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McGlynn v. Garda Commissioner [1998] IEHC 133 (31st July, 1998)
THE
HIGH COURT
1997
No. 411 J.
BETWEEN
JOHN
MCGLYNN
APPLICANT
AND
THE
COMMISSIONER OF AN GARDA SIOCHANA
RESPONDENT
Judgment
of Mr. Justice Dermot Kinlen dated on the 31st day of July, 1998
.
1. On
Monday, 24th November, 1997 the Applicant made an ex parte application to the
Court for leave to apply by way of Judicial Review of a number of matters.
2. Ms.
Justice Laffoy gave leave to apply for Orders of Prohibition and Mandamus by
way of application for Judicial Review in respect of an investigation of the
Applicant on the grounds set forth at paragraph 5 in a statement dated 21st
November, 1997 signed by the solicitor to the Applicant and the affidavit of
Thomas Murphy filed on 21st day of November, 1997 verifying the facts in the
said statement and the exhibits referred to in said Affidavit.
3. The
grounds upon which relief is sought are:-
(A) That
in initiating an investigation purporting to be pursuant to the Provisions of
the Garda Siochana (Discipline) Regulations, 1989 into alleged breaches of
discipline on the part of the Applicant, the Respondent is acting contrary to
the rules of natural and constitutional justice and to the serious detriment of
the Applicant.
(B) That
in initiating an investigation purporting to be pursuant to the provisions of
the Garda Siochana (Discipline) Regulations, 1989 into alleged breaches of
discipline on the part of the Applicant and, in particular, into the alleged
breaches as set out in paragraph 2, 3 and 4 of the Form B30, the Respondent is
failing to comply with the Garda Siochana (Discipline) Regulations, 1989 and,
in particular, Regulation 38 and is acting ultra vires the said Regulations.
(C) That
the Respondent in initiating an investigation purporting to have been pursuant
to the provisions of the Garda Siochana (Discipline) Regulations, 1989 into the
alleged breach as appears at paragraph (1) of the Form B30 as the only evidence
which the Respondent intends to adduce in support of the alleged breach is
contained in a memo of interview between the Applicant and Inspector, Andrew
Fahy, taken on the 1st February, 1996, which information is been found to have
been obtained in breach of the Applicant's constitutional rights by Judge Flan
Brennan at Carrickmacross District Court on 22nd July, 1997.
(D) That
the Respondent's refusal to cease the said investigation amounts to a failure
on his part of vindicate the Applicant's right to constitutional justice and
fair procedures.
(E) That
there is an obligation on the part of the Respondent to comply with the
provisions of the Garda Siochana (Discipline) Regulations, 1989 and, in
particular, Regulation 38 thereof which the Respondent has failed to do.
(F) The
Respondent has been guilty of delay in that he failed to prosecute the matter
under the Garda Siochana (Discipline) Regulations, 1989 within a reasonable
time. That statement grounding the application for Judicial Review is dated
21st November, 1997. Laffoy J. made her order on Monday, 24th November, 1997.
4. The
statement of grounds for opposition dated 6th February, 1998 is as follows:-
(1) On
2nd February, 1996 an investigation of alleged breaches of discipline committed
by the Applicant was commenced pursuant to Regulation 8 of the Garda Siochana
(Discipline) Regulations, 1989.
(2) On
3rd February, 1996, the Applicant was admitted to hospital and he was released
from hospital on the weekend of the 13th/14th April, 1996.
(3) On
26th April, 1996 the Applicant was served with Form B33(b) in accordance with
Regulation 9 of the said Regulations.
(4) Following
the service of three summonses on 17th September, 1996 in respect of offences
contrary to Section 2 of the Larceny Act, 1916, as amended by
Section 9 of the
Larceny Act, 1990 and following the dismissal of the said summonses by the
District Court on 22nd July, 1997 a Form B30 was prepared on 29th September,
1997 for service on the Applicant alleging four breaches of discipline in
respect of discreditable conduct within the meaning of Regulation 6 of the
Garda Siochana Disciplinary Regulations, 1989 as described at reference No.1 in
the Schedule to the said Regulations. Forms B30 and B33(b) were served on the
Applicant on 20th October, 1997. The Applicant did not return a copy of the
Form B30 within the statutory 14 days period referred to at Regulation 12(d) of
the said Regulations. Proceedings were subsequently referred for consideration
of an appointment of an Inquiry Board in accordance with Regulation 14 of the
Regulations.
(5) It
is denied that by initiating an investigation or by the continuation of
proceedings pursuant to the provisions of the Garda Siochana (Discipline)
Regulations, 1989 into alleged breaches of discipline on the part of the
Applicant, the Respondent is acting contrary to the rules of natural and
constitutional justice or to the serious detriment of the Applicant.
(6) It
is denied that by initiating an investigation or by the continuation of
proceedings pursuant to the provisions of the Garda Siochana (Discipline)
Regulations, 1989 into alleged breaches of discipline on the part of the
Applicant and, in particular, into the alleged breaches as set out in
paragraphs 2, 3 and 4 of the Form B30 that the Respondent is failing to comply
with the Regulations and, in particular, Regulation 38 thereof.
(7) The
alleged breaches of the said Regulations are not the same in substance as the
offences referred to in the summonses dismissed on 22nd July, 1997 within the
meaning of Regulation 38 of the said Regulations. Further and in the
alternative, the Applicant was not acquitted of the said offences within the
meaning of Regulation 38.
(8) In
so far as it appears to be alleged at paragraph 5(c) of the statement grounding
application for Judicial Review that the Respondent may not adduce evidence
excluded by Judge Flan Brennan at Carrickmacross District Court, same is
denied.
(9) It
is denied that the Respondent's refusal to cease the said investigation amounts
to a failure to vindicate the Applicant's right to constitutional justice and
fair procedures.
(10) It
is denied that the Respondent has failed to comply with the provisions of the
Garda Siochana (Discipline) Regulations, 1989 and, in particular, Regulation 38
thereof.
1(11) It
is denied that the Respondent has been guilty of the unnecessary delay.
(12) The
Applicant is not entitled to the reliefs claimed or early release.
5. The
Applicant is a member of the Garda Siochana and was stationed at Carrickmacross
Garda Station in the County of Monaghan. He joined An Garda Siochana on 24th
September, 1974 and was initially stationed for some four years at Clones Garda
Station. He is a married man and resides with his wife and family in
Carrickmacross. On or about
1st
February, 1996, the Applicant was directed to attend a meeting with
Superintendent Andrew Fahy at Monaghan Garda Station. Having attended at the
said meeting, the Applicant was accused of stealing sums of money from
colleagues within the Station. During the course of the interview by
Superintendent Fahy, he made a number of admissions arising out of which the
Applicant was prosecuted for three counts of larceny and summoned to appear at
Carrickmacross District Court on 22nd October, 1996. The said summonses were
adjourned from time to time and eventually came before District Judge Flan
Brennan at Carrickmacross District Court on 22nd July, 1997 for a hearing.
During the course of the prosecution evidence, Counsel on behalf of the
Applicant made a number of submissions to the District Judge in which he
objected to Superintendent Fahy adducing evidence of what was alleged to have
been said by the Applicant during the course of being interviewed on the basis
that this evidence had been obtained in breach of the Judges' Rules and also on
the basis that the Criminal Justice Act of 1984 and the Regulations made
thereunder had not been adhered to. The District Judge rose for some time to
consider Counsel's submissions and thereafter ruled that the statement was
inadmissible as the Applicant was being detained against his will yet he was
not an arrested person. The District Judge subsequently dismissed all
summonses against the Applicant indicating that the evidence which the
prosecution sought to adduce had been obtained in breach of the Applicant's
constitutional rights. The District Judge also indicated that he was satisfied
there had been no deliberate breach of the Applicant's constitutional rights.
The Respondent caused the notice under Regulation 9 of the Garda Siochana
(Discipline) Regulations, 1989 together with accompanying documentation to be
served on the Applicant on or about 22nd October, 1997. The Applicant is now
the subject of an investigation under the Garda Siochana (Discipline)
Regulations, 1989 in respect of four alleged breaches of discipline. He
contends that the alleged breaches of discipline as set out in paragraphs 1 to
4 on the said B30 are identical to the summonses which were dismissed by
District Judge Flan Brennan on 22nd July, 1997. The four summonses were all
allegations of an offence contrary to Section 2 of the Larceny Act, 1916, as
amended by
Section 9 of the
Larceny Act, 1990. It goes on to allege that the
Applicant stole a sum of £10 from Gary O'Callaghan. One alleges that he
stole £30 from Sergeant David Ryan in the personal locker of Garda Gary
O'Callaghan and another that he stole £10 from Sergeant David Ryan and
stole £5 from Garda (now Sergeant) Regina McArdle.
6. These
were all fellow members of the Force at Carrickmacross Garda Station. The
Discipline Form dated 29th September, 1997 to Chief Superintendent Rooney asked
the Applicant whether he admitted or denied breaches of discipline numbered 1
to 4 set out on that document. The said breaches of discipline are set out as
follows:-
(1) Discreditable
conduct, that is to say, conduct which he knew would be prejudicial to
discipline in that he removed, without authority, a sum of money which amounted
to a minimal value of £5 from Garda (now Sergeant) Regina McArdle which
was in her personal locker at Carrickmacross Garda Station on a date unknown in
June, 1994.
7. The
said discreditable conduct is a breach of discipline within the meaning of
Regulation 6 of the Garda Siochana (Discipline) Regulations, 1989 and is
described at Reference No.1 in the Schedule of the said Regulations.
(2) Discreditable
conduct, that is to say, conduct which he knew would be prejudicial to
discipline in that on or about 29th January, 1996 he removed, without
authority, the sum of £30, property of Sergeant Dave Ryan, from the
personal locker of Garda Gary O'Callaghan at Carrickmacross Garda Station.
8. The
said discreditable conduct is a breach of discipline within the meaning of
Regulation 6 of the Garda Siochana (Discipline) Regulations, 1989 and is
described at Reference No.1 in a Schedule of the said Regulations.
(3) Discreditable
conduct, that is to say, conduct which he knew would be prejudicial to
discipline in that between 4.30 on 31st January, 1996 and 9.15 a.m. on 1st
February, 1996, he removed, without authority, a £10 note from Sergeant
Dave Ryan's jacket which was hanging in the briefing room at Carrickmacross
Garda Station.
9. The
said discreditable conduct is a breach of discipline within the meaning of
Regulation 6 of the Garda Siochana (Discipline) Regulations, 1989 and is
described at Reference No.1 of the Schedule to the said Regulations.
(4) Discreditable
conduct, that is to say, conduct which he knew would be prejudicial to
discipline in that on a date unknown between the 15th September, 1995 and 31st
January, 1996, he removed without authority the sum of £10 from the
personal locker of Garda Gary O'Callaghan at Carrickmacross Garda Station.
10. The
said discreditable conduct is a breach of discipline within the meaning of
Regulation 6 of the Garda Siochana (Discipline) Regulations, 1989 and is
described at Reference No.1 in the Schedule to the said Regulations.
11. Much
of the foregoing information is gleaned from the Affidavit of Thomas Murphy.
Superintendent Martin Crotty, Personal Section B Branch of the Garda Siochana,
Dublin 8 swore an Affidavit dated 6th February, 1998 for the purpose of
verifying the statements of grounds of opposition and relevant portions of his
affidavit read as follows:-
"4. I
say that on the 18th January, 1996 Garda Gary O'Callaghan reported to his
Supervisor, Sergeant Dave Ryan, that a sum of money was missing from his
personal locker in Carrickmacross Garda Station, Monaghan, Co. Monaghan.
Sergeant Ryan's subsequent investigation included the placing of two marked
£10 notes in Sergeant David Ryan's jacket in the Parade Room of
Carrickmacross Garda Station and the use of a hidden security video camera. On
the morning of 1st February, 1996 Superintendent viewed a video tape recorded
by this security video camera. On that day, Superintendent Fahy asked Sergeant
James Marks to arrange for Garda McGlynn to come to the station. Sergeant
Marks asked the Applicant to call to the station which he did. When he came to
the station, Sergeant Marks informed him that Superintendent Fahy wished to
talk to him in Superintendent Fahy's office. Sergeant Marks and the Applicant
went to the Superintendent's office arriving there at 6 p.m."
(5) On
2nd February, 1996, Superintendent Edward P.M. Murray was directed to carry out
a criminal investigation of the Applicant. He was also appointed on that date
in accordance with Regulation 8 of the Garda Siochana (Discipline) Regulations,
1989 to carry out a disciplinary investigation of the Applicant. The Applicant
was suspended from duty at 3 p.m. on 2nd February, 1996 by his Divisional
Officer, Chief Superintendent Colm Rooney for a period of three days. The
Applicant was admitted to St. Patrick's Psychiatric Hospital on 3rd February,
1996 and, consequently, Superintendent Murray was unable to serve the required
notice in accordance with Regulation 9 of the Regulations on Garda McGlynn. It
was proposed to continue the suspension of the Applicant. However, this did
not occur due to the Applicant's admission to hospital. The Applicant was
discharged from hospital on or about the weekend of the 13th and 14th April,
1996.
(6) On
26th April, 1996, Superintendent Murray interviewed the Applicant at the
Applicant's home. A number of questions were put to the Applicant but he
replied that he had nothing to say. Superintendent Murray made a memorandum of
the interview but the Applicant refused to sign it. On this occasion,
Superintendent Murray served a Form B33(a) on Garda McGlynn pursuant to
Regulation 9 of the Regulations.
(7) On
5th September, 1996, the Applicant was suspended from duty and he remains
suspended to date.
(8) On
17th September, 1996, summonses were served on the Applicant returnable to
Carrickmacross District Court on 22nd October, 1996....... The summonses were
adjourned on that date and were further adjourned on 28th January, 1997, 7th
February, 1997, 14th April, 1997 and 22nd April, 1997. On 22nd April, 1997 the
Applicant was put on election. He pleaded not guilty and opted to have the
case heard in the District Court. The case was then adjourned to 22nd July,
1997 for hearing. A number of these adjournments were made at the request of
the Applicant. It has been noted from the Affidavit of Superintendent Murray
and the Affidavit of Superintendent Crotty that the admissions made to
Superintendent Fahy and Sergeant Marks were held to be inadmissible by the
learned District Judge as the Applicant was not told in the course of the
interview or at the time he was formally cautioned that he was free to leave
the room during the course of the interview and that accordingly he was held
contrary to his constitutional rights when he made the admissions. The Judge
viewed a video tape of the Applicant allegedly taking a £10 note from the
pocket of Sergeant Ryan's jacket. As the evidence of handing over the marked
£10 to Superintendent Fahy was not admissible, the learned Judge dismissed
the charge in respect of the acts recorded.
12. Superintendent
Crotty continues at paragraph 10 of his Affidavit as follows:-
"I
say and believe and I am advised by Superintendent Murray that the summonses
were dismissed prior to the learned Judge having heard any oral evidence and
having considered the weight of the evidence or making any finding of fact. I
say that I am unaware of any indication by the learned Judge that the summonses
were being dismissed on the merits and I say that in all the circumstances, the
Applicant was not acquitted within the meaning of the Regulations."
13. He
then refers to the three orders made in the District Court by the Judge on 22nd
July, 1997.
14. It
is definitely undesirable to give hearsay evidence when Superintendent Murray
presumably could easily have given his own recollection of what happened in the
District Court.
15. Superintendent
Crotty avers at paragraph 11:-
"I
say that following the said hearing in the District Court, Superintendent
Murray was directed to continue the disciplinary investigation in respect of
the alleged breaches of discipline committed by the Applicant. On 22nd August,
1997, Superintendent Murray forwarded the complete file to the Appointing
Officer, Chief Superintendent Colm Rooney. On 29th September, 1997, four
breaches of discipline were prepared on Form B30 for service on the Applicant.
The breaches, together with Form B33(b), were served on the Applicant on 20th
October, 1997. I say and believe that I am so advised that the Applicant did
not return a copy of the Form B60 within the statutory 14 day period
(Regulation 12) in a admission or a denial and, accordingly, it was taken that
the breaches were denied. I say that the proceedings were then referred to the
Assistant Commissioner of the B Branch for consideration of the appointment of
an Inquiry Board in accordance with Regulation 14 of the Regulations. I say
that this is where the matter has stood before the order of this Honourable
Court dated 24th November, 1997."
16. Finally,
there is a further Affidavit sworn by Thomas Murphy. He is a partner in the
firm of Solicitors attending for the Applicant. This Affidavit is supplemental
to his original Affidavit sworn on 21st November, 1997 and in response to the
Affidavit sworn by Superintendent Martin Crotty on 6th February, 1998. He does
not agree with Superintendent Crotty that there was no oral evidence. He says:-
"I
say that the learned District Justice heard evidence from several witnesses who
were called on behalf of the prosecution (and he sets out a brief outline of
the proceedings of the District Court):-
'The
first witness was called on behalf of the defence as a character witness. He
was Ex-Superintendent Seamus O'Hanlon, who had served at the same station as
the Applicant for many years. This witness had certain difficulties in
attending the hearing in the afternoon and the prosecution agreed that he be
called out of sequence. He gave general evidence on character which was
favourable to the Accused. The first prosecution witness called was Garda Gary
O'Callaghan. He gave evidence that he had money in his locker in the locker
room at his station. He said that no other person had a key to the locker and
no one had permission to use it. He gave evidence of various amounts of money
going missing on various dates between September, 1995 and January, 1996. He
also gave evidence that money had been placed in his locker and marked with
indelible ink and he confirmed that that money had been taken. This witness
was not cross examined by the defence.
Sergeant
David Ryan was then called and sworn. This witness gave evidence of placing
marked notes in Garda O'Callaghan's locker. He said that the locker was
checked several times. He said that some of the money was taken but there was
no evidence that the locker had been forced open. He said that he took the
remaining money to the Superintendent and reported the matter. He said that he
placed the jacket in a briefing room with two marked £10 notes in it. He
said that he took the serial numbers of the notes. He said that when he
returned to the jacket some time later, one note was missing. He said that he
was aware of the existence of a surveillance camera in the room. He said that
he knew the tape was recording and identified the Applicant as being the person
on the tape. He said that he then notified the Superintendent.
This
witness was cross examined by the defence. He said that he was a good friend
of the Applicant and that he socialised with him. He said that the Applicant
was a good worker and obeyed the direction of his superiors. He said that he
would have no problem if the Applicant had gone to the jacket. He said that
once he had reported the matters to the Superintendent it was he, the
Superintendent, who had carried out the investigation. He said that the locker
room was always open and it is an area in the station where other guards would
be moving frequently. He said that there was no way of knowing if a guard
would enter the briefing room at any time.
Superintendent
Andrew Fahy was then called and sworn. This witness gave evidence that he
received a report of certain matters which he was obliged to investigate. He
said that he decided to interview the Applicant and asked Sergeant Marks to
direct the Applicant to call to see him. He said that the Applicant arrived at
his office at about 6 p.m. on 1st February, 1996. He said that after telling
the Applicant to sit down and relax, he then advised him of what he was
investigating. He said that the atmosphere was cordial. He said that he found
it difficult to get the Applicant to talk to him. He indicated that the matter
was very serious and he understood that the Applicant realised the seriousness
of it. He said that he was hoping that the Applicant would be able to offer
some explanation in relation to his actions. He was asked if he wished to
contact anybody but the Applicant declined to do so. He indicated to the Court
that the Applicant was not under arrest and was free to leave at any time.
Evidence was then given about what had been said during the course of the
interview. Mr. Moylan, S.C. on behalf of the Accused, objected to this evidence
and was allowed to cross examine the Superintendent on the taking of the note
of the interview. Superintendent Fahy was cross examined and confirmed that he
had seen the video and identified the Applicant from the video. He said that
he had wished to speak to the Applicant to find out did he have a problem, such
as drink or gambling. He said he was aware that the Applicant had lost a close
friend and colleague a couple of months before the interview and that he was
also aware that the Applicant had suffered a family bereavement shortly before
the interview. He said that he did not consider the Applicant as a criminal
suspect and he said that he was in a difficult position as he was an employer
as well as investigating the incident. He said that he did not caution the
Applicant immediately as he required an explanation from him.
Sergeant
Marks was then called and sworn. He said that he had been asked by the
Superintendent to get the Applicant to call to his office. He said that the
Applicant was sitting in his car across the street from the station. He said
that he told the Applicant that the Superintendent wanted to see him although
he did not tell him what it was about. He said that he proceeded with the
Applicant to the station and also proceeded with him up the stairs to the
Superintendent's office.
He
was then cross examined by Mr. Moylan, S.C. and confirmed that he did not
arrest or restrain the Applicant. He said that he and the Applicant were both
off duty at the time of the interview. He said that he had not directed the
Applicant to attend with the Superintendent and it appeared that he was
suggesting that it would have been different if he had been on duty. He said
that he was also aware of what was being investigated and that he was aware of
the video evidence. After this cross examination, Mr. Moylan made submissions
to the learned Judge in relation to the evidence which had been heard. The
principal submission made by him was that the Applicant was at all material
times a suspect in the investigation of a criminal offence and that the Judges'
Rules had not been adhered to in relation to the interview which was conducted.
He was satisfied that the interview had continued for one hour and some minutes
before a caution was administered. He said that there was no taping of the
first part of the interview. The Superintendent, during the course of his
evidence, did admit that he may have been incorrect in regards to the strict
letter of the criminal law but he did not intend to arrest the Accused without
affording him an opportunity of putting forward some explanation.
The
learned Judge rose to consider the issues raised. He stated some five to ten
minutes later, that he was of the view that the Superintendent had acted on the
night in question for the best possible reasons. He said the fact that the
Accused was a Garda and was going to his normal place of work or practice
should not affect his ruling. He said that he was of the view that when the
caution was administered he was less than free but yet he was not arrested. He
said that there was no half-way-house between detention and liberty. He said
that the Accused was under a compulsion and that, in the absence of following
the appropriate procedures, what occurred at the interview was tainted with
illegality and therefore the statements were inadmissible. Following this
ruling, two counts before the Court were dismissed.
The
case then proceeded and Sergeant Peter Kavanagh was called and sworn. This
witness gave evidence of installing the video camera in the briefing room and
he explained how the video worked. The video was shown to the learned Judge.
This witness was not cross examined.
Sergeant
David Ryan was then recalled. Sergeant Ryan identified the £10 note which
he had marked and showed the mark on the said note to the trial Judge.
Mr.
Moylan, S.C., on behalf of the Accused, objected to the introduction of this
evidence on the basis that it had been obtained while the Accused had been
illegally detained in accordance with his prior ruling.
The
learned Judge ruled in favour of this submission and ruled the evidence to be
inadmissible. Consequently, on this ruling, the third summons before the Court
was dismissed.'"
17. It
was not disputed by the Respondent that Mr. Murphy's Affidavit was a correct
summation of the history of what happened in the District Court. I have
already recited paragraph 10 of the Affidavit of Superintendent Martin Crotty
where he swears that the summonses were dismissed prior to the learned Judge
having heard any oral evidence. I do not accept the evidence of Superintendent
Crotty because that of Mr. Murphy obviously is much more reliable (as he was
the Solicitor present in Court) than that of Superintendent Crotty giving
hearsay (and inadmissible) evidence.
18. This
Court is satisfied that at the hearing before District Judge Flan Brennan of
Carrickmacross District Court, the Applicant was represented by Solicitor and
Counsel and the State was represented by the State Solicitor. This Court is
also satisfied that there was a substantive hearing of the case and that the
prosecution called a number of witnesses including Superintendent Fahy,
Sergeant Marks, Sergeant Dave Ryan, Garda Gary O'Callaghan and Sergeant Peter
Kavanagh and possibly others. During the course of the trial a number of
submissions were made by Counsel on behalf of the Accused with the result that
the learned trial Judge ruled the statements made by the Accused were made in
breach of the constitutional rights and disallowed any evidence in relation to
the statement. The video tape was played in Court and viewed by the trial
Judge. The prosecution closed its case.
19. This
Court had no doubt that there was a full and substantive hearing. At that
stage the defence applied for a direction. This was granted. The charges were
dismissed.
20. A
letter signed by Superintendent Martin Crotty on behalf of the Assistant
Commissioner and date stamped 12th November, 1997, reads as follows:-
"The
breaches of discipline preferred against your client, Garda John McGlynn, were
drafted without reference to the summonses which were previously issued. The
breaches do not allege criminality on the part of Garda McGlynn. Also, four
breaches of discipline were preferred against Garda McGlynn while he was
prosecuted for three alleged larcenies.
It
is further submitted that the Regulations 38(2)(b) of the Garda Siochana
(Discipline) Regulations, 1989 applies in this case and not Regulation 38(1).
The District Judge ruled that the admissions by Garda McGlynn were
unconstitutional from a legal prospective. However, that does not place the
admissions in other evidence outside the realms of disciplinary proceedings
which purports to establish if a member of An Garda Siochana has breached
internal working regulations."
21. The
curial part of the orders on all four summonses is as follows:-
"And
it was adjudged as follows: 'Dismissed'."
22. The
Order is signed by the Judge.
23. However,
it is submitted by the State that there were three summonses before
disciplinary complaints. However it is basically based on the same evidence
which has been held to be inadmissible. The decision of the District Judge has
not been appealed by Certiorari or otherwise.
24. For
the reasons already given the Court has indicated that it accepts the Affidavit
of Mr. Murphy rather than that of Superintendent Martin Crotty. Since the
District Court is a Court of record it creates an estoppel. To make the same
charges implying that one is criminal and the other is merely disciplinary is
to be semantic. In the circumstances the Court does direct that these enquires
be suspended and I will make such an Order as the parties may agree in
consequence of the findings already made.
© 1998 Irish High Court
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