State (Smullen) v Duffy

• Jurisdiction: Ireland
• Court: High Court
• Judge: Finlay P.
• Judgment Date: 21 March 1980
• Neutral Citation: 1980 WJSC-HC 1759
• Date: 21 March 1980

1980 WJSC-HC 1759

THE HIGH COURT

No. 317 S.S./1976

State (SMULLEN) v. DUFFY & ORS.

BETWEEN:

THE STATE (SMDLLEN)

.v.

DUFFY and OTHERS

1 21st day of March 1980 Finlay P.

Finlay P.

2 This was an application to make absolute notwithstanding cause shown a conditional order made on the 30th of July 1976 by Mr. Justice Hamilton directing the Respondents as Board of Management of the Tallaght Community School to make up orders made by them on the 2nd of April 1976 and the 29th day of April 1976 suspending the prosecutors as pupils from the school and to send such orders before the Court for the purpose of being quashed.

3 The application was heard before me on affidavit and I reserved judgment.

4 The facts from which this matter arises as appearing from the affidavits and insofar as there was a conflict between them as found by me are as follows. The two prosecutors who were at the time of the matters herein after referred to respectively aged 14 and 15 years had been pupils in the Tallaght Community School for periods of 1½ and 2½ years respectively.

5 On the 31st of March 1976 a fight occurred involving a large number of pupils of the school immediately outside its gates. During the course of that fight two children including the second-named prosecutor were stabbed and another boy was struck with an iron bar by the first-named prosecutor.

6 The second-named prosecutor was immediately taken by one of the school officials to hospital where he remained for some days. On the day following this incident, that is to say the 1st of April 1976, the Principal of the school, Mr. Heeran, carried out an investigation of the incident which had occurred and interviewed a number of boys who had been involved in it including the first-named prosecutor but did not interview the second-named prosecutor who was still detained in hospital. As a result of that investigation the two prosecutors were on the 2nd of April 1976 suspended by the Principal from the school and on the same date he wrote to the prosecutors mother and next friend, she being a widow, in the following terms - "As you already know your two boys Derek and Declan were involved in a very serious attack on another pupil just outside the school on Wednesday.

7 As a result of our investigations I am reluctantly forced to suspend Declan and Derek and I will be requesting the Board of Management to expel them from the school. If you wish to appeal against my decision please write to The Secretary, Board of Management, Tallaght Community School, Tallaght, Co. Dublin. The next meeting of the Board is on April 29th."

8 The prosecutors mother did not in fact write to The Secretary of the Board appealing against the decision but apparently together with some of the other parents involved took the advice of a section of the Free Legal Aid Committee. A member of the Free Legal Aid Committee apparently wrote to the school stating that they were appealing on behalf of the prosecutors and asking that they be allowed legally to represent the prosecutors at the meeting of the Board of Management. This letter did not contain any grounds upon which the appeal was being brought nor did it contain any information concerning the allegations contained in the letter from the Principal on the 2nd of April 1976.

9 Apparently, on the date of which the meeting was to be held a member of the F.L.A.C. organisation met the Principal and the first-named Respondent and repeated their wish legally to represent the Smullen boys at the Board meeting. They were informed, I am satisfied, by the Principal that the Board would not be in formal session until 7.30 p.m. that night but that if they wished to wait at the hotel that he, the Principal, would inform the Board of their request and would then inform them whether or not the Board acceded to that request.

10 I am satisfied that the representative of F.L.A.C. did not wait until the time for the meeting nor did the prosecutors mother and next friend nor any other person on their behalf attend the meeting or send any written representation of any description other than that letter of request to the meeting.

11 I am also satisfied that the Board of Management then met on the 29th of April 1976 and having fully considered the report of the Principal of the school and having discussed and been informed of the request of the two prosecutors to be represented by a member of F.L.A.C. decided to suspend the two prosecutors until the end of the school year with a view to their finding another school. The effect of this decision was that they would not be eligible for re-enrolment in the school in the following September. This decision was immediately communicated on the 30th of April to the mother and next friend of the prosecutors. In the affidavit of the prosecutors next friend upon which this Conditional Order was granted the facts concerning the fight which lead to the suspension of the two prosecutors are dealt with as follows:-

"On the 31st of March 1976 at approximately 1.15 p.m. across the road from the said Tallaght Community School a fight occurred involving a large number of children. During the course of this fight which lasted 3 to of minutes knives were produced resulting in the stabbing of two children. On the previous day, DecIan Smullen, as I am informed by him and believe, had been threatened by older boys from 5th year. The fight on the 31st of March 1976 was between Declan and some friends of his and the boy who had threatened him on the previous day with some of his friends. The boy who had threatened Declan on the previous day stabbed Declan with a knife and Derek Smullen then came between them when he saw this and hit the boy who had stabbed Declan with an iron bar to disarm him as I am informed by Declan and believe."

12 With regard to the same incident the affidavit of Mr. Heeran, the Principal of the school filed on behalf of the Respondents, having set out the investigations which he made and the persons he interviewed on the 1st of April 1976 states as follows:-

"From my interview the following facts emerged; on the 31st of March 1976 at approximately 1.10 p.m. as pupils were leaving the school a group of approximately six boys led by one of the two Smullen boys attacked Michael Holland and Michael Mulligan. The first person to engage in physical contact was Declan Smullen who jumped on Michael Holland. Derek Smullen then intervened, carrying an iron bar which had been stolen from the school's science laboratory on that day. Derek Smullen admitted to me when questioned by me on the 2nd of April 1976, that he and his brother Declan were involved in the fight on the 31st of March 1976. Declan Smullen received a knife wound in his leg and was brought to hospital by one of the teachers at the school namely Sr. Laurentina. Declan Smullen was not at school on the...