115 / 264
GAZETTE
MAY-JUNE
High Court, and the plaintiff
obtained a temporary injunction
restraining the holding of this Court
of Inquiry. The application for an
Interlocutory Injunction was
adjourned from time to time until the
hearing of the action. In this action,
the plaintiff asked for:-
(1) a Declaration that the Garda
Disciplinary Regulations, 1971,
are repugnant to the Constitution
and void,
(2) An order restraining the
Commissioner from purporting
to dismiss the plaintiff, and from
setting up a Special Inquiry.
(3) An Order restraining the named
Garda officers from holding the
Special Inquiry.
On ground (1), the plaintiffs
application fails. The Commissioner
rightly or wrongly held the opinion
that the disclosure of facts relating to
the alleged breach would be liable to
affect the security of the State. As
regards dismissal, Article 34 of the
Disciplinary Regulations states that
the Commissioner has power to do
this, subject to the sanction of the
Minister, and having given the
objector an opportunity to state his
reason. This power of dismissal is not
absolute, unqualified and arbitrary. It
is only a power exercisable in specific
instances, and by acting fairly and
judiciously, in accordance with the
Constitution. Article 34 of the
Disciplinary Regulations does not
conflict with the Constitution. The
notice of 9 March, in which the
Commissioner purported to dismiss
the plaintiff from the force subject tp
the consent of the Minister is
not
in
fact a notice of dismissal.
This notice of 9 March, did not
give the plaintiff any facts or findings
to justify dismissal, and thus did not
give him an opportunity of replying.
In the notice, purporting to set up
the Special Inquiry, it is clear that the
Inquiry was not to be limited to the
alleged breach of discipline, but with
"other things" of which the plaintiff
was given no notice. Thus the plaintiff
had no adequate notice and
knowledge of the nature of the charge
made against him.
Before the Special Inquiry
proceeds, the plaintiff should be
given :-
(1) Full notice of the grounds upon
which the Commissioner considers
him unfit to be a Garda, (2) Full
notice of the essential facts and
findings to justify this, (3) Full
particulars of the alleged breach of
discipline.
The Interlocutory Injunction will
be refused, but if the plaintiff should
be dismissed as a result of the report
of the Special Inquiry, he can
institute fresh proceedings.
Hogan v. Minister for Justice and
others — Hamilton J. — unreported —
8 September, 1976.
PRACTICE
High Court rules against second
prosecution.
The President of the High Court,
Mr. Justice Finlay, held that a Dublin
fitter, Gerard O'Callaghan, of
Clogher Road, Crumlin, could not be
prosecuted a second time by the
Director of Public Prosecutions
in relation to three charges
on which he had already been
returned for trial and on which a
nolle prosequi
had been entered by
the State.
The President said he was satisfied
in this particular case that the
Director had not got a right to
institute a fresh prosecution.
He made absolute a conditional
order of prohibition to O'Callaghan,
a prisoner on remand, restraining
District Justice O hUadhaigh from
continuing the further hearing of
three charges against O'Callaghan.
In a long judgment, the President
said O'Callaghan was arrested and
charged with four offences arising
out of an alleged armed robbery of a
post office in Walkinstown, Co.
Dublin, on January 17th, 1976.
The charges were armed robbery,
receiving, possession of firearmswith
intent and unlawful possession of
firearms. On February 16th he was
charged with four further offences.
On March 18th he was returned
for trial by the District Court to the
Circuit Court on each of the eight
charges. O'Callagan's trial was later
transferred to the Central Criminal
Court. The indictment contained a
total of 12 counts.
On July 21st, a jury was sworn to
try O'Callagan but during legal
argument it was indicated by Mr.
Justice Gannon that in his view the
only count on which he had any
jurisdiction to try O'Callaghan was
the single count of receiving. Counsel
on behalf of the D.P.P. , after an
adjournment and having received the
appropriate instructions, purported to
enter a
nolle prosequi
against
O'Callaghan on all counts arising on
any of the three indictments.
Rearrested
The President said that counsel for
the Directorhad then indicated that it
was the intention of the Director to
have O'Callaghan re-arrested on his
release and re-charged with all the
original charges.
Mr. Justice Gannon discharged
O'Callaghan and his four accused,
granting them their one-day costs
against the State.
O'Callaghan, continued the
President, was discharged and re-
arrested and was then charged on
three separate charge sheets which
were identical to those in respect of
which he had originally been charged.
It was against the further hearing
of those charges that the President
granted the order of prohibition.
The President said that, having
regard to the facts of the case, he was
satisfied it was not necessary, in
order to determine the rights of
O'Callaghan, for him to decide as a
general matter whether it would
under no circumstances be possible
for the D.P.P. having entered a valid
nolle prosequi
under Section 12 of
the Criminal Justice Administration
Act, to institute a fresh prosecution
arising out of the same alleged
offence.
The President, concluding, said if
the D.P.P., having entered a
nolle
prosequi,
was entitled without
restriction from any court to institute
an entirely fresh prosecution in
respect of the same alleged offence,
there would appear to be nothing to
prevent him (D.P.P.), in a case where,
on a discretionary matter arising
from a decision of mixed fact and law
which fell to be determined by the
trial judge rather than by the jury, if
it appeared that the prosecution's
contention was likely to fail, to enter
a nolle prosequi then.
"Viewed in this light the basic
unfairness of such a contention
appears to me to become clear", said
the President.
The President made a similar order
in respect of one of O'Callaghan's co-
accused, Douglas Byrne.
He granted both of them their
costs and allowed a stay of execution
in the event of an appeal to the
Supreme Court.
The State (O'Callaghan) v. District
Justice OliUadhaigh - Finlay P. -
unreported —4 February, 1977.
11