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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> D.P.P. v. O'Leary [1998] IEHC 95 (17th June, 1998)
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Cite as: [1998] IEHC 95
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D.P.P. v. O'Leary [1998] IEHC 95 (17th June, 1998)
1. On
Thursday 1st May, 1997 Barr J. gave leave to bring an application for judicial
review in respect of the said order of the Respondent on the grounds set forth
at (e) in the Statement of grounds of application for Judicial Review dated 1st
May, 1997. I quote:-
2. Counsel
for the Director of Public Prosecutions, the Applicant, moved the application
on the 20th May, 1998. The learned Respondent was not represented. The Notice
Party was represented by Senior and Junior Counsel who had been successful in
having the charges against their client dismissed in the District Court appeal
which came before Waterford Circuit Court on 13th and 14th November, 1996. It
is quite clear that the date given of 4th November, 1996 for the hearing of the
appeal is erroneous and arose by way of clerical error. The Notice Party, his
Solicitor and Counsel were all present when the spoken order was made on 14th
November, 1996 and no prejudice to the Notice Party arises by reason of this
incorrect date; indeed, the extra ten days might well have assisted the
argument made by his Counsel with regard to the lack of promptness on the part
of the Director of Public Prosecutions in bringing this application for
Judicial Review in the nature of Certiorari. Accordingly, I intend to deal
with the order of the Circuit Court as having been made at Waterford on 14th
November, 1996 when the learned Respondent allowed the appeal and discharged
the order of the District Court.
3. The
application was opened to me by Counsel for the Director of Public Prosecutions
on the basis that the Notice Party had been charged and convicted and sentenced
in the District Court on two drug offences and also for assault and obstruction
of a policeman. There was initially some confusion as to what had transpired
in the District Court. There was evidence that three charge sheets were
proffered at Waterford District Court on 30th July, 1996. The first, being
Charge Sheet No. 55 of 1996, included a charge
4. Secondly,
Charge Sheet 150/96 was first proffered at Waterford District Court on 30th
May, 1996. The first charge on this Charge Sheet 150 of 1996 reads:-
5. Charges
(2), (3) and (4) on that charge sheet were all struck out in the District Court
on 30th July, 1996.
6. Charge
Sheet 151/96 was also been proffered at Waterford District Court on 30th May,
1996. Charge (2) on that charge sheet reads:-
7. The
Notice Party pleaded guilty to various charges and ended up by being convicted
on two charges; firstly on Charge No. (1) on Charge Sheet 150 of 1996 of being
in possession of a controlled drug for the purpose of selling or supplying and
was ordered to be imprisoned for a period of seven months. Secondly, he was
convicted on Charge No. (2) on Charge Sheet 151 of 1996 for unlawful assault on
D/Sergeant Butler and a consecutive sentence of seven months was imposed on
this charge.
8.
A notice of appeal against severity of sentence dated 6th August, 1996 was
received in the District Court Office in Waterford on 7th August, 1996. For
ease of reference, I annex to this judgment a copy of the three charge sheets
and a copy of the order made on 30th July, 1996 by Judge William Harnett in the
District Court together with a copy of the notice of appeal dated 6th August
1996, and a copy of the order made by the learned Respondent on 14th November,
1996 at Waterford Circuit Court.
9. On
13th November, 1996 the appeal proceeded before Waterford Circuit Court in
respect of both conviction and sentence. The State Solicitor called Detective
Sergeant Butler who gave evidence as to his obtaining of a search warrant, and
then attending at the Notice Party's premises with Gardaí John Jennings
and Paul Moore at 8.50 p.m. on 23rd February, 1996 to execute the search
warrant at Flat No. 1, 133 Barrack Street, Waterford which was occupied by
Nicholas Bowe. The Detective described the resistance by the Notice Party and
his striking the Detective Sergeant in the face and the attempted escape out of
the bedroom window by the Notice Party. An account of the violent struggle and
his kicking of the Detective Sergeant is set out in the affidavit. On his
arrest at 8.55 p.m. on 23rd February, 1996, the Notice Party apparently
threatened the Detective Sergeant.
10. At
this point, I should add that the State Solicitor and the Detective Sergeant
both gave evidence that they came to the Circuit Court under the impression
that the appeal was against severity of sentence only. However, the case
proceeded on the basis of an appeal against both conviction and sentence. It
is common case that the Notice Party, who had pleaded guilty in the District
Court, was entitled to change his plea and that the case proceeded in the
Circuit Court on the basis of a full appeal. The State Solicitor called
Detective Sergeant Butler and the other two Gardaí. At the close of the
prosecution case, Counsel for the Notice Party sought a dismiss on several
grounds which were not accepted by the learned Respondent. Nevertheless, the
case was adjourned overnight and on 14th November, 1996 the learned Respondent
apparently accepted a submission that there was a need for and a lack of
evidence with regard to the making of an extension order in respect of the
Notice Party's detention in the Garda Station under section 4 of the Criminal
Justice Act, 1984.
11. The
sequence of events was that the Notice Party had been arrested at 8.55 p.m. on
23rd February, 1996 on suspicion of a breach of section 15 of the Misuse of
Drugs Acts, 1977 to 1984. He was taken in custody to Waterford Garda Station.
At 4.28 a.m. on 24th February, 1996, the Notice Party was charged with
possession of cannabis resin contrary to section 3 and section 27 (as amended
by section 6 of the Misuse of Drugs Act, 1984) of the Misuse of Drugs Act, 1977
as set out on Waterford Charge Sheet No. 55/1996. This would have been within
the second six hour period of detention. The State Solicitor submitted that,
as neither verbal admissions nor any other relevant matter happened during the
Notice Party's detention, the proof of the making of the extension order was
not a necessary ingredient of the prosecution case. He submitted that the
State was not relying on anything said or obtained during the entire period of
the custody of the Respondent. He also contended that the only charge
proffered at the end of the period of detention at 4.28 a.m. on 24th February,
1996 was the charge of possession of a controlled drug contrary to section 3
and section 27 (as amended by section 6 of the Misuse of Drugs Act, 1984) of
the Misuse of Drugs Act, 1977 and that none of the other charges which had been
proffered on 30th May, 1996 should in any way have been affected. He also
submitted that there was no finding by the learned Circuit Court Judge that the
detention was unlawful nor had there been any inquiry as to the lawfulness of
the detention.
12. Counsel
for the Director of Public Prosecutions argued that, even if there was a cloud
over this charge under section 3 (which she did not accept), the Notice Party
was charged under section 3 and released on bail to appear before the District
Court five days later. The purpose of the charge was to bring the Defendant
before the District Court. When he did appear the District Court had seisin
and remanded him to 28th March, 1996. Accordingly, the purpose of that charge
was spent and he was now in the seisin of the District Court which had remanded
him. In fact, he failed to appear and a bench warrant issued. On 30th May,
1996 the accused appeared and the further charges were proffered. He was
remanded to 11th July, 1996 and then subsequently to 30th July, 1996 when he
pleaded guilty and was convicted on the two charges as set out above and duly
sentenced to two consecutive periods of seven months each. I have set out the
sequence of events in full as derived not only from the affidavits filed,
namely the affidavit of Detective Sergeant Terry Butler sworn on 1st May, 1997
and filed on 1st May, 1997 but also from the testimony of the Detective
Sergeant and of the State Solicitor given in this Court. I accept the
Detective Sergeant's evidence, particularly paragraphs 20 and 21 of his
affidavit, which read:-
14. I
have quoted this statement of opposition in full because it raises a
preliminary issue with regard to delay and while the Applicant's case concerns
a single issue that the order of the learned Respondent in dismissing the two
charges under appeal was made without or in excess or in abuse of jurisdiction,
the statement of opposition raises a considerable number of other points which
must be dealt with since the making of an order of certiorari is discretionary.
The opposition was grounded on the affidavit of the Notice Party sworn on 12th
September, 1997. I have also read the supplemental affidavit of Detective
Sergeant Terry Butler sworn on 1st December, 1997 and filed on 3rd December,
1997. In paragraph 2 of that affidavit, he accepted that the hearing of the
appeal took place on 13th and 14th November, 1996 and not on 4th November, 1996
as deposed to in his first affidavit. I have had the benefit of hearing the
Detective Sergeant's evidence under cross-examination and I accept his evidence
where there is a conflict with that of the Notice Party. In particular I
accept his evidence to the effect that substances found by the Gardaí on
the Notice Party's premises were controlled drugs and that this testimony was
given in the Circuit Court by the Detective Sergeant and that a forensic
certificate was handed in by him to the learned Respondent and that this
certificate was not challenged by Counsel for the Notice Party. I should add
that I have also read the supplementary affidavit of the Notice Party's
Solicitor and the affidavit of the State Solicitor for County Waterford which
was sworn on 28th November, 1997 and filed on 28th November, 1997. I have had
the benefit of hearing Mr. Maher's evidence under cross-examination and I
accept his evidence in its entirety and in particular that the learned
Respondent allowed the appeal on the grounds that the State had not given any
evidence relating to the extension of the Applicant's detention. I accept that
the only basis on which the learned Respondent dismissed the prosecution case
on the appeal was on the basis of a lack of evidence being adduced relating to
the extension of the Notice Party's detention. I accept that the forensic
certificate was handed in to Court and that Mr. Maher subsequently, when this
point was raised, checked and found it on the Circuit Court file. I am not
concerned at this stage in respect of points with regard to the search warrant,
the arrest or the criticism of the Chief State Solicitor for failing to produce
the Circuit Court order to the Notice Party's Solicitor. The Circuit Court
order is a matter of public record and either party could seek it. A certified
copy of the Circuit Court order has been produced to this Court.
15. Counsel
for the Notice Party contends that three instances of delay in this application
should militate against the Court exercising its discretion in favour of the
Applicant. First, he cites Order 84, Rule 21:-
16. Counsel
concedes that the application for leave to seek judicial review was made before
Barr J. on 1st May, 1997 being five and a half months after 14th November, 1996
and, hence
17. That
case has several features which distinguish it from the present case. First,
it concerned a juvenile and Barr J. stressed that he had in mind that in a case
involving a juvenile there should be no avoidable delay on the part of the
State. Secondly, that was a mandamus case and involved a clear-cut issue
whereas the present case concerns certiorari of the learned Circuit Court Judge
and presented certain conflicts and complexities both as to the factual and
legal situation.
19. These
principles can be applied to the present case. No suggestion has been made
that any particular prejudice has been suffered by the Notice Party by reason
of there having been a time lag of five and a half months between the making of
the Circuit Court order and the application on 1st May, 1997. I have no doubt
that the Applicant gets over this preliminary hurdle since the application was
brought within the six month time limit and was brought reasonably promptly in
view of the complexity of the matter, the need to seek instructions from the
Applicant and the need to set out the matter carefully on affidavit.
20. Secondly,
Counsel for the Notice Party submits that there was an inordinate delay after
the making of the order by Barr J. on 1st May, 1997 before the proceedings were
served on his client. The evidence before me is that on 14th May, 1996 a
notice of motion was filed seeking an extension of time for the service. On
16th June, 1997, Kelly J. made an order allowing an extension of time. On 30th
June, 1997, a second extension order extending the time to 7th July, 1997 for
service was made. On 9th July, 1997, O'Sullivan J. made an order further
extending the time until 14th July, 1997. Unhappily, this referred to a
different case of
Director
of Public Prosecutions -v- Judge Brophy
which had been inadvertently served on the Notice Party around 10th July, 1997.
On realisation of this error a further extension order was sought and on 24th
July, 1997 McGuinness J. extended the time further. Eventually, on 15th
August, 1997, an extension order was granted by Flood J. for service on the
Notice Party's Solicitor and the papers were received by him on 21st August,
1997. However, the reality of this situation is that the Notice Party received
the papers concerning the certiorari on 11th July, 1997, according to paragraph
9 of his own affidavit, although it is correct that in addition he was served
with an incorrect extension order. This was manifestly an error and of little
consequence. Having heard Detective Sergeant Butler's evidence elicited in
cross-examination, I accept his evidence about the very considerable
difficulties encountered in trying to serve documents on the Notice Party. I
accept his evidence that he objected to the Notice Party's application for bail
on 6th August, 1996 on the grounds that he had failed to appear before and that
he had no permanent address and rarely resided at his parents' address at No. 3
Dangan, Kilmacow, Co. Kilkenny. The Detective Sergeant reeled off six
addresses at which the Notice Party had resided. He also went through the
inordinate length of time which he and his colleagues had had to spend trying
to serve documents on the Notice Party, much of which supported his contention
that the Notice Party did not in reality reside at his parents' address in
Kilmacow. In my view, extensions of time were properly given in respect of the
service of the preliminary order and the appropriate documents therewith and no
prejudice arises to the Notice Party on account of the time which elapsed
particularly as he had received the relevant papers on 11th July, 1997 albeit
with extraneous documents.
21. As
for the third point concerning the time lag in the production of the Circuit
Court order, I have already stated that this is a matter of public record. In
any event, the Notice Party was present and heard the order of the learned
Respondent and a certified copy is now before this Court.
22. A
further point was raised by Counsel for the Notice Party with regard to the
propriety of the Notice Party's arrest. No doubt this was with the intention
of affecting the Court's discretion. However, I accept the Detective
Sergeant's evidence, again elicited under cross-examination, that he did inform
the Notice Party of the reason for his arrest, namely on suspicion of a breach
of section 15 of the Misuse of Drugs Act, 1977 and that as normal he explained
this in plain English as to why he was arresting him. Matters such as the
propriety of the search warrant, the arrest, and the production of the forensic
certificate may well be matters to be raised in a trial but, as aired in the
application before me and on my assessment of the evidence given, would not
affect my exercise of discretion in favour of the Applicant.
23. I
accept the evidence of the State Solicitor elicited under cross-examination
that the learned Respondent allowed the appeal because evidence had not been
adduced with regard to the extension of the period of detention. This was
despite the fact that he, the State Solicitor, had made submissions to the
Circuit Court that it was unnecessary to have adduced such evidence as it was
not a necessary proof as it was not in issue and as no inculpatory evidence was
obtained during the detention; and also that, in any event, the charges, other
than the charge under section 3, had been proffered at a later date. The
evidence of the Detective Sergeant also elicited under cross-examination
supports this recollection that the only ground given for the dismissal of the
two charges under appeal was the failure to adduce evidence with regard to the
lawful extension of the detention of the Notice Party in Waterford Garda
Station. Thus the nub of this application is whether the learned Respondent
acted without jurisdiction in dismissing the two charges for this reason.
24. There
must be sympathy for the submission that, when the Notice Party walked free
from the Courthouse on 14th November, 1996, he was entitled to have some
certainty that this was the end of the matter. However, the writ of certiorari
is of ancient vintage. In
The
State (Abenglen Properties) -v- Corporation of Dublin
[1984] I.R. 381 at page 392, O'Higgins C.J. traced its development:-
25. When
a Court makes a decision which is founded on an error of law it is deemed to
have acted beyond its jurisdiction and an order made on foot of such a
determination is liable to be quashed. In
The
State (Holland) -v- Kennedy
[1977] I.R. 193 at p. 201, Henchy J. said:-
26. Counsel
for the Applicant submits that the State did not seek to rely on any evidence
arising from the extended or any period of detention and accordingly there was
no need to prove the lawfulness of the Notice Party's detention. She relied on
the decision of
Joseph
Cullen Applicant and District Judge Fitzpatrick and The Director of Public
Prosecutions Respondents
which judgment was delivered on 26th February, 1997 by Keane J. in the Supreme
Court with Blayney and Murphy JJ. concurring. The applicant appeared before
the District Court on 19th June, 1992 on charges of having unlawfully in his
possession a controlled drug, i.e. cannabis resin, and being in possession of
the same drug for the purpose of selling or otherwise supplying it to another
person in contravention of the Misuse of Drugs Act, 1977 to 1984 and the
regulations made thereunder. A hearing eventually took place before the
respondent District Judge on 23rd February, 1994. Evidence was given by
prosecution witnesses to the effect that the applicant had been seen engaging
in transactions at Coolock involving the handing over of foil wrapped items to
people in exchange for money and that these items, having been subsequently
recovered, on analysis proved to be cannabis resin. Evidence apparently was
also given that the applicant was arrested on the same day and brought to
Coolock Garda Station where he was detained in purported exercise of the powers
conferred by section 4 of the Criminal Justice Act, 1984. No evidence,
however, was given by Sergeant Camillus Fitzpatrick, although a statement by
him had been furnished from which it appeared that he was the Garda officer who
had informed the applicant at Coolock Garda Station that he was being detained
for a period of six hours purportedly under the provisions of section 4 of the
1984 Act. Sergeant Fitzpatrick was not, however, present at the hearing on
23rd February, 1994. The prosecution having closed their case without calling
Sergeant Fitzpatrick, the defending Solicitor objected on the ground that she
was not being allowed to cross-examine him. Submissions were made by her and
by the Solicitor for the Director of Public Prosecutions, in the course of
which she applied for an adjournment for the purpose of securing Sergeant
Fitzpatrick's attendance in Court. The District Judge refused that application
and proceeded to convict the applicant and imposed a sentence of twelve months
imprisonment. On 28th February, 1994, the applicant was given leave to apply
by way of an application for judicial review for an order of certiorari and,
when the matter came on for hearing, the High Court held that the conviction
and sentence should be quashed and a re-trial ordered. From that judgment and
order the second named respondent appealed to the Supreme Court. Having
reviewed the submissions of Counsel, Keane J. concluded:-
27. Applying
this principle to the present case, since the Notice Party pleaded guilty in
the District Court, no question arose with regard to the lawfulness of his
arrest and detention there. On the appeal the Notice Party changed his plea,
as he was entitled to do on the authority of
Attorney
General -v- Fitzgerald
[1973] I.R. 195. In
Fitzgerald's
case, the Supreme Court in answer to questions posed in a Case Stated held that
an appeal to the Circuit Court in a criminal case, where the conviction and
sentence are in issue, should be conducted as a re-hearing of the proceedings
in the District Court. It is clear from the judgment of Fitzgerald C.J. that,
under the provisions of section 18 of the Courts of Justice Act, 1928, an
accused person who has admitted the offence charged in the District Court and
who has served a notice of appeal stating that his appeal is against conviction
and sentence is entitled to a re-hearing of the case and that the Circuit Court
Judge has jurisdiction to re-hear the whole case. While in the present case
the notice of appeal was against severity of sentence only, nevertheless this
notice was treated at the Circuit Court as being an appeal against both
conviction and sentence and no point was or is taken by the State as to the
entitlement to a full re-hearing.
28. In
the present case, there is no evidential basis for the submission that the
Circuit Court Judge was affected in his ruling by evidence obtained during the
period of detention; there was nothing suggestive of any incriminating evidence
arising from the detention. It is clear from the evidence of the State
Solicitor and Detective Sergeant Butler that no challenge was made to the
legality of the detention. It is conceded that if this challenge had been made
then a different situation would have prevailed and the Applicant would have
had to adduce evidence with regard to the extension of the period of detention
and the legality thereof. On the contrary, the challenge in the Circuit Court
was confined to the point that no evidence had been offered with regard to the
making of the extension order. Applying the principle enunciated by the
Supreme Court in the
Cullen
case, in the circumstances evidence in respect of the extension of the period
of detention was irrelevant to the issue with which the Circuit Court was
concerned, ie. the guilt or innocence of the Notice Party. Having listened to
the evidence given by the State Solicitor and the Detective Sergeant under
cross-examination and, having considered the contents of the affidavits, I have
formed the clear impression that there was no evidential basis whatsoever for
the submission that the Circuit Court Judge made his ruling on account of
evidential matter obtained during the detention period. It is quite clear that
no inculpatory evidence was obtained during the period of detention. The
relevant evidence was the material found to have been in the possession of the
Plaintiff at the time of the search of his flat, being matter which was either
on his person or in his flat.
29. Accordingly
I conclude that the order of the Circuit Court was made without or in excess of
jurisdiction. I am satisfied that the grounds of opposition are not sufficient
to prevent the order sought. On the application of Counsel for the Director of
Public Prosecutions I will make an order of certiorari quashing the order made
by the learned Respondent on 14th November, 1996 whereby he dismissed the two
charges in respect of which convictions the Notice Party had appealed and I
will make an order pursuant to Order 84, Rule 26(4) of the Rules of the
Superior Courts remitting the matter to the Judge of the South Eastern Circuit.
I will hear Counsel as to the precise terms of the order to be made.
© 1998 Irish High Court