State (Furey) v Min.Defence & Ag

JurisdictionIreland
JudgeMcCARTHY J.,GRIFFIN J
Judgment Date01 January 1988
Neutral Citation1984 WJSC-SC 408
CourtSupreme Court
Docket Number(279/80)
Date01 January 1988

1984 WJSC-SC 408

THE SUPREME COURT

O'Higgins C.J.

Griffin J.

McCarthy J.

(279/80)
STATE (FUREY) v. MIN.DEFENCE & AG.
IN THE MATTER OF THE CONSTITUTION
AND IN THE MATTER OF THE DEFENCE ACTS 1954– 1960

BETWEEN:

THE STATE, (AT THE PROSECUTION OF JOHN JOSEPHFUREY)
Appellant

and

THE MINISTER FOR DEFENCE AND THE ATTORNEYGENERAL
Respondents

Subject Headings:

DEFENCE FORCES: member

NATURAL JUSTICE: office holder

PRACTICE: delay

JUDICIAL REVIEW: certiorari

1

JUDGMENT delivered on the 2nd day of March 1984by McCARTHY J. (O'HIGGINS C.J. concurring)

2

The prosecutor was a member of An Forsa Cosanta Aitiuil from the 26th February 1970 until the 7th August 1974, when he was discharged from the F.C.A. by reason of his having enlisted in the Permanent Defence Force for a period of three years; he served as a Gunner in the Second Field Artillery Regiment, McKee Barracks, Dublin and was promoted to the rank of Three Star Private in May 1975. He was discharged from the Permanent Defence Force on the 14th August 1975 with the followingtestimonial:

"Gunner John Furey served in the Army for one year and eight days and was engaged in recruit training and general duties during hisservice."

3

The Certificate of Discharge stated as reason for discharge: "His services being no longer required" and that his military conduct was "unsatisfactory".

4

On foot of an affidavit sworn on the 20th August 1979 and filed on the 5th September 1979, Barrington J., on the 22nd October 1979, granted the prosecutor a conditional order of certiorari directed to the respondents to "send before the Court here for the purpose of being quashed any order or other record of the discharge of the prosecutor from the Defence Forces." The grounds for making the order were referred to as being those set out in paragraphs 9, 10, 11 and 12 of the prosecutor's affidavit.

5

The contention of the prosecutor made at the time was,essentially, that he had not been told the reasons for his intended dis-charge nor was he given any opportunity of making representations, if only ad misercordiam, in his own defence. The affidavit did not advert to a circumstance which has been conceded in this Court - that the use of the term "unsatisfactory" as a description of the prosecutor's military conduct, set out in his Certificate of Discharge, is quite inappropriate having regard to the contents of Defence Force Regulations A.8. Counsel on behalf of the respondents undertook to this Court to alter the Certificate of Discharge to the effect that the word "fair" would be substituted for the word"unsatisfactory".

6

A number of allegations of fact made by the prosecutor were contradicted on behalf of the Minister by several Army Officers and one non-commissioned officer. It is clear to me that these issues of fact could only be resolved on an oral hearing which, according to the report of the learned Judge in the High Court, counsel for the prosecutor sought. It is not clear to me why such a request wasrefused; in my view, if these issues of fact had to be resolved to meet the justice of the case, then such justice required that there be an oral hearing. If needs be, I would, even at this stage, direct such an oral hearing to be heard. Having regard to the conclusion to which I have arrived, however, I do not consider it necessary so to order.

7

The prosecutor relied upon the decision in The State (Gleeson)v. Minister for Defence (1976) I.R. 280; the learned High Court Judge considered that another decision of this Court - The State (Duffy) v. The Minister for Defence ( unreported) 9th May 1979, covered the instant case; I have sought to find some distinguishing feature of relevance between Gleeson's case and this case; I am unable to do so. This is not because, as is the fact, Gleeson and Furey together with another private soldier were involved in a particular incident in the Glen of Imaal in 1975, to which reference is made in some detail in Gleeson's case and also in the present case. It is because the circumstances affecting the legal issues between the parties appear to me to be identical here with Gleeson's case. Counsel for the respondents, Mr. Fennelly with admirable clarity and brevity, did not seek to contest this issue but argued againstallowing the appeal and making the conditional order absolute, essential]y, upon three grounds:-

8

(a) Delay. The discharge was on the 14th August 1975 - the application for certiorari was made on the 22nd October 1979.

9

(b) Lack of candour in the grounding affidavit. The prosecutor's first affidavit said:

"(3) I have never had any trouble with and was never disciplined by my superiors in any way".

10

When issue was taken on this aspect in affidavits filed on behalf of the respondents, the prosecutor mended his hand somewhat and conceded that there had been three occasions in which some form of disciplinary allegation was made against him, while contesting that there was as many as seven as averred on behalf of the respondents.

11

(c) Lack of Effect. The prosecutor had enlisted for a three-year period which has long since expired. Therefore, having regard to the undertaking to amend the Certificate for Discharge, there is no real purpose to be served by quashing the order of discharge.

A. Delay
12

On its face there was a delay of just four years but the affidavit of the prosecutor and the exhibits therein showthat he was not idle. Within four days of his discharge, Mrs. Furey had written to the Chief of Staff himself about the discharge of her husband from the Defence Forces. She received a reply on behalf of the Chief of Staff, admittedly not until the 23rd September 1975 - some five weeks later. Her husband sought to claim a disability pension in respect of an injury to his ear - this application was made on some date prior to the 18th February 1976 upon which date it was formally rejected by the Finance Branch of the Department of Defence, whereupon the prosecutor sought to re-enlist in the Permanent Defence Force, by letter of the 23rd February 1976. His application was refused on the grounds that his discharge from the Permanent Defence Force had been because "your services being no longer required". Mr. Furey turned, as many another citizen does, to one of his Dail Deputies who made representations to the Minister. The Minister responded in person on the 31st August but to the same effect as the official on behalf of the Department. Mr. Furey called to the office of the Minister about the end of August 1976 and the Minister's private secretary told him that "as soon as enquiries in the matter had been completed a further letter will be sent to you". No such letter was sent but Mr.Furey, himself, wrote to the Minister on the 5th January 1977 and received now the form of answer that he had already had from the Department and the Minister - "You were discharged from the Force on the grounds of your "services being no longer required" and therefore you are not eligible for re-enlistment under the terms of Defence Force Regulations." A change of government took place in 1977 and Mr. Furey wrote, on the 30th January 1978, to the new Minister for Defence whose private secretary acknowledged by letter of the 2nd February 1978 stating that a further communication would be sent in due course, as, indeed it was, on the 22nd February 1978 repeating the by now familiar formula. Mr. Furey turned his supplication to another Dail Deputy of the Dublin area, who was also a Minister in the Government. Further representations were made to the Minister for Defence in March 1979 and, by letter of the 4th May 1979, the Ministerial colleague sought details from Mr. Furey which he submitted to the Minister. By letter of the 30th April 1979, the Minister sought further details about Mr. Furey and stated that on receipt of the details "the matter will receive further attention". That appears to have been theend of the political road for the prosecutor and he, then, turned to the Law Courts for help. In the grounding affidavit he says:-

13

"(7) Approximately one week following my discharge and on several subsequent occasions I attempted to re-enlist in the Permanent Defence Forces but I have always been turned down based on the facts of my discharged (stet) which I never received an opportunity to refute. I have also attempted to re-join the Reserve Defence Forces (Forsa Cosanta Aitiuil) and I have been refused on the same basis. I say that I never realised that I had a right to pursue this matter in the Courts and I was never advised to do so. I could not afford legal advice, because of my poor circumstances, and did not consult a solicitor until by chance I met Private John Patrick Gleeson whom I understand commenced similar type of proceedings in this Honourable Court (Record No. 439 SS/1975). Over the past four years I have written many letters to the Department of Defence and to my local T.D.s and Ministers in an effort to have myself re-enlisted in the Army".

14

Mr. Fennelly has argued that the prosecutor must have been aware of the decision in Gleeson's case; the prosecutor says that he was so aware although he does not state when he met Gleeson. If he met Gleeson and learned of his success it would be strange, indeed, that he did not pursue the claim forthwith. I think it far more likelythat he did pursue the claim forthwith; however, in my view, this particular contention about knowledge of Gleeson's case should be dis-regarded since the respondents, having served notice to cross-examine the prosecutor did not pursue the issue. I shall revert to this aspect when dealing with the next heading of argument but, suffice it to say that I cannot find that the prosecutor has, by his delay, disentitled himself to the remedy sought.

B. Lack of candour
15

It may well be that there has been lack of candour, possibly due to the practice of affidavits for people of little education...

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