High Court of Ireland Decisions

 


THE HIGH COURT

JUDICIAL REVIEW

Record No. 169 J.R. 2000.

Between:

BRIAN FEARON

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

(Note: [*#] denotes the start of a new page of the transcript)

Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 24th day of July, 2002.

This is an application for an injunction restraining the respondent from pursuing a prosecution against the applicant on Bill No. 173/99 at present pending before the Dublin Circuit Criminal Court.

The prosecution relates to offences of possession of cannabis on 30th September 1998 for the purpose of selling or otherwise supplying it to another contrary to s. 15 of the Misuse of Drugs Act, 1977 as amended and possession of cannabis contrary to s. 3 of the Misuse of Drugs Act, 1977 as amended.

The grounds relied upon by the applicant include the following matters:

The Book of Evidence grounding the prosecution against the applicant shows that the on the date of the alleged offences the applicant was a passenger in a vehicle driven by another person Richard Cullinan and the applicant and Mr. Cullinan were arrested and detained following the discovery of cannabis weighing 477.12 grammes in the vehicle. During the course of the investigation Richard Cullinan made a statement of admission that the applicant and he had bought the cannabis and were transporting same.

On the 3rd March 1999 the Chief State Solicitor on behalf of the respondent furnished the applicant's solicitors with certain documents by way of disclosure from which it is alleged it appears that during the course of the detention of Mr. Cullinan he made certain statements from which his guilt in respect of the said charges could clearly be inferred.

The Gardaí informed the applicant that they were in possession of other evidence implicating Mr. Cullinan in the offence of possession of cannabis for supply from searches carried out in the said vehicle and at Mr. Cullinan's place of residence;

There was sufficient evidence upon which to ground a prosecution in respect of Mr. Cullinan for the offence of possession of cannabis for supply;

The applicant's belief that Mr. Cullinan is a relative of a senior Garda officer or former officer has been communicated to the respondent and the respondent has failed to comment or provide information in respect of same.

Mr. Cullinan was not charged with the said offence of possession for supply

The respondent's solicitors have informed the applicant that the respondent directed in January 1999 that Mr. Cullinan be charged in the District Court with simple possession contrary to s. 3 of the Misuse of Drugs Act, 1977 as amended but that as a result of an oversight the relevant garda did not proceed to prosecute Mr. Cullinan until May 1999 by which time the prosecution was statute barred on the grounds that more than six months had elapsed from the date of the said offence;

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The said explanation for the respondent's failure to prosecute Mr. Cullinan in respect of the said offence under s. 3 of the said Act does not appear to be credible

Having regard to the provisions of the said Act and to all the circumstances it appears that the decision to decline to charge Mr. Cullinan with the said offence of possession for supply was motivated by mala fides or was made to achieve an improper purpose;

The applicant has been prejudiced by the said decision in particular since the said decision would undermine the applicant's defence to the said charge that Mr. Cullinan not the applicant was in possession of and responsible for the said drugs.

The said conduct by the respondent and the gardaí had tainted the prosecution with the appearance of impropriety to the extent that the applicant cannot be seen to receive a fair trial in circumstances where the relevant facts have been made available for the proper conduct of his defence. In particular the respondent's denial of having founmd incriminating evidence in respect of the said Mr. Cullinan does not appear to be reliable

That the applicant's constitutional rights to fair procedures and equal treatment have been breached;

Having regard to all the circumstances the continued prosecution in respect of the said charges amounts to an abuse on the part of the respondent as set forth at paragraphs 1 to 13 above.

The applicant was granted leave to institute these proceedings by order of this Court (Lavan J) of 4th May, 2000 and at the time he was granted a stay on the proceedings against him.

The application is grounded upon an affidavit of the applicant in which he deposes to the fact that the Book of Evidence sets out the following in relation to the allegations against him

(a) two gardaí noticed that he was a front seat passenger in a van which was being driven in the Templeogue area of Dublin city;

(b) the gardaí approached each front door of the van and the applicant appeared agitated;

(c) the gardaí searched the applicant and the driver of the vehicle Richard Cullinan with apparently negative results;

(d) a garda searched the front of the van and found two bars of cannabis weighing 477.12 grammes under the passenger seat of the van;

(e) Richard Cullinan and the applicant were arrested and detained under s. 2 of the Criminal Justice (Drug Trafficking) Act, 1996 for the investigation of the said offence of possession for supply;

(f) during the course of the applicant's detention under s. 2 aforesaid he at first denied knowledge of the cannabis and subsequently made a statement of admission that Richard Cullinan and he had bought the said cannabis and were transporting same;

The applicant states that he has given certain instructions to his solicitors:

(a) to fully contest the allegations, and

(b) regarding his treatment at the hands of the gardaí while he was detained as set out in the Book of Evidence and he says the instructions are true and he says and he believes and has been advised by counsel that if the substance of those instructions were accepted by a trial judge then the statement alleged to have been made by him while detained in custody would be ruled inadmissible in any trial;

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The applicant then refers to documents disclosed to him which he says show that Mr. Cullinan stated "not much" in reply to a garda question as to what he knew about the said cannabis; that he stated that he had nothing to do with the cannabis "except to give a bloke a lift" and that he made a statement in which he alleged or admitted that:-

(a) the said vehicle was his,

(b) the said cannabis was not his but was that of the applicant;

(c) he knew that the applicant sold drugs;

(d) the applicant had promised to pay him to take him to Tallaght;

(e) Mr. Cullinan waited for 15 minutes while the applicant remained in a public house in Tallaght and then drove him in the direction of Rathmines;

(f) when the van was stopped the applicant threw something under the seat;

(g) Mr. Cullinan did not know that the applicant intended to buy drugs and was not aware that drugs were in the van;

It is stated that Mr. Cullinan subsequently replied to questioning by gardaí and denied knowledge of the applicant's intention to collect drugs or of the presence of drugs in the van, stating that the applicant "must have put [the drugs] under the seat as we were driving back."

The applicant states that while he was detained as aforesaid gardaí showed him knives which he alleges they informed him had been found in the back of the said van and in Mr. Cullinan's home together with what appeared to him to be a butane burner which he alleges he was informed was found in the back of the van. He alleges that the blades of the alleged knives appeared to have been burned and that the gardaí indicated to him that they bore signs of having been used to cut blocks of cannabis. He says that the gardaí were in possession of such evidence as implicated Mr. Cullinan in the offence of possession of cannabis for supply.

The applicant refers to a letter written by his solicitors on the 18th November 1999 seeking disclosure as to

(a) the fate of the items seized from Mr. Cullinan's van and home, and

(b) the charges, if any, brought against Mr. Cullinan.

He refers to the fact that by letter of 7 January 2000 the solicitors for the respondent replied to this letter stating

(a) that the only items seized from the van was the cannabis and no search was carried out by gardaí of Mr. Cullinan's home, and

(b) the respondent directed in January 1999 that Mr. Cullinan be charged in the District Court with simple possession contrary to s. 3 of the Misuse of Drugs Act, 1977 as amended but that as a result of an oversight the relevant garda did not proceed to prosecute Mr. Cullinan until May 1999 by which time the prosecution was statute barred on the grounds that more than six months had elapsed from the date of the offence.

Based upon this correspondence the applicant asserts that the respondent appeared to determine that there was sufficient evidence to charge Mr. Cullinan with possession of the said cannabis and he says that it is not credible that a proper determination could be made that Mr. Cullinan was in possession of 477.12 grammes of cannabis for his immediate personal consumption and he refers to the book of evidence and a report of the Forensic Science Laboratory which he says indicates that the cannabis was sufficient to prepare 4,677 hand-rolled cigarettes containing the average weight of cannabis found in such cigarettes by that Laboratory.

He says that it is not credible that the relevant garda did not prosecute Mr. Cullinan because more than six months elapsed from the date of the commission of the said offence.

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He says that in the circumstances he believes that the denial of searching or finding other items in the van and home of Mr. Cullinan is not credible or is at least unreliable and that evidence in respect of such items if available at any trial could have supported the proposition that Mr. Cullinan was involved in the supply of drugs and that he was merely an innocent passenger in his vehicle.

He says further that he believes that Mr. Cullinan is a nephew of a senior garda officer or retired officer and that the conduct of the gardaí and the respondent has been motivated by a desire unfairly to avoid Mr. Cullinan being accused of responsibility in respect of the said drugs with the consequence that suspicion in respect of same is directed exclusively at him. He says that in this regard he has instructed his solicitors to make inquiry as to the identity of the said officer and the exact relationship between the officer and Mr. Cullinan. He says that arising from the aforesaid matters he has been prejudiced in the conduct of his defence. He says that it was clear from 15 November 1999 that he made it clear to his solicitors that he wanted all appropriate measures to be adopted in order to ensure that the prosecution would not proceed in such prejudicial circumstances.

The book of evidence contains a memorandum of an interview with Mr. Cullinan at Rathmines Garda Station on 1st October, 1998 after caution in which he was asked whereabouts in Tallaght did he go to collect the cannabis and to which he replied that he did not know exactly where it was, it was up near Jobstown and he was only giving "a bloke" a lift, that he denied knowing that this individual was going to Tallaght to collect cannabis resin and he denied noticing two bars of cannabis resin on the floor of the van and stated that this individual must have put them under the seats "as we were driving back" He continued "Look I'm working as a courier. Do you think I would risk something like this if I knew it was drugs. I've nothing else to say. I've made a statement for you and that's it. I'm not signing anything else." Further in a cautioned statement exhibited in the Book of Evidence it is recorded that Mr. Cullinan stated as follows:

"The drugs you found in my van were not mine. They were belonging to the bloke that was with me. I know his face from the flats. I know he sells drugs and he asked me for a lift up to Tallaght. He didn't say why he wanted to go up there. He said he would look after me with a few quid if I gave him a lift. I picked him up in Rathmines and drove to Tallaght. We went to the Jobstown Inn and he got out. He went away and came back about fifteen minutes. We were driving back to Rathmines when you stopped us. When we stopped he threw something under the seats. I now know it was cannabis but it had nothing to do with me. I know I've been in trouble before but I've sorted myself out. I've been working for the last five years and haven't been in trouble. If I knew that the bloke with me was going to buy drugs I wouldn't be so stupid as to carry him up in my own van."

The applicant's solicitor Michael E. Hanahoe says that inquiries made by his office have been unable to confirm the applicant's belief that Mr. Cullinan is the close relative of a senior garda officer or former officer. He refers to correspondence with the Chief State Solicitor's Office seeking information about the relationship and seeking all documents relating to the investigation and prosecution of the said offences as they related to Mr. Cullinan. He expresses the view that the respondent was in possession of sufficient evidence upon which to ground a prosecution in respect of Mr. Cullinan for the offence of possession of cannabis for supply.

A statement of grounds of opposition has been filed on behalf of the respondent denying that the applicant was informed by the Garda Síochána that they were in possession of evidence implicating Mr. Cullinan in the offence of possession or supply as a result of

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searches that they had carried out and further denying that Mr. Cullinan is a relative of a senior serving of former officer of An Garda Síochána. In essence the grounds of opposition traverse the applicant's grounds.

Detective Inspector John Jennings of an Garda Síochána attached to Terenure Garda Station says that in June 2000 he was instructed to investigate the reason why Mr. Cullinan had not been prosecuted under s. 3 of the Misuse of Drugs Acts 1977 to 1984 as the respondent had directed on January 8th 1999.

He refers to the fact that Mr. Cullinan was born on 1st January 1972 with an address at 46 Killeen Road, Ranelagh, Dublin and that he has been known to the Gardaí since the mid 1980's. He has two previous convictions for burglary and under s. 3 of the Misuse of Drugs Acts. At the date of swearing of this affidavit (29 November 2000) he was awaiting trial before Wexford District Court on a charge of burglary alleged to have occurred on March 20th, 2000.

He says that on July 12th 2000 he took a statement from Mrs. Kathleen Cullinan, mother of Richard Cullinan and that she states that no members of her family or any of her relations are members of An Garda Síochána and that she was not acquainted with any senior officers. She further stated that he husband and the members of his family were similarly unconnected with any such persons. He says that on 14th July, 2000 Detective Garda Jim Curran addressed to him a statement in the course of which he explained his involvement in the intended prosecution of Mr. Cullinan and the reason why he had not been charged in compliance with the respondent's directions. He says further that in the course of his investigation he spoke with a Mr. Purcell of the firm of Michael E. Hanahoe solicitors and that he Mr. Purcell requested that any queries that he might have be channelled through the Office of the Chief State Solicitor. He says that on or about August 8th 2000 he addressed a memorandum to the said office requesting that Mr. Purcell identify the senior or retired officer of An Garda Síochána who is alleged to have been related to Mr. Cullinan and he points out that he received no reply to his request and on 3rd October 2000 he contacted the Chief State Solicitor's Office and was informed by Mr. Fogarty, head of the Judicial Review section that the solicitor who had been dealing with the file had left the office in order to pursue a career in the private sector. He had, however, written to Michael E. Hanahoe Solicitors prior to leaving the Chief State Solicitor's Office and on 20th October 2000 the solicitors replied to the effect that enquiries were continuing and they repeated the request that it be confirmed that Mr. Cullinan is a relative of a senior Garda officer and asked that the relationship be specified.

Detective Inspector Jennings concludes that as a result of his investigation he is satisfied that Mr. Cullinan is not related to connected with any present or former senior officers of An Garda Síochána. He further says that as a result of his investigation he confirms that the averments made by the applicant in his affidavit in relation to the relationship alleged is entirely mistaken and he further denies that the conduct of An Garda Síochána or the respondent in respect of the applicant's prosecution has been motivated by any improper or ulterior motive, either as alleged by the applicant or at all.

The further evidence before this court shows that on the 8th January 1999 a direction was given on behalf of the respondent directed for the attention of the Chief State Solicitor's Office indicating that it had been concluded that available evidence made out a case against Mr. Cullinan that at the time he was assisting the applicant he knew the latter to be about to possess drugs and thereafter to have taken possession of them. The direction given at the time was that Mr. Cullinan should be prosecuted under s. 3 of Misuse of Drugs Act 1977 to 1984 and directed that the case should be prosecuted summarily. However due to an

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oversight when Detective Garda Jim Curran went to prosecute Mr. Cullinan in early May 1999 he discovered that the charges were statute barred as more than 6 months had elapsed since the date of the incident.

A further letter from Detective Garda Jim Curran indicates that the only items seized from the van owned by Mr. Cullinan were two bars of cannabis resin and that nothing was seized from Mr. Cullinan's house as no search was carried out by the Gardaí there.

An affidavit has been sworn by Detective Garda Jim Curran who investigated the offences alleged and arrested the applicant. He has sworn to receiving the direction from the respondent to charge Mr. Cullinan with the s. 3 offence and has confirmed that due to pressure of work he did not revisit the investigation file, having received the direction from the responent, until it was too late and the time limit for prosecuting Mr. Cullinan with the offence as directed had expired. He denies any representations having been made to him by anyone for or on behalf of Mr. Cullinan and he confirms the position outlined to the applicant's solicitors in relation to items found in the van and the fact that Mr. Cullinan's house was not searched and he indicates that the gardaí were not in possession of such evidence as implicated Mr. Cullinan in the offence of possession of cannabis for supply as alleged. He rejects the charge of improper motive made by the applicant.

Submissions

It is submitted by Mr. Anthony Sammon S.C. on behalf of the applicant that the circumstances of this case compare to those in the case of The People (Attorney General) v. John Nugent and Joseph Byrne 1 Frewen 294 where the circumstances were that both accused were convicted of receiving stolen monies contrary to s. 33 (1) of the Larceny Act, 1916. Monies stolen in a shop-breaking were found in Nugent's car. This car had been under observation from the gardaí but there was a period of five minutes after its arrival when the car was not under observation. Byrne was a passenger in the car. Both had denied knowledge of the stolen monies. It was held by the Court of Criminal Appeal that there was no evidence that Byrne was aware, or should have been aware, that there were stolen monies in the car. The only evidence connecting him with the car was his own evidence that he had been merely a passenger in the car. In his case it was held that a direction should have been given, and both conviction and sentence must be set aside. Nugent's defence was that the monies had been placed in the car without his knowledge. The court held that the defence was not fairly or adequately put to the jury. It was held that the appeal should be allowed and a fresh trial had. In the course of the appeal the Court observed that the car was Nugent's and normally a person is in control of his own car and its contents. If he was aware that the money was in his car then he was in control of it, and it could properly be said to be in his possession. The issues identified by the court were (a) whether he was aware that the money was in his car and (b) if so did he know it was stolen, and had he fraudulent intent.

Counsel further refers to the decision of Lynch J in the case of Murphy v. Director of Public Prosecutions [1989] ILRM 71 relating to the necessity on the part of the prosecution to preserve evidence material to guilt or innocence.

Counsel submitted that in regard to the applicant's proposed trial that a difficulty might arise in the absence of his co-accused. The jury might consider that the presence of two accused to be indicative of the garda opinion and in the absence of Mr.

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Cullinan a jury might be influenced that only the applicant stood trial at the time. Counsel conceded that this was a matter of perception. He submitted that the absence of Mr. Cullinan was something that the applicant might otherwise wish to have explored but would be at some risk in opening up the matter himself.

Counsel stands over the assertion that there was sufficient evidence to prosecute Mr. Cullinan on a charge contrary to s. 15 of the Misuse of Drugs Act, 1997 as amended on a charge of possession for the purpose of supply. He also seeks to stand over the assertion that the decision of the respondent not to charge him with that offence was motivated by mala fides or was made to achieve and improper purpose. Counsel sought to stand over each of the applicant's grounds of application.

Counsel refers to the decision of the Supreme Court in the case of The State (McCormack) v. Curran [1987] ILRM 225 and submits that having regard to same a sufficient case has been made out to give rise to the relief sought by the applicant. Counsel refers to that portion of the judgment of Finlay C.J. at page 237 of the report where he stated as follows:

"If, of course it can be demonstrated that [the Director of Public Prosecutions] reaches a decision mala fides or influenced by an improper motive or improper policy then his decision would be reviewable by a court. To that extent I reject the contention made on behalf of the respondent that his decisions were as a matter of public policy never reviewable by a court."

Counsel further refers to the decision of the Supreme Court in the case of H. v. Director of Public Prosecutions [1994] 2 I.R. 589; [1994]2 ILRM 285 in which Denham J stated, inter alia, at p. 606/7 of the report:

"The facts of the case do not exclude the reasonable possibility of a proper and valid decision of the Director of Public Prosecutions not to prosecute the persons named by the appellant. Consequently, the Director of Public Prosecutions cannot be called upon to explain his decision or to give reasons for it nor the sources of the information upon which it is based."

It is submitted by counsel that there is no possibility of a reasonable explanation for the failure to charge Mr. Cullinan on the facts of this case.

With regard to prosecuting Mr. Cullinan within the statutory time limit, it is submitted by counsel that the gardaí could have prosecuting Mr. Cullinan by way of the charge sheet procedure.

Counsel submits with regard to grounds 10 to 14 inclusive that justice must be seen to be done and submits that where the proceedings are commenced in violation of this principle that they are an abuse of the process of this Court.

On behalf of the respondent Mr. Collins submits that the applicant has failed to make out a case under any of the headings advanced and he further submits that the applicant has failed to adduce any evidence to demonstrate that there was any element of bad faith or the pursuit of an improper policy by or on the part of the respondent or of any member of An Garda Síochána.

Counsel relies upon the decision of the Supreme Court in the case of The State (McCormack) v. Curran [1987] ILRM 225 and in particular that passage of Finlay C.J. in his judgment at page 237 of the report where he stated, inter alia, as follows:
" In regard to the D.P.P. I reject also the submission that he has only got a discretion as to whether to prosecute or not to prosecute in any particular case related exclusively to the probative value of the evidence laid before him. Again I

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am satisfied that there are many other factors which may be appropriate and proper for him to take into consideration. I do not consider that it would be wise or helpful to seek to list them in any exclusive way. If, of course, it can be demonstrated that he reaches a decision mala fide or influenced by an improper motive or improper policy then his decision would be reviewable by a court. To that extent I reject the contention again made on behalf of this respondent that his decisions were not as a matter of public policy reviewable by a court."

Counsel refers to the fact that in the same case Walsh J indicated that in the absence of anything before the Court "from which it could be reasonably inferred that the opinion was either perverse or inspired by improper motives" relief would not be granted.

Counsel further relies upon the decision in H. v. Director of Public Prosecutions [1994] 2 I.R. 589; and the decision of Kelly J in Landers v. Garda Síochána Complaints Board [1997] 3 I.R.347 and to the decision of Morris P in O'Sullivan v. Wallace (Unreported, High Court, 19 April 1999). In the latter of these case Morris P refused to restrain the further prosecution of the applicant until another named person was also prosecuted in circumstances where the applicant was allegedly involved in an altercation with that individual and where only the applicant was prosecuted. Morris P held that in order to obtain such an order the applicant would have to demonstrate that the Director acted in bad faith or in the pursuit of an improper motive or policy. This the applicant failed to demonstrate.

It is further submitted that in any event the applicant has failed to show that he cannot obtain a fair trial in the circumstances.

With regard to the allegation of mala fides or improper motive or policy advanced in this case counsel refers to the principle that in the case of an allegation of fraud it is the duty of counsel not to put the plea unless there is clear and sufficient evidence to support the plea and in like vein counsel submits that in the instant case the plea of mala fides should not be raised in the absence of sufficient evidence. Counsel points to the difficulty of setting aside a grant of leave for judicial review as most recently illustrated in the decision of the Supreme Court in the case of Gordon v. Director of Public Prosecutions (Unreported, Supreme Court 7 June 2002) where the court indicated that the applicant for an order to set aside carries a heavier burden than the original applicant for leave.

Counsel submits that it is not sufficient for the applicant to make bald assertions of mala fides in the absence of evidence.

Counsel refers further to the decision in Adams v. Director of Public Prosecutions [2001] 2 ILRM 401 in which Kelly J referred to the fact that an applicant for judicial review is required to act with the utmost good faith and that this duty extends to counsel acting in the case.

With regard to the pleas raised by the applicant it is submitted by counsel, that like the situation involving a plea of fraud it is not sufficient to allow a plea of mala fides to be inferred from the facts pleaded.

Conclusions:

The applicant has sworn to a number of matters that have been contradicted in affidavits sworn on behalf of the respondent. In the absence of cross examination of deponents it is not possible for this Court to resolve conflicts of fact and in the circumstances

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where the onus of proof rests upon the applicant the Court cannot proceed to decide the case on the basis of the applicant's version of events where these are in issue.

While the applicant has queried the decision of the respondent not to prefer a charge against Mr. Cullinan contrary to s. 15 of the Misuse of Drugs Act, 1977 as amended, it is clear that in part this rested upon the issue of the sufficiency of evidence in the hands of the respondent at the time when the decision was made to direct that Mr. Cullinan be charged contrary to s. 3 of the same Act. The factual basis of the criticism has been strongly rebutted by the evidence put forward on behalf of the respondent and accordingly the foundation for the plea of mala fides or acting on the basis of an improper motive or policy does not survive. Nevertheless, in view of the judgment of Finlay C.J. in the case of The State (McCormack) v. Curran [1987] ILRM 225 and in particular that passage of his judgment at page 237 of the report where he stated, inter alia, as follows:

" In regard to the D.P.P. I reject also the submission that he has only got a discretion as to whether to prosecute or not to prosecute in any particular case related exclusively to the probative value of the evidence laid before him. Again I am satisfied that there are many other factors which may be appropriate and proper for him to take into consideration. I do not consider that it would be wise or helpful to seek to list them in any exclusive way. If, of course, it can be demonstrated that he reaches a decision mala fide or influenced by an improper motive or improper policy then his decision would be reviewable by a court."

I am satisfied that this statement of the law is such that the basis advanced by the applicant never amounted to sufficient basis for a plea of mala fides or improper motive or policy levelled against the respondent in this case. It is clear that the bona fides of the applicant himself have been put in issue in these proceedings in light of the assertions on his part in relation to material having been seized by the gardaí and the alleged relationship of Mr. Cullinan with a high ranking member of An Garda Síochána. In the circumstances counsel was invited to withdraw the plea of mala fides and improper motive against the Director of Public Prosecutions.

Whatever basis there may have been at the leave stage to advance the pleas in question, and I am not satisfied that there was a sufficient basis to support the plea, I am firmly of the view that to maintain this position at the stage of the hearing before this Court in the absence of cross examination of the witnesses on behalf of the respondent where the foundation advanced for the plea did not survive was improper and I am of the view that the duty of counsel in the circumstances was not to press the allegations of mala fides and acting with an improper motive should not have been pressed. It is clear that there is no evidential basis to sustain such a plea and the plea must be rejected.

While a difficulty exists in light of the law as propounded in case of The State (McCormack) v. Curran [1987] ILRM 225 and in particular that passage of Finlay C.J. in his judgment cited above, I am firmly of the view that the plea should not be even raised in judicial review proceedings unless there is a clear evidential basis for advancing same and that it is not sufficient to suggest that this must be inferred from the facts pleaded.

With regard to the evidence available to the respondent upon which a decision rested in relation to whether and with what offences Mr. Cullinan should be charged, I very much doubt that there existed sufficient evidence based on his admissions to warrant a prosecution under s. 15 of the Act and it certainly cannot be said that the decision in question, even if based solely on the evidence available to the prosecution, was one which must have been

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taken mala fide or to achieve an improper purpose. I am not disposed in the circumstances to hold that there was in fact sufficient evidence upon which to ground a prosecution in respect of Richard Cullinan for the offence of possession of cannabis for supply.

With regard to the assertion that the explanation given on behalf of the respondent for the failure to prosecute Mr. Cullinan "does not appear to be credible", I believe that it is indeed credible and the plea cannot survive. This Court is not called upon in the circumstances to adjudicate on a conflicting basis but it is clear that whether one chooses to believe the explanation or not it cannot be said that it does not appear to be credible. To suggest that it is not credible is to impugn the integrity of the gardaí and no cross examination of either Detective Garda Curran or Detective Inspector Jennings was requested in this case.

I further reject the ground advanced by the applicant that he has been prejudiced in his defence by reason of the fact that Mr. Cullinan has not been charged. Counsel sought to modify the plea to one of perception but I am satisfied that whether the applicant faced trial in the company of Mr. Cullinan or otherwise the same issue would have to be addressed at his trial and the same issue would arise before a jury namely whether there was a sufficiency of evidence to support the charge(s) beyond all reasonable doubt.

In conclusion I am satisfied that the applicant's contention that the prosecution of the case against him is tainted with impropriety is unsustainable and I am satisfied that the applicant cannot show that he has been deprived of the possibility of a fair trial or one in due course of law and I am satisfied that the applicant has failed to show that his constitutional rights to fair procedures and equal treatment have been breached. In all of the circumstances I am satisfied that the applicant's case must fail in relation to each and every ground advanced by him and in respect of which he was granted leave and I will accordingly refuse this application.