Cahill v. Commissioner of An Garda Siochana [2000] IEHC 126 (8th June, 2000)

JUDGMENT of Mr Justice Roderick H. Murphy delivered the 8th day of June 2000. 1. The Applicant in the present case is probationer member of An Garda Siochana. He seeks judicial review by way of orders of Certiorari quashing certain findings, recommendations, an Appeal Board decision and order of the Commissioner in relation to a disciplinary matter. He also seeks an order of Prohibition prohibiting the members of the disciplinary inquiry from taking any further steps to enquire into the said complaints. 2. On June 6th, 1996 complaints were made by two members of the public alleging certain conduct on the part of the Applicant on 2nd June, 1996 which, if proven, would constitute conduct specified in the Schedule to the Garda Siochana Disciplinary Regulations, 1989. 3. It was alleged that the breaches of discipline amounted to discreditable conduct in respect of two counts. The first of these was that the Applicant allegedly lifted the complainant's dress and squeezed the lower part of her right buttock and, secondly, that on the same date the Applicant conducted himself in an aggressive manner towards other people in certain licensed premises resulting in his being banned from the said premises. 4. A hearing of the disciplinary inquiry on the 8th and 14th April, 1997, at which the Applicant denied both the charges, found the Applicant in breach of discipline under the first charge but not in breach of discipline under the second charge. 5. The Applicant maintains that none of the prosecution witnesses (ten in all) gave evidence of having seen the first incident and submits that the presenting officer relied on circumstantial evidence. In particular the Applicant submits that the presiding officer relied on a written statement and oral evidence of a witness who was presented as an independent, persuasive and reliable witness giving evidence that the Applicant verbally admitted the first incident to that witness. 6. The disciplinary inquiry found the Applicant in breach of discipline and this decision was affirmed by the Appeal Board on the 2nd March, 1998. 7. The Respondent accordingly made an order dated 6th March, 1998 that the Applicant was in breach of discipline on the first charge. 8. The Applicant submits to this Court that there was a romantic relationship between the complainant and that witness which was ongoing at the time of the disciplinary inquiry hearings; that such relationship probably commenced or was developing at or about the time of the conduct the subject matter of the complaint and that the complainant and the witness had been living together for some time past. 9. The failure to disclose such a material relationship constituted a serious breach of procedures as a result of which both the disciplinary inquiry and the Appeal Board inadvertently erred in jurisdiction and failed to afford the Applicant a fair hearing. 10. By affidavit filed the 21st December, 1998 the Applicant says that he commenced training as a member of An Garda Siochana in August, 1994 and at the time of the incidents referred to was a probationary member on Phase IV. After coming off duty on Sunday 2nd June, 1996 he met other off-duty colleagues at a public house in Crumlin. In the course of the evening the complainant (whom he did not know at the time) was standing not far away from him, turned to him and told him not to touch her or put a hand on her. He denies having touched or laid a hand on her in any way. After that various members of the group who were with the complainant became aggressive towards the Applicant and towards his only remaining colleague, a Ban Garda. Bar staff intervened and drink was poured over the Applicant by the complainant. The bar staff managed to get most of the group of customers concerned to leave the premises. After some delay the Applicant left with his colleagues. 11. In his affidavit the Applicant refers to the transcript of the evidence of the witness in question who referred to the complainant in the following terms: "She is very quiet and respectable and ladylike and would not blame anyone for doing something like this without being 100% sure." 12. In relation to the Appeal Board, the Applicant refers to a comment of the chairman in the following terms: "This is why earlier on this afternoon brought to your attention, (the witness’s) evidence, which seems to me to be fairly crucial in the context of tying in the situation." 13. The Applicant avers that he was at all times and remains intent on a career in the Gardai and was not prepared to resign. Accordingly, he says, that it is the Respondent's contention that he stand dismissed from An Garda Siochana with effect from the 27th March, 1998. 14. On the 25th May, 1998 his Solicitor wrote to the Respondent pointing out the unsatisfactory features of the investigation and asking the Respondent to rescind his order of the 6th March, to restore him to the rank of Garda, in default of which judicial review proceedings would be taken. 15. In the month of August, 1998 his Solicitors engaged the service of private investigators who interviewed the witness's wife. 16. An agent of the private investigator's filed an affidavit averring to her interview with the witness's wife on the 25th November, 1998. 17. Ignoring for a moment the element of hearsay contained in that affidavit, the import of the information received was that the witness separated some time shortly after Christmas 1997 and was living with the complainant from August, 1998. The wife, according to the hearsay evidence of the agent, believed that something was going on between the husband and the complainant for two years and that the alleged incident on the 2nd June, 1996 occurred on the lead up to this relationship. 18. A Statement of Opposition, verified by the affidavit of Patrick Fennessy, a former superintendent of An Garda Siochana objected to the application not being brought within the time limits specified by Order 84, Rule 21 of the Rules of the Superior Courts and pleaded that that application ought to be dismissed in limine ; that this Court is not a Court of Appeal from the decisions and has no such function or status in law and that the Applicant had failed to join all necessary parties to the proceedings. It is denied that the Statement of Grounds adequately or accurately sets out the evidence adduced to the disciplinary inquiry; that the presiding officer adduced evidence of the moral character of the complainant or that the Applicant was not afforded an opportunity to defend himself at the hearing of the inquiry. 19. It is further denied that the alleged relationship between the witness and the complainant, which relationship is not admitted by the respondent, constituted a material fact for the purpose of the inquiry or the appeal. 20. Even if the disciplinary inquiry or the Appeal Board erred (which is denied) such error occurred within jurisdiction and is not subject to review by this Court. 21. Patrick Fennessy was appointed investigating officer by the Commissioner for the purpose of investigating the allegations, the subject matter of this judicial review. In his affidavit he refers to the evidence of the complainant and the corroboration of this evidence by the barmen in the public house in which this incident occurred. 22. Moreover, he avers that it was not correct to characterise the evidence presented as entirely circumstantial. The board, he avers, heard the evidence of two witnesses to the effect that the Applicant admitted that he touched the complainant's bottom. Moreover, the Board heard evidence from a number of witnesses that the Applicant had, when complaint was first made to him, responded by saying something to the effect of "what do you expect wearing a dress like that". 23. Superintendent Fennessy further avers that he had explored whether the complainant and those in her company on the night were likely to be motivated by hostility to the Gardai. The deponent believes that it is notable that the Applicant's own representatives at the disciplinary inquiry took no objection to the evidence of which the Applicant now complains. 24. Superintendent Fennessy says that the evidence of the witness whom the Applicant seeks to impugn was not more important than the evidence of any other witness. He was not the only witness to give evidence that the Applicant had admitted that he touched the complainant inappropriately as a barman had also given such evidence. Moreover, he says that that witness, by his own admission, was presented to the Board as someone who was friendly with the complainant and would be in her company fairly regularly. 25. To the best of his recollection Superintendent Fennessy avers that he was satisfied that the wife of the witness whom the Applicant seeks to impugn had no relevant evidence to offer to the investigation. 26. Superintendent Fennessy's evidence on affidavit was supported by the affidavit of Aidan Kellegher, Inspector in An Garda Siochana, who was the presenting officer in the appeal which was determined on the basis of the transcript of the evidence before the disciplinary inquiry. The Applicant's Solicitor at the appeal pointed out a number of discrepancies and inconsistencies in the evidence that had been presented against the Applicant and submitted that much of the evidence was unreliable. This submission did not find favour with the Appeal Board. The Disciplinary Board had had the benefit of seeing and hearing the witnesses concerned. 27. The evidence of the witness whom the Applicant seeks to impugn was substantially to the same effect as that of the barman. The barman was not really subjected to cross-examination. The Appeal Board were at all times invited by the Applicant's Solicitor to regard the witness as on the complainant's "side" and to approach his evidence on that basis. 28. Mr. Gerard Hogan S. C., submitted on behalf of the Applicant that it would be highly relevant as to credibility if it was known that there had been some form of romantic relationship between the witness and the complainant. He submits that if this were an application under the Criminal Justice Act, 1993 that it would be regarded as a newly discovered fact which would have been of sufficient importance to warrant the quashing of a conviction and he referred to People -v- Meleady [1995] 2 IR 249 and People -v- Pringle [1995] 2 IR 547. 29. In relation to an application for judicial review Counsel referred to Regina (Burns) -v- County Court Judge of Tyrone [1962] NI 167 where McDermott L. C. J. said that "there could be no doubt but that Certiorari will lie to bring up and quash orders of inferior Courts which have been procured by fraud, and that this includes orders procured by perjury." 30. In essence, Counsel submits, this is no different from the present situation as far as the witness's evidence is concerned. If the averments in the Applicant's affidavits are correct then the witness's evidence stands in an entirely different light. Moreover, his presentation of his own evidence as a dispassionate witness would be manifestly false. Accordingly, it may be said that the findings of the Disciplinary Board and the Appeals Board were procured by fraud (in the special legal sense of that term) and that misleading evidence was given by a crucial witness. In these circumstances, Counsel insists, the High Court's supervisory jurisdiction is sufficiently broad to enable it, in these special and exceptional circumstances, to quash the Applicant's dismissal. 31. Ms Hyland, B. L. for the Respondent, submitted that the Applicant's case was a hypothetical one and did not deal with the actual events. It was necessary, in her submission, for the Applicant to clear a number of hurdles. 32. In the first place the Applicant must persuade to the Court that there is fresh evidence. In her submission there was no such evidence - the alleged relationship was from two years from the swearing of the affidavit which would have been from November, 1996 at the earliest. The conduct complained of occurred on the 2nd June, 1996. Moreover, the statement that the incident occurred on "the lead up to this relationship" is vague and in any event does not depart from the evidence given to the inquiry. 33. Ms Hyland submits that the evidence is hearsay, not a statement of fact but a belief with no foundation. "Something going on" is not a basis for Certiorari. Even if Mr Hogan were to say that there was no relationship in June but at the time of the hearing this would provide an entirely unworkable rule. 34. Even if the truth of the Applicant's submission in relation to new evidence were accepted, the Court would have to draw an inference which would require a gigantic leap. It was admitted in evidence that the witness was a friend of the complainant, part of her group. If there had been a relationship at the time of the incident or at the time of the hearing it would have been a large jump to assume that the witness's evidence would be excluded. He gave sworn evidence; there is a presumption of truth. Moreover, even if that evidence were excluded the evidence of the barman would have been sufficient. 35. Ms Hyland distinguished Burns case - there was no question of perjury here nor indeed was the decision obtained by the witness's evidence. Meleady's case was not analogous - the present case is not a criminal one. In Stokes -v- District Justice Aidan O'Donnell [1996] 2 ILRM 538 Laffoy J. refused to grant an order of Certiorari in a case where the Applicant submitted that there had been a fundamental gap in the evidence tendered by the prosecution at the hearing in relation to insurance of a car. The Applicant argued that the prosecuting Garda had not given evidence as to the name of the insurance company or the number of the policy which appeared on the certificate produced. 36. Mr Hogan S. C. in reply distinguished pure hearsay from the averment in the agent's affidavit as to where the witness and the complainant were living together. Moreover, Stokes -v- O'Donnell does not deal with new evidence. DECISION 37. It seems to me that the decision in Stokes and O'Donnell is relevant insofar as the nature of judicial review is concerned. Judicial review is not concerned with the decision but the decision making process. The function of the Court is not to examine the evidence tendered in support of a decision as to its sufficiency. 38. It does not seem to me that the witness was presented as the only independent witness. There was corroboration from the barmen regarding to what the Applicant was alleged to have said and the barman was not really cross-examined on the matter. 39. Moreover, it seems clear to me that the witness was presented as an acquaintance of the complainant and it was admitted that they were in each other's company. Moreover, the Solicitor for the Applicant in the appeal rightly pointed out to the members of the Appeal Board that this witness should be regarded as being on the side of the complainant. 40. Accordingly, it does not seem to me that the hearsay evidence of that witness's wife as to the relationship, even if it is against her interest, can be regarded as a newly discovered fact. 41. This Court has no hesitation in adopting the dictum of Lord McDermott in Burns case referred to by Mr Hogan. Orders which have been procured by fraud, including orders procured by perjury, should most properly be quashed. There is, however, no evidence whatsoever even on the Applicant's own submissions, that any of the witnesses have given perjured evidence. There is, contrary to Counsel's submissions, an essential difference between the evidence of the witness whom the Applicant seeks to impugn on the grounds of his relationship with the complainant even if unknown at the time, and evidence procured by perjury. 42. Lord McDermott immediately after the quotation referred to by Counsel at 169 of the Report states that: "But it is no less clear that this jurisdiction will not be exercised where the material facts and issues are in dispute or otherwise than manifest and clear; see Colonial Bank of Australasia -v- Willan . This Court cannot rehear a case or come to a conclusion between one version of the facts and another." 43. Counsel also referred to DPP -v- Meleady & Grogan [1995] 2 IR 517 where Keane J. (as he then was) ordered a retrial on being satisfied that there was fresh evidence regarding fingerprints. Mr Hogan submits that the new evidence in that case related to the credibility of the witness. 44. It does not seem to me that the relationship alleged is new evidence or, indeed, goes to the credibility of the witness. It certainly does not seem to me that it constitutes fraud or that there is any evidence of perjury. 45. Moreover, both cases referred to deal with criminal matters where evidence has to be proved beyond a reasonable doubt. 46. It seems to me that the Applicant has not adduced new evidence or, indeed, shown any deficiency in the decision making process such as to justify the orders sought. 47. In the circumstances I would refuse this application. © 2000 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII