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Cite as: [2002] IEHC 123

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THE HIGH COURT

JUDICIAL REVIEW

RECORD NO. 67JR2001

BETWEEN

JOHN PAUL CULLIGAN

APPLICANT

AND

GARDA SIOCHANA COMPLAINTS BOARD

RESPONDENTS

Judgment delivered by Mr. Justice Finnegan delivered on the 8^th day of April 2002

The Applicant was granted leave to apply by way of an application for Judicial Review for the following reliefs -

(1) An Order in the nature of a Mandamus requiring the Respodent to carry out a full and proper investigation prior to a disciplinary enquiry as required by the Garda Siochana (Complaints) Act, 1986.

(2) An. Order commanding the Respondent to call certain witnesses at any future disciplinary enquiry.

Leave was granted on the following grounds -

(1) Pursuant to statute being the Garda Siochana (Complaints) Act, 1986 and in particular section 6 thereof prior to referring any complaint to a Tribunal the Commissioner is obliged pursuant to the statute to have the complaint if it is an admissible complaint investigated by an officer not below the rank of superintendent or if he considers the circumstances so warrant the rank of inspector. In this case Superintendent Dillane was appointed to investigate the complaint of Gerald Abraham and in the circumstances and evidence that have arisen the Applicant contends that no proper investigation of the complaint was carried out prior to the matter being sent to the Tribunal. The initial complaint against the Applicant was of an abuse of authority and harassment and it appears from the evidence of Superintendent Dillane that he did not investigate the abuse of authority aspects of the complaint.

(2) The prosecutor at the Tribunal indicated that he would not call certain witnesses namely Roland Connolly and Mary Dineen-Long. Both of the foregoing are material witnesses to facts being persons who were present with the Applicant in this case wl,[en he visited the premises of Mr. Gerald Abraham enquiring into an allegation of Mr. Abraham handling stolen property and when both of the foregoing named witnesses identified property as being their own claimed that property for themselves and subsequently went to the court to give evidence that the property was indeed theirs.

There are two issues which arise on this application -

(1) Was an investigation carried out in compliance with the Garda Siochana (Complaints) Act, 1986 ("the Act") section 6 thereof.

(2) If the prosecutor before a Tribunal established under section 8 of the Act to which a matter is referred pursuant to section 7 of the Act has a discretion as to the witnesses whom he may call or is obliged to call a witness whose evidence is favourable to the member concerned.

The Facts

The Applicant is a Detective Garda. In the course of investigating the theft of property belonging to Roland Connolly and Mary Dineen-Long he called at premises the property of Gerald Abraham. Arising out of his dealings with Mr. Abraham a complaint was made by Mr. Abraham. The Chief Executive of the Respondent determined the complaint admissible in accordance with the provisions of section 4(3) of the Act. Superintendent Dillane was appointed to investigate the complaint pursuant to section 6(1) of the Act and he carried out an investigation. The notification to Superintendent Dillane under section 6 of the Act gave details of the nature of the complaint as follows -

"Complainant alleges abuse of authority and harassment at Unit 31A, St. Patrick's Woollen Mills, Douglas, Cork".

In his report of his investigation Superintendent Dillane states -

"The allegations in this complaint are that (the Applicant was) abusive and harassed Gerald Abraham ".

The complaint itself runs to 7½ closely typed pages and alleges abusive statements by the Applicant.

Superintendent Dillane made a report to the Respondent from which it appears that two independent witnesses who were present for much of the Applicant's dealings with Mr. Abraham denied that the Applicant was abusive. However Mr. Abraham's complaint was supported by a witness who was not regarded Superintendent Dillane as independent. He concluded -

"Having investigated the complaint to the very best of my ability I cannot find any evidence to back up the complaints ".

The Respondent considered the report together with the comments and recommendation of the Chief Executive pursuant to section 6 of the Act and was of opinion that a breach of discipline on the part of the Applicant may be disclosed therein and referred the matter to a Tribunal pursuant to section 7(5) of the Act. By letter dated 6th July 1999 the Applicant was furnished with a statement of the breaches of discipline alleged against him three of which are relevant to these proceedings and are as follows -

(1) Abuse of authority, that is to say oppressive conduct towards a member of the public.

The exact nature of the breach is that on the afternoon of the 11th September 1997 at 3 St. Patrick's Woollen Mills, Patrick Street, Douglas, Cork, you used intimidatory language to Mr. Abraham in that you said "If he thought he was a big man you would get a few people around to go through his unit" or words to that effect.

(2) Abuse of authority, that is to say oppressive conduct towards a member of the public.

The exact nature of the breach is that on the afternoon of 11th September 1997 at 3 St. Patrick's Woollen Mills, Douglas, Cork, you threatened Mr. Abraham that you would have him before the courts and have his fucking ass deported back to Trinidad or wherever it was he came from or words to that affect.

(3) Abuse of authority, that is to say oppressive conduct towards a member of the public.

The exact nature of the breach is that on the afternoon of 11th September 1997 having entered Mr. Abraham's premises at 31A St. Patrick's Woollen Mills, Douglas, Cork, without a search warrant you refused to leave when asked to do so by Mr. Abraham.

Schedule 4 to the Act specifies the conduct which may amount to a breach of discipline and includes abuse of authority which is dealt with as follows -

"Abuse of authority, that is to say oppressive conduct towards a member of the public, including

(a) Without good and sufficient cause making an arrest, or

(b) Using unnecessary violence towards any person with whom the member is brought into contact in the execution, or purported execution, of his duty".

Before the Tribunal Superintendent Dillane was questioned as to his understanding of what he was to investigate. The cross examination centred on the failure of the Applicant to furnish a receipt for the allegedly stolen furniture which was removed from Mr. Abraham's premises. In the statement of breaches of discipline furnished to the Applicant this was dealt with as follows -

(1) Neglect of duty, that is to say without good and sufficient cause failing or neglecting promptly to do a thing which it was your duty as a member to do.

The exact nature of the breach is that on the afternoon of 11th September 1997 having seized a pine cupboard from Mr. Abraham's premises at 31A St. Patrick's Woollen Mills, Douglas, Cork, you did not issue a receipt for it.

(2) Neglect of duty, that is to say without good and sufficient cause failing or neglecting promptly to do a thing which it was your duty as a member to do.

The exact nature of the breach is that having seized a mahogany table from Mr. Abraham's premises at 31A St. Patrick's Woollen Mills, Douglas, Cork around noon on the 12th September 1997 you did not issue a receipt for it.

As I understand the import of the cross examination it was that Superintendent Dillane was to investigate a complaint of abuse of authority and not of neglect of duty and that therefore he did not investigate the matter of the issue of a receipt. The issue of the receipt is not dealt with in Superintendent Dillane's report. However the Board raised queries with Superintendent Dillane following receipt of his report and by letter dated 13th May 1998 enquired of him whether receipts issued in respect of the furniture in question and to that he responded in writing in the following terms –

"There were no receipts issued or requested for either piece of furniture "

It is clear from Superintendent Dillane's evidence and from his report that he did not attach significance to the failure to give a receipt although it was a matter referred to in the statement of Mr. Abraham. The thrust of the cross examination of Superintendent Dillane by the Applicant's solicitor was that the investigation concentrated on the matters which I mention above which were categorised in the statement of the breaches of discipline as neglect of duty and did not encompass abuse of authority being the category of breach of discipline charged in relation to the failure to give receipts.

It is against this background that I have to determine whether or not an investigation in compliance with the requirements of the Act section 6 was carried out by Superintendent Dillane. The instruction to Superintendent Dillane to carry out the enquiry is in form G.SCA and under ^-the heading of nature of complaint states as follows -

"Complainant alleges abuse of authority and harassment at Unit 31A St. Patrick's Woollen Mills, Douglas, Cork ".

However with that form he was given the full text of Mr. Abraham's complaint. His function I am satisfied was to investigate that complaint in its entirety and to report on the same to the Respondent. From his answers in cross examination it would appear that he did not address the issue of receipts until he received the enquiry from the Respondent subsequent to furnishing his report. However he then checked the position before replying to the Board. In these circumstances I am satisfied that Superintendent Dillane did indeed investigate the matter of the receipts.

Insofar as it is suggested that Superintendent Dillane was not appointed to enquire into matters which appear in the statement of breaches of discipline as neglect of duty but only abuse of authority I am satisfied that this arises from a misapprehension. The Applicant rightly says that there are two stages in issue here the investigation and the hearing. It is quite clear from section 9 of the Act that upon completion of the investigation it is a function of the Chief Executive to determine the particular breach or breaches of discipline to be alleged against the member concerned before the Tribunal. Section 9(1) provides as follows -

"(1) Where a matter is referred to a Tribunal under section 7(5) of this Act –

(a) The Chief Executive shall determine the particular breach or breaches of discipline to be alleged against the member concerned before the Tribunal".

Accordingly there is a division of functions. Superintendent Dillane's function was to investigate the facts and circumstances and report on the same. In this case what Superintendent Dillane was to have regard to was the complaint not the summary of the

complaint which appeared in form G.SC.4. The nature of the breach or breaches of discipline to be alleged against the member were not a matter which concerned him but rather were a matter for the Chief Executive to be determined after and not before the report of Superintendent Dillane was submitted to the Respondent. I am satisfied that an investigation in accordance with the requirements of section 6 of the Act was carried out by Superintendent Dillane.

As to the second issue the Applicant contends that what occurs before the Tribunal is an enquiry and that it follows fiom this that there is an obligation on the prosecutor to call witnesses favourable to the member concerned and present them for cross examination. A particular difficulty arose at the hearing in that Mary Dineen-Long a witness favourable to the Applicant attended on the first day but was not available for the second day. She was not called by the prosecutor whose case had not finished on the first day and it was not his intention to call her.

I am satisfied that in the absence of any contrary rule or practice it is the task of the party calling a witness to arrange for his attendance at a hearing. However justice requires that a respondent: before a tribunal should have the facility to obtain the attendance and examination of witnesses on his behalf. It is the duty of a tribunal to assent to any proper request of a respondent to call witnesses on his behalf and to be prepared to do all in its power to assist in securing their attendance. The Act in the second schedule provides a framework for proceedings before the Tribunal. Paragraph 7 of the schedule provides that the Chairman of the Tribunal may direct in writing any person whose evidence is required by the Tribunal to attend before the Tribunal to give evidence: failure of such a person to attend is an offence. The Applicant by letter dated 21 st July 1999 pursuant to paragraph 6 of the Schedule sought the attendance inter alia of Mary Dineen-Long. In these circumstances I am satisfied that it was the duty of the Tribunal to procure her attendance. While her attendance was indeed procured it would appear that she would not have been available when the Applicant required her to give evidence on his behalf.

I reject the Applicant's submission that the onus rested on the prosecutor to call Mary Dineen-Long and to allow her to be cross examined by the Applicant. In Hughes v Commissioner of An Garda Siochana unreported 23rd July 1996 McCracken J. said of a prosecutor in disciplinary proceedings under the Garda Discipline Regulations 1989 (S.I. No. 94 of 1989) -

"However Superintendent Carthy's function was to present the case against the Applicant to the enquiry and I can see no objection whatever to him ultimately summing up the case at the request of the Board of Enquiry ".

I am satisfied that this correctly states the function of a prosecutor before a tribunal established under the Act. However it would be quite wrong for the Tribunal to proceed to a determination without exercising its powers under paragraph 6 of the second schedule to the Act in procuring the attendance of that witness so to enable the Applicant to lead her evidence. I make this last observation for the guidance of the Tribunal in case it is the intention to proceed otherwise. I wish to make it clear that it is not a matter that arises out of the grounds upon which leave to apply for Judicial Review was granted. On each of the issues raised in these proceedings I find against the Applicant and refuse the relief sought.