vivid terms as being aggressive and verbally abusive. The plaintiff's wife then left the home taking the young boy with her. The plaintiff called for garda assistance, and he and his father were in the house when the gardaí arrived following his phone call.
Two male members of An Garda Síochána attended at the house. The plaintiff says that one garda member, Garda Hartley, took control of the conversation that happened in the family kitchen. The plaintiff described a very unhappy encounter, and described the garda as being immediately confrontational, referring to the plaintiff as the ‘man who kidnapped his child’, a reference explained in the course of trial as a reflection of a complaint made by the plaintiff's wife regarding the whereabouts of the young boy between the date of the interim order and the return date before the District Court. He said the garda asked him if he had been drinking, and opened his fridge, saying he was looking for alcoholic drink. It is alleged that the garda said that as ‘he was the judge now’, he was free to deal with the matter, and that the plaintiff was answerable to him.
Mr. McNulty senior attempted to intervene and suggested that the plaintiff would phone his solicitor, which he then did. The garda spoke to the solicitor, but that solicitor gave no evidence as to the purpose or content of the call.
The plaintiff says that immediately after that call the garda asked Mr. McNulty senior to leave the house, and no reason was given for this.
The plaintiff's wife arrived back at the home with the young boy and the two older children, and she and the gardaí together with the plaintiff, and in the absence of Mr. McNulty senior, agreed arrangements by which it was hoped that the couple could co-exist for a short period, until other more long-term arrangements could be made. That conversation lasted 30 minutes or thereabouts.
The interim arrangement between the couple broke down within two days, and a female garda, at their invitation, then negotiated a different arrangement by which the plaintiff's wife left the house and access arrangements were put in place. The plaintiff describes that garda as handling the situation very well, with professionalism and a neutral attitude.
The next incident is said to have occurred close to 9 p.m. on 19th August, 2009. The plaintiff was at home watching television with his parents. The young boy was in bed. The plaintiff says that his mother answered a knock on the door and Garda Hartley ‘barged into’ the house, past his mother and went straight to the living room. The plaintiff says he thought Garda Hartley was ‘coming to apologise’, that he had not called for garda assistance and had not spoken to him since 4th August. He said Garda Hartley was extremely aggressive and was shouting at him.
He describes an unpleasant incident in his home on that evening, that he was told he would be arrested, that the young boy would be ‘taken from him’, and that he would be charged with assault and kidnapping. He says when asked if he had a warrant, Garda Hartley said that he had been invited to the house by the plaintiff's wife, and an altercation occurred during which the plaintiff said that this could not have happened as his wife had moved to another town, and could not have extended that invitation. The plaintiff says the garda refused to leave the house when he was asked to do so.
Mr. McNulty senior attempted to calm the atmosphere and brought the plaintiff into another room.
Two other gardaí then arrived. They knocked on the door but did not come in and Garda Hartley left with them. The plaintiff describes the other gardaí as professional and he accepts they attempted to calm what had become quite a heated environment.
The plaintiff describes himself as frightened during that incident. He describes the behaviour of Garda Hartley as unprofessional, and that he did not show basic courtesy towards him. He remarked on the fact that he had no notebook, and took no notes whatsoever during the encounter. He attended later that night at Tallaght Garda Station and made a statement about both incidents.
In cross examination, he denied that he was a ‘bully’ and offered as an illustration the fact that the children, including the children of his former wife to whom he was in loco parentis, had chosen to live with him for much of the time. He did admit that he perpetrated an assault on his former wife's new partner, but denied that he personally was violent in his marriage.
In response to a question from counsel, he denied that Garda Hartley had made it clear to him that it was not his function to be involved in any way in the matrimonial matter, and in response he said ‘what was he there for then’.
He also denies that he was ‘highly elated’ after the interlocutory hearing in the District Court, and said that he was more relieved than anything else. He denies that he had been drinking.
The plaintiff completed a formal complaint to the Garda Síochána Ombudsman Commission (‘GSOC’) in regard to both incidents and his complaint was referred to an internal garda investigation on the instructions of GSOC. On 8th April, 2010, Chief Superintendent Lorraine Wheatley who had been appointed pursuant to s. 94 (1) of the Garda Síochána Act 2005 to investigate that complaint found Garda Hartley in breach of discipline, and he was given written advice regarding how he had managed these incidents, and how to deal with disputes of this nature in the future. The provision for dealing with such complaint by ‘advice’ is provided for under Regulation 10 of the Garda Síochána (Discipline) Regulations 2007. The...
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