The Gazette 1977

MAY-JUNE

GAZETTE

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

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

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