THE Supreme Court yesterday ruled that a trainee garda dismissed by the authorities after doing a Tom Jones impression in, a pub can remain in the Garda Siochana.
However, the Supreme Court said Mr Gary Brian McAuley was not entitled to an order prohibiting the Garda Commissioner taking further disciplinary proceedings over the alleged incident.
It was a matter for the commissioner and the Garda authorities to decide if a further inquiry should be held into the alleged misconduct.
The High Court had overturned the decision to dismiss the trainee and the Garda Commissioner appealed to the Supreme Court yesterday, the Supreme Court also dismissed the commissioner's appeal against a part of the High Court order that Mr McAuley was entitled to damages.
Mr McAuley (27) was told in February 1994 that the Commissioner had decided he was unsuitable for continued employment as a trainee because he exposed him self in the presence of male and female students in a licensed premises and assaulted a female trainee.
Mr McAuley, of Kempton Way, Navan Road, Dublin, denied he, exposed himself intentionally or otherwise. He also denied he opened his fly or lowered his trousers or interfered with his under clothing.
In the High Court, Mr Justice Barr had stated he had no doubt the procedure adopted by the authorities regarding the charges was unfair. It amounted to a deprivation of Mr McAuley's right to constitutional justice.
Disciplinary proceedings were taken against him following an incident at Allen's licensed premises, Patrick Street, Templemore, on October 13th, 1993. Mr McAuley's group won a soccer tournament. Male and female members of his class went to the pub to celebrate.
Mr McAuley sang the Tom Jones song It's Not Unusual. Mr McAuley deposed that during the impersonation he loosened his belt and undid the top button of his jeans. He admitted that as he was returning to his place, he lifted the front of his T shirt and put it over a female trainee's head for a moment. He denied he was drunk, but conceded he had seven or eight pints of beer.
The next day, he was told the female trainee had been upset by his behaviour. He sought her out and apologised for his conduct.
She accepted the apology.
Mr McAuley heard nothing more of the incident for two months. It appeared no complaint was made by anyone who attended the function. But a sergeant on the college staff, who learned about the incident, reported it to a chief superintendent who began a disciplinary investigation.
In the High Court, Mr Justice Barr said the essence of fair procedures was openness. The minimalist approach of the Garda authorities in furnishing information and documentation to Mr McAuley did not accord with that concept. Yesterday, the Chief Justice Hamilton, said he was satisfied the trial judge was correct in holding Mr McAuley was deprived of his rights under the disciplinary code of his basic right to constitutional justice and fair procedures and that the purported termination of his traineeship was unlawful.
He said the commissioner and Garda authorities should not be precluded from conducting an inquiry into the alleged misconduct. It could not be assumed that such an inquiry would not be conducted in accordance with fair procedures. If it were, the decision made on foot of it would be subject to judicial review.
Mr Justice Blayney and Mrs Justice Denham agreed with the judgment of the Chief Justice.
Mr McAuley was not in court for yesterday's judgment but his solicitor said he intended to remain in the Garda force.