THE SUPREME COURT
O’Flaherty J,
Keane J, 
Barron J,
(177/98)

BETWEEN:
MICHAEL HYNES
Plaintiff/Appellant
v

THE COMMISSIONER OF AN GARDA SIOCHANA
THE MINISTER FOR JUSTICE
IRELAND AND THE ATTORNEY GENERAL
Defendants/Respondents
[Judgments by O'Flaherty and Keane JJ; Barron J. agrees]

Judgment (ex-tempore) delivered on the 13th day of January, 1999, by O’Flaherty J.

This is an appeal brought by Michael Hynes from the judgment of the High Court (McCracken J.) delivered on 22nd May, 1998, dismissing a claim whereby he sought to challenge the decision of a tribunal of inquiry that affirmed the decision made to have him dismissed from the Garda Siochana from 17th May, 1990.

It should be said straight away that we are dealing with a very old case and are concerned with the Garda Siochana (Discipline) Regulations 1971, which were superseded by the Garda Siochana (Discipline) Regulations 1989.

As recounted in the judgment of the learned High Court judge, on the 12th October, 1988, the appellant was served with a discipline form pursuant to

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the 1971 Regulations alleging eleven separate breaches of discipline against him. It is fair to say that some of these were comparatively minor. The judge confined himself, as we do, to two of the breaches and these were set forth in the form as charges (5) and (6). They were as follows:-

“(5) Conduct prejudicial to discipline or likely to bring discredit on the force, that is to say that on the 14th January, 1987, you forced your way into the home of Mr. and Mrs. Augustine Broughan, 521 Griffith Avenue Extension, Finglas, Dublin 11 and terrorised Mrs. Broughan and her two daughters, Margaret and Lisa, by use of the words ‘I want the bastard, I want me money, when I get my hands on him I’ll kill him’.

(6) Conduct prejudicial to discipline or likely to bring discredit on the force, that is to say that on the 22nd January, 1987, you assaulted Augustine Broughan, 60 years, of 521 Griffith Avenue Extension, Finglas, Dublin 11 outside the Bank of Ireland at Finglas Shopping Centre, Finglas, Dublin 11.”

The first thing to be noted about those charges is that they relate to different dates, two different venues and two different forms of activity alleged against the person arraigned.

A tribunal of inquiry was set up under the relevant regulations and an inquiry was held on the 11th and 12th May, 1989. The was that there was a

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decision made by the Tribunal of Inquiry that Mr. Hynes was in breach of discipline in regard to both (5) and (6) and the decision of the Commissioner, which was dated 3rd July, 1989, was that Mr. Hynes should be dismissed from the garda Siochána with effect from 24th July, 1989, in respect of breach (5) and then he wrote: “with breach (6) taken into consideration”. What he meant by that was that breach (6) was taken into account. The fact that something is taken into consideration can have another connotation and will be made clear later in this judgment.

In any event, the appellant appealed that finding and he sought a declaration that the tribunal had erred in law in deciding that he was guilty of the breach of the disciplines as alleged in charges (5) and (6). He also claimed that the penalty imposed was excessive.

On 7th December, 1987, it is the fact that Mr. Hynes had been prosecuted in the District Court with assault occasioning actual bodily harm and this related to the matter referred to in charge (6) before the disciplinary tribunal. It had been established in the decision of this court in McGrath .v. Commissioner of an Garda Siochana [1990] ILRM 17 that that cannot be done and indeed that is copperfastened now by the 1989 Regulations. They expressly provide that if a member is acquitted of a charge in the court he

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cannot be charged with an equivalent type of charge embodied as a breach of discipline before the disciplinary tribunal.

Mr. Hynes’s approach was to take a simple appeal to the Appeal Board. When they heard the submissions by Mr. Moylan - which in essence was to do the best he could for his client by way of legal argument - their decision was to affirm the Commissioner’s decision to dismiss Mr. Hynes from the Garda Siochana in respect of breach (5) with breaches (2) and (3) (these are minor matter of no relevance) taken into consideration.

There was a critical finding that they revoked the decision to find him in breach of (6). So Mr. Hynes having come before the appeal board said in effect: “Look I should not have been convicted on (6) because it should never have been before the tribunal, I should now be acquitted of it”, and that is precisely what they did.

The case advanced on behalf of the appellant at trial and here is basically a simple one. It is that by reason of having a charge before the tribunal which should not have been there that that in some way polluted or vitiated the whole proceedings so as to call in question the validity of charge (5). That would be like saying that if there were two charges on a indictment before a judge and jury and one should not have been there for lack of jurisdiction that that would vitiate the whole proceedings.

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Mr. Mackey, S.C., has relied on a decision of the then President of the High Court, Mr. Justice Davitt, in The State (Kelleher) .v. Galway County Council [1958] IR 142. The point of that case was that where a county medical officer had to assess a person for possible entitlement to consideration under regulations made under the Health Act, 1953, he could not take into consideration, or be affected in his decision, by matters which were something that he should not have taken into account. Davitt P. confirmed what was well settled law even then that where an administrative tribunal has a duty to hear and determine a certain question according to law takes into consideration and allows the determination to be affected by matters which it has no right to take into account, it can be held to have declined a jurisdiction and may be required on mandamus to hear and determine the issue according to law.

There is no question of anything being taken into consideration here. The Tribunal of Inquiry had two distinct charges before them. They essentially found him guilty on the more serious charge on any view, going into the dwellinghouse of the people and abusing them. They said they were taking the other into consideration. By that they meant that they were taking it into account: they would not inflict a separate penalty on it.

Then Mr. Hynes took the course of going to the Appeal Board and he made his case there. His point was accepted that this charge should not have

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been there and his appeal should have been allowed. And that is what happened.

The judge found that count (5) did not in any way deal with the assault but dealt with an entirely different happening at a different time. It was not open to the plaintiff, the judge held, that having chosen this course of action and made his arguments before the court to come into the High Court six years later and argue that the entire proceedings were annulled.

With great regard to the judge, I could not agree more with every word he said. That is as clear as could be, I think. It would bring the whole system of judicial review of administrative action into serious question if we were to allow points like this to prevail. I think the judge was perfectly right in dismissing the case.

I would dismiss the appeal.

THE SUPREME COURT
177/98
O’Flaherty, J.
Keane, J.
Barron, J.
HYNES

V

COMMISSIONER GARDA SIOCHANA

Ex Tempore Judgment delivered the 13th day of January 1999, by Keane, J.

I agree. It appears from the record of the decision of the Commissioner that what he did was this in relation to the finding of the Board of Enquiry. The Board of Enquiry having found Garda Hynes to be in breach of discipline as described in Breaches No. 5 and 6, the Commissioner went on to dismiss Mr. Hynes in respect of Breach No. 5 with Breach No. 6, taken into consideration. It was from that decision that the appeal was taken to the Appeal Board. The Appeal Board, quite properly having regard to the decision of this court, to which the president has already referred, in effect set aside the finding in respect of Breach No. 6 and affirmed the decision of the Commissioner to dismiss him in respect of Breach No. 5, with two comparatively minor matters taken into consideration. That seems, for the reasons which the president has

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set out and which I do not have to labour again, to have been a perfectly valid procedure on the part of the Appeal Board and I would also dismiss the appeal.