Eamon Cahill (applicant) v The Commissioner of An Garda Siochana (respondent).

Administrative Law - Evidence - Garda Siochana - Disciplinary inquiry - Judicial review - Whether fair procedures followed - Whether probationer garda unfairly dismissed - Whether evidence of relationship between complainant and witness constituted new evidence - Garda Siochana (Discipline) Regulations 1989 (SI 94) - Criminal Justice Act 1993 (No 6) - Rules of the Superior Courts 1986 (SI 15), Order 84 Rule 21.

The High Court (Mr Justice Roderick Murphy); judgment delivered 8 June 2000.

In a judicial review hearing the court was not concerned with the decision itself but with the decision-making process. In this instance the court held that the evidence of a relationship between the complainant and a witness could not be said to constitute new evidence. Neither could it be said that there was any evidence of perjured evidence having been tendered at the disciplinary inquiry into the applicant's conduct.

Mr Justice Murphy so held in holding that the applicant had not adduced any grounds to justify granting an order quashing the decision of the respondent that the applicant stood dismissed from An Garda Siochana.

Gerard Hogan SC and Robert Haughton BL for the applicant; Niamh Hyland BL for the respondent.

Mr justice Murphy outlined the facts of the case. The applicant had been a probationer member of An Garda Siochana. On 2 June 1996 after coming off duty the applicant had gone to a public premises with some colleagues. While there the applicant had allegedly engaged in inappropriate behaviour with a member of the public. As a result of this alleged incident two complaints were made on 6 June 1996 against the applicant. A disciplinary inquiry was held on 8 and 14 April 1997 at which the applicant denied both charges. The applicant was found in breach of discipline in relation to the first charge but not in breach of discipline in relation to the second charge. The decision of the disciplinary inquiry was affirmed by the appeal board on 2 March 1998. Thereafter the respondent made an order dated 6 March 1998 that the applicant was in breach of discipline in respect of the first charge. As of the 27 March 1998 it was the respondent's contention that the applicant stood dismissed from An Garda Siochana.

The applicant then instituted judicial review proceedings seeking a number of reliefs. The applicant sought orders of certiorari quashing certain findings including the decisions of the appeal board and the respondent. The applicant also sought an order of prohibition prohibiting members of the disciplinary inquiry taking any further steps in relation to the said complaints. The applicant claimed that none of the witnesses called on behalf of the complainant had witnessed the incident. The applicant also claimed that the presiding officer had relied on the evidence of a particular witness whose evidence as such was unreliable. In this regard the applicant claimed that there had been non-disclosure of a romantic relationship between that particular witness and the complainant. The applicant submitted that the failure to disclose such a relationship was a serious breach of procedures which resulted in both the disciplinary inquiry and the appeal board erring in jurisdiction and failing to afford the applicant a fair hearing.

Mr Justice Murphy stated that on 25 May 1998 the applicant's solicitor wrote to the respondent pointing out a number of factors and asked the respondent to rescind the respondent's order of 6 March 1998 and restore the applicant to the rank of garda in default of which judicial review proceedings would be taken. The applicant's solicitor also engaged the services of a private investigator who interviewed the wife of the witness whose evidence the applicant had disputed. The thrust of the wife's statements was that she had separated from the witness after Christmas 1997 and that the witness was living with the complainant from August 1998. In addition the wife believed that something had being going on between the witness and the complainant and that the alleged incident in question occurred on the lead up to this relationship.

The statement of opposition filed by the respondent objected to the application not being brought within the time limits as set out in Order 84 Rule 21 of the Rules of the Superior Courts and that the claim must therefore fall in limine. The statement of opposition denied that the applicant was not afforded an opportunity to defend himself at the hearing of the inquiry. In addition it was denied that the alleged relationship between the witness and the complainant constituted a material fact for the purpose of the inquiry. It was also submitted that if the disciplinary inquiry and the appeal board had erred, which was denied, they had done so within jurisdiction. A former superintendent ("the superintendent") gave evidence on behalf of the respondent. The superintendent denied that the evidence presented at the inquiry was purely circumstantial. The superintendent referred to the evidence of the complainant and the corroboration of this evidence by the barmen in the premises. In addition the superintendent noted that the applicant's own representatives took no objection at the disciplinary inquiry to the evidence of which the applicant now complained. In addition the superintendent stated that the particular witness was presented to the appeal board as someone who was friendly with the complainant.

Mr Justice Murphy then referred to the submissions by Mr Hogan SC on behalf of the applicant. Mr Hogan submitted that the existence of a romantic relationship between the witness and complainant was highly relevant as to credibility. Mr Hogan submitted that if this situation fell to be considered under the Criminal Justice Act 1993 it would be regarded as a newly discovered fact which would have been of sufficient importance to warrant the quashing of a conviction and in this regard referred to the cases of People v Meleady [1995] 2 IR 249 and People v Pringle [1995] 2 IR 547. In addition counsel referred to R (Burns) v County Court Judge of Tyrone [1962] NI 167 where Lord MacDermott stated 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". In essence Mr Hogan submitted that if the applicant's averments were to be accepted then the evidence of the witness in question would be seen in an entirely different light. As such the presentation of the evidence by the witness as a dispassionate witness would be manifestly false. Thus one could say that the findings of the disciplinary inquiry and the appeal board were procured by fraud (in the special legal sense) and that misleading evidence was given by a crucial witness. As such this would enable the High Court to exercise its supervisory jurisdiction to quash the applicant's dismissal.

Mr Justice Murphy then referred to the submissions by Niamh Hyland BL, counsel for the Respondent. She submitted that there were a number of hurdles which the applicant had to clear. The applicant must demonstrate the existence of new evidence and had failed to do so. The romantic relationship in question could be said to have started after the date of the incident in question and the assertion that the incident occurred on the "lead up to this relationship" was vague and did not differ from evidence already given. In addition such a belief was not a statement of fact and was not a basis for certiorari. Counsel also submitted that if there had been a relationship at the time of the incident or at the time of the disciplinary hearing it would then require a large jump to assume that the evidence in question would be excluded. As such sworn evidence carries with it the presumption of truth. In addition it was contended that if the evidence of that particular witness was excluded the evidence of one of the bar staff, which was similar to that of the witness, would have been sufficient.

Reference was also made to the case of Stokes v District Justice O'Donnell [1996] 2 ILRM 538 where Miss Justice Laffoy had refused to grant an order of certiorari in circumstances where an applicant had submitted that there had been a fundamental gap in the evidence tendered by a prosecuting garda with regard to the applicant's insurance details. In this case the applicant had 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.

Mr Hogan in reply distinguished pure hearsay from the evidence in relation to the living arrangements of the witness and the complainant and in addition asserted that the decision in Stokes did not deal with new evidence.

Mr Justice Murphy in giving his decision held that the decision in Stokes was relevant in so far as the nature of judicial review is concerned. As such judicial review was not concerned with the decision but the decision making process. The witness in question was not presented as the only independent witness. There was corroboration available from the bar staff as to what the applicant was alleged to have said after the complaint had been first put to him. In addition that particular witness had been presented as an acquaintance of the complainant and the solicitor for the applicant had rightly pointed out to the appeal board that the witness should be regarded as being on the side of the complainant. Accordingly the hearsay evidence of the wife of the witness as to the relationship between her husband and the complainant, even if it was against her interest, could not be considered to be a newly discovered fact.

Mr Justice Murphy said that the court had no hesitation in adopting the dicta of Lord MacDermott in the Burns case. Orders procured by fraud, including perjury, should most properly be quashed. There was however no evidence that perjured evidence had been given by any of the witnesses. There was an essential difference between seeking to impugn evidence on the grounds of a relationship as opposed to impugning the same evidence on the grounds of perjury. In the Burns case Lord MacDermott had also stated: "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 Australia v Willan (1874) LR 5 PC 417, at 450. This court cannot rehear a case or come to a conclusion between one version of the facts and another."

Despite the reference by counsel for the applicant to the Meleady case there was no evidence in this present application that the relationship in question was new evidence or affected the credibility of the witness. Certainly it could not be said that there was evidence of fraud or perjury. Accordingly the applicant had not adduced any evidence to justify granting the relief sought and the application was refused.

Solicitors: John Cooke (Limerick) for the applicant; Chief State Solicitor for the respondent.