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Lohan v. Garda Commissioner [1998] IEHC 73 (13th May, 1998)

THE HIGH COURT

JUDICIAL REVIEW

No. 44 J.R. 1995

BETWEEN

ANN LOHAN

APPLICANT

AND

THE COMMISSIONER OF AN GARDA SIOCHANA

RESPONDENT

JUDGMENT of Mr. Justice McCracken delivered the 13th day of May 1998

THE ISSUE

1. The Applicant was a Ban Garda who in 1994 faced a number of disciplinary charges under the Garda Siochana (Discipline) Regulations, 1989. These primarily concerned very serious allegations which she had made against other members of the Gardaí, the nature of which are not relevant to the issues I have to decide. The charges were heard at a sworn inquiry constituted under the Disciplinary Regulations, and there is no challenge to the procedures leading to the setting up of the inquiry, or indeed to the composition of the Board of Inquiry. The Inquiry commenced on 25th October, 1994. It sat spasmodically for the next four weeks, although it heard very little evidence, and was adjourned from time to time either at the Applicant's request or due to her absence. Finally, on

24th November, 1994, the Board of Inquiry sat, but the Applicant was again absent. The Board of Inquiry resolved, pursuant to Regulation 34 of the Garda Siochana (Discipline) Regulations, 1989 to proceed with the Inquiry in her absence. The Board of Inquiry sat again on 25th November, 1994, and again the Applicant was absent, and they found her guilty on a number of the counts with which she was charged, and recommended to the Respondent to take disciplinary action against her. As a result of this finding she was dismissed from An Garda Siochana with effect from 14th February, 1995. The Applicant complains that the proceedings of the Board of Inquiry in her absence was contrary to the principles of natural and constitutional justice and did not comply with basic fairness of procedure.

2. The conduct of the proceedings is set out in detail in the Affidavit of Detective Superintendent Cormac Gordon, which Affidavit also exhibits a transcript of the entire proceedings before the Board of Inquiry. The Applicant has not filed any Affidavit contesting this account of the proceedings, and I therefore assume it to be accurate.

3. Regulation 34 of the Discipline Regulations provides:-

"Where, because of the absence of the member concerned, compliance with a requirement of these Regulations is not possible, proceedings may take place notwithstanding such non-compliance if any Inquiry or an Appeal Board (as the case may be) is satisfied that this is reasonable in all the circumstances".

4. The decision to continue the Inquiry in the absence of the Applicant was expressly made by reference to this Regulation, and the transcript for 24th November records that the three members of the Board of Inquiry unanimously agreed that it was reasonable to continue the proceedings in her absence.

THE CONDUCT OF THE INQUIRY

5. The Inquiry sat in all on eleven separate days, although it did not hear evidence on a number of those days. I think it is simplest to set out the history of the events in relation to each of these sittings.

1. 25th October, 1994

6. The Inquiry commenced on this day, in the presence of the Applicant. It considered three of the lesser charges against the Applicant, which were the subject matter of a separate disciplinary investigation from the rest of the complaints, and the Applicant was found guilty of breaches of discipline in relation to two of the three charges.

2. 26th October, 1994

7. The Board of Inquiry then went on to consider the remaining charges against the Applicant. Some of these charges related to allegations made by her in a statement which the Applicant made to Superintendent Butler on

13th October, 1992. When this statement was produced in evidence at the hearing, the Applicant challenged her signature at the bottom of the statement and the Board of Inquiry proceeded to hear evidence from other persons present when the statement was signed, including a witness called by the Applicant. After hearing this evidence the Board of Inquiry decided to admit the statement and continued to hear further evidence. Towards the end of the hearing on that day the Applicant again protested that the signature on the statement was not hers.

3. 27th October, 1994

8. When the Board of Inquiry sat the Applicant intimated that she wanted to make inquiries as to the possibility of having her signature on the statement analysed by an independent person. She asked for an adjournment until lunch time, but was in fact only granted an adjournment for thirty minutes. The Board of Inquiry then continued to hear evidence in relation to the charges against her. At the end of the day's hearing the Applicant again denied that the signature on the statement was hers.

4. 28th October, 1994

9. The Applicant sought an adjournment of the Inquiry to enable her to have her signature on the statement analysed. The Board of Inquiry agreed to adjourn and to allow the Applicant to have the statement inspected by a handwriting expert at Garda Headquarters. The Applicant requested that the original statement be given to her, and when the Board ruled that she could only inspect it at Garda Headquarters, she stated that she intended to make an application to the High Court. The Board adjourned the Inquiry until

1st November.

5. 1st November, 1994

10. The Applicant did not appear on this occasion. A telephone call was received at Fitzgibbon Street Garda Station, where the Inquiry was being held, by somebody claiming to be speaking on behalf of the Applicant and that she would be there as soon as possible. The Board sat several times during the day, but the Applicant did not appear. No evidence was heard by the Board.

6. 2nd November, 1994

11. The Board sat and a faxed message addressed to the Chairman of the Inquiry from the Applicant was read out. It stated that the Applicant was ill, and the Inquiry was adjourned until the next day.

7. 3rd November, 1994

12. The Applicant again did not appear, and after some inquiries were made it was established that the Applicant had made an application in the High Court which had been adjourned until 7th November. Accordingly, the Board of Inquiry adjourned until 8th November.

8. 8th November, 1994

13. As the Applicant's application to the High Court was adjourned for hearing on 14th November, it was decided to adjourn the Inquiry until 17th November.

9. 23rd November, 1994

14. The Applicant's case before the High Court had been heard on 14th November, and the Court ordered that the Applicant was to have facilities to examine the statement with her expert before 5.00 o'clock on 18th November. This was in fact the facility which had already been offered by the Board of Inquiry. The Court also informed the Applicant that the Inquiry would not resume until 23rd November to enable the inspection to take place and advice to be given to her. She was also told by Inspector Cummins outside the Court that the Inquiry would resume at 10.00 a.m. on 23rd November. When the Inquiry did resume, the Applicant did not appear, but the Chairman of the Inquiry received a faxed message at about 10.30 from the Applicant stating that she was going back to the High Court because of certain events which occurred at Bray District Court on 18th November where she had been a witness in a case. The faxed message also stated that she had not appeared personally to apply for the adjournment because a minor who was staying with her was in hospital and about to be discharged. The Board of Inquiry decided to adjourn until the following day at 10.00 a.m., and the Chairman stated that the Applicant was to be directed to be present, and that she should be notified that, if she was not present, the Inquiry would continue in her absence.

10. 24th November, 1994

15. The Board of Inquiry again sat, and the Applicant was not present. Inspector Cummins gave evidence that he had spoken to the Applicant the previous afternoon and directed her to attend, and left her in no doubt that it was the intention of the Board to proceed with the Inquiry on 24th November. She told Inspector Cummins that it was her intention to go back to the High Court to have the Inquiry stopped and to seek a Judicial Review. That morning the Applicant sent a faxed message to the Chairman of the Inquiry confirming that she had been told that the Inquiry would resume on 24th November even if she were not there. She complained that this was a breach of her constitutional rights and was illegal. She again complained of events which had taken place the previous Friday in Bray District Court. She said she would be going to the High Court with a view to making an application to stop the Inquiry. In the course of the message she also stated that she was very happy with the report by the handwriting expert on her statement. The Board of Inquiry then decided to continue in the absence of the Applicant, and inter alia it heard evidence from a Sergeant Lynch as to the examination of the Applicant's statement both by him and by the Applicant's expert. Sergeant Lynch confirmed that, in his view, the signature on the statement was that of the Applicant. It should also be said that the expert advice which the Applicant received from Mr. James Nash was that he noted no apparent evidence of forgery. In an addendum to her letter sent to the Chairman of the Board the Applicant also said:-

"Chief Superintendent Culhane,

I am going sick. I have been up all night with my glands in my neck and pain in my ear. So once this fax has been sent I am going back to bed. I will be sick tomorrow also I do not want any callers to the house. I am sick and so is Fiona. I will send in a sick certificate to the Board."

16. After the fax had been read out, the Board adjourned to consider what action it would take, and then ruled as follows:-

"The Board, having considered the evidence of Inspector Martin Cummins and also the faxed message received this morning from Garda Ann Lohan and having regard to the provisions of Regulation 34 of the Garda Siochana Discipline Regulations have unanimously decided that this Inquiry should proceed in her absence and we are satisfied that such a decision is reasonable having regard to all the circumstances."

11. 25th November, 1994

17. The Applicant again did not appear and it was confirmed to the Board of Inquiry that no sick certificate or any other communication had been received from her. It also appeared that no application had been made to the High Court. Accordingly, the Board of Inquiry found the Applicant guilty of a number of the disciplinary charges against her.

THE LAW

18. Under Regulation 34 of the Garda Siochana (Discipline) Regulations, 1989 it is quite clear that a Board of Inquiry may proceed in the absence of the member whose conduct is being inquired into if the Board is satisfied that this is reasonable in all the circumstances. The Board expressed themselves to be so satisfied, but, of course, I am entitled to consider whether that decision was so irrational or unreasonable that no Board of Inquiry could reasonably have reached it. I am also entitled to look at the procedures in general, as there is no doubt that a Board of Inquiry such as this must not only comply with its own internal regulations, but must also comply with the principles of natural and constitutional justice.

19. The Applicant relied strongly on the Judgment of the Supreme Court in O'Callaghan -v- District Judge Clifford (1993) 3 I.R. 603. This was a case in which the Applicant had been charged with a Revenue offence, in which the Revenue were entitled to give prima facie evidence by way of certificate. At the hearing before the District Judge, Counsel for the Applicant applied for an adjournment on the basis that the Applicant was not present but would be in the Court by about 4.30, and that he, Counsel, wished to take instructions from his client. Denham J. said at page 611:-

"The adjournment of a case is a matter for the discretion of the District Court Judge. It must be exercised as a judicial discretion within constitutional parameters. It is a matter on which appellate Courts should intervene cautiously.

However, in this case there were important factors which a Court must consider and they include:-

1. This was a criminal trial with the consequent possibilities of a penalty of imprisonment (which in fact happened).

2. This was the first time this case had come before the Court.

3. Counsel had not had an opportunity of obtaining instructions from the Applicant.

4. Because of the nature of the prosecution, by certificate, matters could arise on trial (such as to how the notice was served) which even if the Applicant had had an opportunity to instruct Counsel prior to the trial (which was not the case here) he would not have been able to instruct fully in advance.

5. The Applicant was to be in Court at 4.30 p.m.

6. The witnesses which the State indicated were in Court were for sentencing purposes only.

The essence of constitutional justice is the audi alteram partem rule, and the right to have instructed Counsel to defend one's case. In The State (Healy) -v- Donoghue (1976) I.R. 325 at page 335, Gannon J. said (which was approved by the Chief Justice at page 349):-

Among the natural rights of an individual whose conduct is impugned and whose freedom is put in jeopardy are the rights to be adequately informed of the nature and substance of the accusation, to have the matter tried in his presence by an impartial and independent court or arbitrator, to hear and test by examination the evidence offered by or on behalf of his accuser, to be allowed to give or call evidence in his defence, and to be heard in argument or submission before judgment can be given.

In the circumstances of this case, taking into account the six factors listed previously in relation to this criminal trial, and that the fair administration of justice requires that the Applicant have the opportunity either that he be heard or his instructed Counsel be heard at his criminal trial, I am satisfied that in this instance the learned District Court Judge exceeded his jurisdiction in not either putting the matter back to 4.30 p.m. or adjourning the case".

20. It should be emphasised that the decision in that case was dependant on the six factors set out in the Judgment. In Rock -v- Governor of St. Patrick's Institution (Supreme Court 22nd March, 1993, unreported) O'Flaherty J. dealt with a case where the Applicant did not appear at the hearing of the District Court, and said at page 8 of the Judgment:-

"The submission is that this Defendant was not given 'every opportunity' to defend himself. In my judgment this must be construed, like every obligation which is imposed on a judicial office holder, as being one to afford every reasonable opportunity to a Defendant to make his defence and equip himself to make his defence.

Here the District Judge was not in default: it was the Defendant who chose not to present himself in Court and, therefore, his possible entitlement to free legal aid could not be adjudicated upon by the District Judge."

21. Finally, I would refer to a decision of Murphy J. in a case of Lawlor -v- Hogan (1993) I.L.R.M. 606. This again was a case in which the Accused did not appear at his trial. At page 610 the learned Judge said:-

"As the researches of Counsel have been unable to put the matter any further, I can only deal with the matter on first principles, which would seem to involve the following propositions:-

(1) that in so far as the judicial process in criminal matters expressly requires matters to be dealt with by or in relation to the individual accused, clearly he must be present to enable those functions to be performed.

(2) the right of an accused to be present and to follow the proceedings against him is a fundamental constitutional right of the accused which every Court would be bound to protect and vindicate.

(3) if a trial Judge is satisfied that the accused has consciously decided to absent himself from the trial (at a time when his presence is not essential to enable some particular procedure to be complied with) then the trial Judge would be entitled in his discretion to proceed with the trial in the absence of the accused.

In the circumstances I am satisfied that the trial Judge was entitled to exercise his discretion in the manner in which he did and to proceed with the trial notwithstanding the absence of the accused"

FACTORS IN THIS CASE

22. There are several factors in this case which distinguish it from any of the cases cited before me. Firstly, the Applicant consciously decided that she would not appear before the Tribunal on the date which had been fixed in the High Court for its resumption. She also decided not to appear on the two following days. She did not make any application for an adjournment as such, but indicated that she was going to apply to the High Court to stop the Inquiry, which she did not in fact do.

23. I am also satisfied that, prior to 23rd November, the Board of Inquiry had done everything possible to assist the Applicant, particularly in relation to her challenge to the statement she had made. They not only adjourned to allow her to apply to Court, but they also allowed her short adjournments on a number of occasions to consider her position. When she did not appear on 23rd November, they again adjourned and warned her that if she did not appear the following day, the Inquiry would continue in her absence. Nevertheless, she chose not to appear.

24. I am also influenced by the fact that, somewhat astonishingly, the Applicant has not filed an Affidavit to support this application. The only evidence on her behalf is the evidence of Thomas Joseph Colgan dated 13th November, 1995. Mr. Colgan was her then solicitor but is no longer representing her. As Mr. Colgan did not represent her before the Inquiry, the matters set out in his Affidavit must have come from information given to him by his client. This Affidavit was the grounding Affidavit upon which the Applicant obtained leave to issue these proceedings, and in my view it is misleading in a number of particulars. At paragraph 6 it implies at least that the High Court had made an Order in relation to the inspection of her statement which was not in accordance with the offer made by the Board of Inquiry. In fact the Court ordered exactly what the Board of Inquiry had already offered. Furthermore, in paragraph 8 it is stated that the Applicant attended a Dr. Marshall between the 23rd and 24th November who determined that she would be unfit to continue her duties up to 5th December, 1994, and that a medical certificate was produced covering the period in question. While the medical certificate is dated 26th November, it was not in fact sent to the Board of Inquiry until 20th January, 1995.

25. Finally, and most seriously, in Paragraph 10 of his Affidavit Mr. Colgan states:-

"It is clear therefore that the aforesaid sworn Inquiry was reconvened at a time and at a place which was not disclosed to the Applicant herein whereat it was determined in the first instance by Chief Superintendent Culhane, and Superintendents Sheehan and O'Shea that a recommendation be forwarded to the Commissioner of An Garda Siochana with a view to him adopting one of the disciplinary actions set out in Regulation 20(1)(c)(ii) of the Garda Siochana (Discipline) Regulations, 1989."

26. I have no doubt that the Applicant was aware at all times of the time and place in which the Inquiry was going to take place and that she made a deliberate decision to absent herself from the Inquiry, firstly citing an intention to apply to the High Court which she did not do, and, secondly, stating that she was ill and would send in a certificate, which she also did not do so until long after the Inquiry had concluded. It is also notable that there is no evidence before the Court from Dr. Marshall.

27. I should add that in making these comments on Mr. Colgan's Affidavit, I am in no way implying any wrongdoing on his part. I am quite satisfied that anything he averred to was what he was told by his client, and, therefore, any inaccuracies in his Affidavit are the inaccuracies of his client and not of Mr. Colgan.

CONCLUSION

28. Accordingly, I am quite satisfied, firstly, that the Tribunal acted in accordance with its own regulations, and, secondly, that in conducting the Inquiry, the Board of Inquiry at all times acted reasonably and in accordance with the principles of natural and constitutional justice. In particular, in the light of the events which occurred, the Board of Inquiry was perfectly entitled to continue the Inquiry in the absence of the Applicant.

29. Accordingly, I would refuse the relief claimed.