The Gazette 1994

GAZETTE

OCTOBER 1994

Dermot Doran v. Commissioner of An

Garda

Síochána:

High

Court

(O'Hanlon J) 4 October 1993

Judicial Reviezv - Natural and constitu-

tional justice - Obligation to give reasons -

Decision of garda commissioner transfer-

ring officer - Knowledge of officer as to

circumstances viewed by superiors as neces-

sitating his transfer - Demand that reasons

should be given within specified time fol-

lowing the decision - Reasonableness of de-

cision to transfer

Facts

The applicant was a detective

garda officer who had been stationed in

a particular town for approximately 14

years. His wife was employed in a cleri-

cal position in the same garda station.

The marriage broke down and the ap-

plicant formed a relationship with a lo-

cal married woman who was the only

chemist in the town. The applicant's

superior officers were concerned by the

operational difficulties caused by his es-

tranged wife continuing to work in the

same station and his association with

someone who was subject to supervi-

sion by the gardai under statutory pro-

visions pertaining to drugs and poi-

sons. He was interviewed by his super-

intendent and later the chief superin-

tendent in relation to both matters. It

was suggested that the applicant

should end his relationship with the

chemist but he refused to do so. Soon

after these discussions the garda com-

missioner required that the applicant

should be transferred to a station in an-

other county. On 24 February 1992 the

Garda Review Board rejected the appli-

cant's appeal against this decision. Fol-

lowing receipt of the board's decision

the applicant's solicitor sent a letter

dated Friday 27 March 1992 indicating

that no reason for the proposed transfer

had been given and demanding that a

statement of the reasons should be sup-

plied by 5 p.m. on the following Mon-

day. No reply was received within this

time and an application for leave to ap-

ply for judicial review was made on 31

March with a view to seeking an order

certiorari

quashing the decision. A

letter of reply sent by the respondent on

the same day referred to the reasons in

general terms.

Held

by O'Hanlon J in refusing the re-

lief sought: (1) Given the discussions

which took place prior to the making of

the decision, the applicant had been

aware in general terms of the matters

which were causing concern to his su-

perior officers. Likewise, when the

transfer decision was appealed to the

Garda Review Board, only the break-

down of the applicant's marriage was

discussed and in his submissions he

had addressed this issue and his alleged

association with a local person. Thus

the applicant had known about the case

which he had to meet and had an oppor-

tunity to make submissions to the effect

that it was not a sufficient basis for a

decision to transfer him. (2) The affida-

vit of the assistant garda commissioner

contained a full statement as to the rea-

sons for the decision to transfer the ap-

plicant and the decision of the Garda

Review Board which affirmed it. Al-

though the fact that a chemist was sub-

ject to special garda supervision was not

specifically identified as the basis for

the concern regarding the applicant's

relationship prior to the filing and serv-

ice of the affidavit, this was known to

the applicant and it had been open to

him to argue in court that no reasonable

tribunal could have reached a decision

to transfer him based on the grounds

referred to in the affidavit. (3) The

course of procedure adopted by the ap-

plicant in the light of the failure of the

Garda Review Board to state its reasons

before the expiration of the deadline

specified by his solicitors had been ex-

cessively precipitate. Even though the

letter of reply sent on 31 March 1992 did

not state the reasons in detail, the re-

spondent had complied with whatever

obligation to give reasons had been im-

posed on him by law. (4) The decision

to transfer the applicant was not so un-

reasonable that no reasonable authority

could have come to it nor was it funda-

mentally at variance with reason and

common sense.

State (Keegan) v. Stardust

Victims' Compensation Tribunal

[1986] IR

642 and

O'Keeffe v. An Bord Pleanála

[1993] 1 IR 39 applied.

Reported at [1994] 1 ILRM 303

Director of Public Prosecutions (Garda

Ciaran Coughlan) v. Anthony Swan:

Supreme Court (Finlay CJ, O'Flaherty,

Egan, Blayney and Denham JJ) 11 May

1993

Criminal Law - Case stated - Road traffic -

Blood or urine specimen - Defendant opted

to give sample of urine - Failure to provide

specimen - Charge offailure to comply with

requirement of designated registered medi-

cal practitioner - Whether defendant should

be acquitted - Road Traffic Act 1961 (No.

24), s. 49 - Road Traffic (Amendment) Act

1978 (No. 19), s. 13

Facts

The defendant was charged with

failing to comply with the requirements

of a designated registered medical prac-

titioner in relation to the taking of a

specimen of urine contrary to s. 13(3)(b)

of the Road Traffic (Amendment) Act

1978 ('the 1978 Act'), following a re-

quirement under s. 13(l)(b) of the 1978

Act. After the defendant was arrested

and brought to the garda station, the

registered medical practitioner ('the

doctor') made the requirement speci-

fied in s. 13 of the 1978 Act in relation to

the taking of a specimen of blood or, at

the option of the defendant, the provi-

sion of a specimen of urine at 5.38 a.m.

The defendant opted to give a specimen

of urine but failed to do so after two

attempts. A Garda Coughlan told the

defendant of the consequences of re-

fusal or failure to provide a specimen

and he told the defendant that he could

change his mind and permit the doctor

to take a specimen of blood. The defen-

dant again opted to provide a specimen

of his urine at 5.55 a.m. but failed to so

provide and indicated that he was un-

able to do so, a failure that Garda

Coughlan could not say was a deliber-

ate one. The opinion of the Supreme

Court was requested as to whether on

those facts and in the absence of a re-

quirement made by a designated medi-

cal practitioner other than in the terms

referred to, the defendant should be ac-

quitted.

Held

by the Supreme Court (Blayney

and Egan JJ; Finlay CJ, O'Flaherty and

Denham JJ concurring) in finding that

the defendant should be acquitted: (1)

The obligation under s. 13 of the 1978

Act is to permit a designated medical

practitioner to take from the person a

specimen of his blood. The person is

given an

option

of providing a specimen

of urine. If the option is availed of, it

relieves the person from the obligation

to permit a specimen of his blood to be

taken from him. If the person finds that

he cannot provide a specimen of urine,

the obligation to permit the taking of a

specimen of blood revives and in such

circumstances, a refusal by him to per-

mit the taking of blood is the offence

with which he should be charged. (2) As

the defendant was charged and con-

victed of failing to comply with the re-

quirement of a designated medical

practitioner in relation to the taking of

urine and was not charged with any

other offence, he should be acquitted.

Per

Blayney J: Before the defendant

could be convicted of the offence with

which he had been charged, the prose-

cution had to prove that the doctor

made a requirement of him in relation

to the provision of a specimen of urine

and that the defendant failed to comply.

The facts set out in the case stated did

not establish this. As the doctor did not

make any requirement under s. 13(3)(b)

of the 1978 Act of the defendant in rela-

tion to the provision of his specimen of

urine, the defendant could not be guilty

of failing to comply with any such re-

quirement.

Reported at [1994] 1 ILRM 314