Judgment Title: McNulty -v- DPP
Composition of Court: Hardiman J., Geoghegan J., Fennelly J.
Judgment by: Hardiman J.
Status of Judgment: Approved
THE SUPREME COURT
Hardiman J. 162/06
THE DIRECTOR OF PUBLIC PROSECUTIONS
andNotice PartyJUDGMENT of Mr. Justice Hardiman delivered the 18th day of February, 2009.
HIS HONOUR JUDGE MICHAEL WHITE
This is an appeal from the judgment and order of the High Court (Murphy J.) of the 15th March, 2006 whereby he refused the applicant the relief sought.
The applicant was the defendant in criminal proceedings in which he was charged with an offence of possession of a controlled drug and possession of the said drug for supply, contrary to Sections 3 and 15 of the Misuse of Drugs Act, 1977. More particularly, the allegation was that on the 20th July, 2002, the applicant had in his possession the controlled drug MDMA and had it in his possession for the purpose of selling or otherwise supply it to another.
It appears that in July 2002 the applicant came to the attention of the gardaí in relation to a quite different and very serious offence. Since the applicant was subsequently acquitted by a unanimous verdict of that offence it is unnecessary to particularise it here. However in the course of enquiries into that separate offence the gardaí made certain observations in the applicant’s apartment as a result of which they applied to the District Court for a warrant to search the premises.
The applicant was tried on the drug charges in the Dublin Circuit Criminal Court before his Honour Judge White and a jury on the 8th, 9th and 10th of July, 2003. It was made clear on the applicant’s behalf that the prosecution were on full proof of every aspect and in particular that the legality of the search on foot of the warrant which had been obtained in the District Court was the subject of challenge. This challenge gave rise to a hearing in the absence of the jury, commonly called a voir dire. At the end of this procedure the learned trial judge ruled in favour of the admissibility of the evidence. The evidence continued to a conclusion but the jury were unable to reach a verdict and accordingly disagreed. The prosecution have indicated that they propose to proceed to a retrial.
After the conclusion of the trial before Judge White, the prosecutors served notices of additional evidence upon the applicant. It is these, specifically, that triggered the present proceedings. The additional evidence was designed to fill certain gaps in the evidence, according to the applicant. It included:
(a) A statement from the garda who had attended the District Court seeking the warrant to the effect that he had in fact given oral evidence grounding the issue of the warrant to the learned District Judge who issued it.
The nub of the applicant’s case is that, in all the circumstances, the respondent has taken unfair advantage of the fact that the jury disagreed following what he says was an erroneous ruling by His Honour Judge White - by serving the additional evidence to cure the defects in proof at the first trial.
There are two reasons why the applicant says that this constitutes an abuse of process: in the first place the appellant should have been acquitted if the learned Circuit Judge had decided the legal issues correctly. In the second place, if the applicant had been convicted the conviction “would have been quashed with no retrial”: it is inequitable that he is now in a worse position as a result of the fact that instead of convicting him the jury disagreed.
The only two of the points urged on the learned Circuit Judge which are relevant to the present applicant are, these. Firstly, it was contended that, having regard to the relevant statutory provisions, the valid issue of a warrant would have required the learned District Judge to hear oral evidence from the applicant for the warrant and that there was absolutely no evidence at the trial that he had done so. There was evidence that he had been presented by a member of the Garda Síochána with a written document described as a sworn information, but no evidence that any oral evidence was given. Secondly, it was said that the warrant as issued did not establish that the learned District Judge had been “satisfied” of the matters which the statute required him to be satisfied of, but only that “it appeared to him”, as the result of the information on oath of a named member of the Garda Síochána “that there are reasonable grounds for suspecting that evidence of, or relating to the commission of an offence… was to be found in the applicant’s premises.”
The present proceedings.
In these proceedings the applicant seeks judicial review by way of prohibition, or in the alternative by way of injunction, restraining the prosecutor from pursuing the prosecution against the applicant.
Secondly, he seeks:
It is furthermore denied that any error was made in the ruling of Judge White and it is claimed that the warrant was duly issued and is valid.
The correct locus for the determination of these issues.
In his oral and written submissions, the applicant made the following significant concession:
The applicant, however, says that this case, exceptionally, is one in which the admissibility of the evidence of the execution of the search warrant and what was found during that exercise must be determined in the High Court or in this Court on appeal, in the exercise of its judicial review jurisdiction. This is so because, the applicant says:
Thus, the applicant points out that the learned trial judge had held that a written sworn information was sufficient to ground the issuance of a search warrant, notwithstanding the explicit statutory requirement of “hearing evidence on oath” and, secondly that the warrant complied with the statute. The applicant submits that this finding was made in the mistaken belief that the warrant recited that the District Judge was “satisfied as to the grounds for issuing same.”
The High Court Judgment.
It is true that the High Court judgment in this case entered into the merits of the issue raised before the learned Circuit Judge at the abortive trial. Having done this, the learned trial judge proceeded at paragraph 11.5 of his judgment (which was its last paragraph) to say:
In the present case the applicant/appellant relies heavily on the fact that the High Court has entered into the merits of the issue saying:
In C.C, what was immediately in issue was whether, on its correct interpretation, s.1(2) of the Criminal Law Amendment Act, 1935, permitted a defendant charged with having intercourse with an underage girl to raise a defence of reasonable mistake as to age. Eventually, this Court held that the subsection did not permit of such a defence but, in a later hearing, that the subsection was for that reason unconstitutional. The question of the statute’s constitutionality could, of course, never have been resolved by the Circuit Criminal Court.
In the present case, however, the applicant seeks to quash on certiorari a decision of a Circuit Judge in a trial almost six years ago in the Circuit Criminal Court, which ended inconclusively with the disagreement of the jury. This is an entire moot. Quite apart from that, it could well be contended that an error in the learned trial judge’s ruling on the question of admissibility evidence (if any) was an error within jurisdiction. The fact of the matter is that his ruling is entirely moot because it had and has no continuing legal effect and is of no binding effect on another Circuit Judge or on any other court.
Similarly, the other substantive relief sought, prohibition or injunction to restrain the upcoming trial is likewise based on the proposition that the ruling of His Honour Judge White was wrong in law, a question which, as indicated above, is now entirely moot. This Court cannot and should not embark on a moot. This point clearly distinguishes the C.C. case where the question of the interpretation of the 1935 Act, and subsequently of its constitutionality, was at no stage moot.
It should also be noted that, in the course of the argument of this appeal Ms. Sunniva McDonagh S.C. for the State indicated that, on the hearing of any retrial the Director of Public Prosecutions would not seek to repeat, or to rely upon, the submission made on his behalf at the trial before Judge White as follows:
Indeed, in relation to the other point most prominently urged by the appellant, the question of the construction of s.10(1) of the Criminal Justice (Miscellaneous Provisions) Act, 1997, the important question is raised as to whether a member of An Garda Síochána seeking a warrant under that provision must present himself before the learned District Judge and answer any questions it occurs to the judge to put to him in order to satisfy himself of the need to exercise this draconian power, or whether on the contrary a written statement by a person who need not physically attend court at all, is sufficient. That is a significant issue, perhaps going to the root of our legal culture and the protection of the constitutional rights of the citizen.
The resolution of these issues is, of course, important to the admissibility of the additional evidence.
These are indeed substantial issues but ones quite capable of being resolved by the learned Circuit Judge and proper to be resolved by him or her since they arise in the course of a pending trial in the Circuit Court. In the resolution of these issues it would be quite wrong for the learned Circuit Judge to be influenced by what was said in a different context by His Honour Judge White or by the obiter statements of Mr. Justice Murphy and I have no doubt that these will be, as they must be, entirely disregarded.
As set out above, the second relief sought by the applicant is a very novel one:
Once the defendant has been returned for trial, the Circuit Court, (to which he was returned) remains seized in the matter until the trial ends in either conviction or acquittal or the moving party, the Director, enters a nolle prosequi.
The trial process may involve two or more hearings for a number of reasons. The jury may disagree, as happened in this case and happens not infrequently. Or the first jury may be discharged for one reason or another. In either event the prosecution may bring the case on again for trial before a separate jury unless the defendant can show that such a step would be oppressive.
Where there is a second trial, neither side is bound to approach the case in the same way that they approached the first trial. New witnesses may be called, or witnesses called on the first occasion may be omitted. Almost every trial, especially if it proceeds to the point where the defendant is given in charge to the jury, will develop in a way which could not be wholly predicted before it started. Each side will have learnt a good deal more about the other side’s case. A witness who looked very impressive on paper may appear to some disadvantage in giving oral evidence, cross-examination may put an entirely different complexion on certain evidence, and legal argument, where there is any, may reveal weaknesses in the case of either side in the way they address certain topics, which had not previously occurred. It is perfectly legitimate for either the prosecution or the defence to adapt to these discoveries by looking again at how it will present its own case. Where there is a second trial, almost inevitably, each side will know more about the other side’s case than it did when the first trial started.
I do not consider that it is in any way oppressive of the other side for a party or his advocates to deploy more or different evidence on a second trial. It would be a wholly artificial exercise to say that because something had not occurred to the prosecution (or defence) for the first trial it could not benefit from the knowledge and information that that trial had given to them. It would be a wholly unrealistic form of gamesmanship to hold that because the prosecution had not thought it necessary to prove a particular fact of the first trial, they were stuck with that decision at a retrial.
This is not to say that there could not be circumstances where it would be oppressive of a party to permit the other to change front in a particular way as between two trials. But that is a matter for the judge presiding at the second trial and not for judicial review.
I would also say that the circumstances of this case are quite different to those of C.C., and the associated case, cited above. There, what was at issue was a matter of substantive law - the interpretation of a statutory provision and, later, its constitutionality. What was and is at issue here is the admissibility of certain evidence, a procedural issue to be decided on the evidence and submissions advanced to the learned trial judge. The construction of the statute is a matter of substantive law having but one correct resolution: the issue of the admissibility of evidence either because of defects in the warrant or alleged oppression in the deployment of new evidence, is a matter with no single correct answer but which must be decided in accordance with the evidence and submissions deployed in the individual case. I do not, accordingly, consider that that question should be decided by this Court on judicial review.
I would dismiss the appeal.