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Cite as: [2009] 3 IR 572, [2009] IESC 12

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Judgment Title: McNulty -v- DPP

Neutral Citation: [2009] IESC 12

Supreme Court Record Number: 162/06

High Court Record Number: 2004 424 JR

Date of Delivery: 18 February 2009

Court: Supreme Court

Composition of Court: Hardiman J., Geoghegan J., Fennelly J.

Judgment by: Hardiman J.

Status of Judgment: Approved


Judgments by	Result	Concurring
Hardiman J.	Appeal dismissed - affirm High Court Order	Geoghegan J., Fennelly J.

Outcome: Dismiss

THE SUPREME COURT

Hardiman J. 162/06
Geoghegan J.
Fennelly J.

FERGAL McNULTY

Applicant/Appellant

v.

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

and
HIS HONOUR JUDGE MICHAEL WHITE

Notice Party

JUDGMENT of Mr. Justice Hardiman delivered the 18th day of February, 2009.

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.

(b) A statement from one of the applicant’s friends denying, as has been alleged, that he had brought the drugs to the applicant’s dwelling.

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:

“Judicial review by way of a declaration that the applicant was entitled to be acquitted in the trial of the said indictment which took place between the 8th and 10th July, 2003.”

The applicant’s claim to that relief was disputed on a number of grounds of which the most significant are that it is the function of the trial judge in the Circuit Court, and not of the High Court in the exercise of his judicial review jurisdiction, to decide the admissibility of evidence. It was also contended that the matters of which the applicant complains are moot, since the trial before the notice party had concluded.

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 appellant accepts that in general judicial review relief is not appropriate for the purposes of seeking rulings from the High Court as to the admissibility of evidence in advance of criminal trials where the trial judge is capable of making all the appropriate determinations of law and fact.”

In my view this was a well advised concession. The fact that it was made relieves this court of the necessity to set out the authorities supporting the proposition just summarised: but there can be no doubt of its correctness in view, inter alia, of the decisions in Byrne v. Grey [1988] IR 31 and DPP v. Dunne [1994] 2 IR 537.

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:

“… the appellant’s case is that the respondent has taken unfair advantage of the fact that a jury disagreed following an erroneous ruling by the [presiding judge] in a criminal trial, by serving additional evidence to cure the defect in the proofs of the first trial. As a matter of law, the appellant should have been acquitted…”.

The applicant points out that if the matter proceeds to retrial the judge presiding at the retrial will have to determine the constitutionality of the search and the validity of the warrant. He points out that when that judge approaches this issue, there will already be in existence the ruling of His Honour Judge White on the same topic. There will also be the comments and findings of the same issue made by the trial judge, Murphy J, in this case. The applicant says that these rulings would be binding on the judge at the retrial. The findings to the same effect as Judge White, even if not considered to be binding, would clearly be influential.

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:

“The final consideration is whether this is a matter for the learned Circuit Court trial judge or for the High Court or a judicial review application.”

With great respect to the learned trial judge, this was not the final matter which arose for consideration but is logically the first matter to arise. If the issue is correctly one for resolution by the trial judge in the Circuit Court it is both unnecessary and inappropriate that the High Court Judge makes observations on the issue.

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:

“By giving rulings on the substantive arguments as to the validity of the warrant and the sufficiency of the evidence in the criminal trial, the learned trial judge has made it virtually impossible to challenge the warrant in any retrial. The respondent’s primary ground of opposition is therefore moot.”

The appellant goes on to refer to the well known case of C.C. v. Ireland [2006] 4 IR 1. He places his reliance on the following passage from the judgment of Geoghegan J.:

“Having regard, however, to the events which have occurred since leave was granted to institute the judicial review proceedings in each case, I am quite satisfied that it would be unjust and wrong in principle for this court not to make its own decision on the issue and simply leave the matter for the trial judge. The High Court judge had decided against each of the applicants on the issue relating to mistake of age. In these circumstances it is virtually inconceivable that the Circuit Court judge who would be conducting the trial would permit himself or herself to express a different view even if this Court were to categorise the views of the High Court judge as

obiter dicta

.”

The appellant also cited from the judgment of Fennelly J. to the following effect:

“The proper forum for the determination of legal matters arising in the course of trial is the trial court itself, subject to appeal to the Court of Criminal Appeal. The trial judge has however ruled on these matters. He has delivered a considered judgment on the interpretation of the relevant Sections. As Geoghegan J. says in his judgment, the Circuit Criminal Court may feel bound by the views of [the trial judge]. They may also be considered binding, rightly or wrongly, not only in this case but in other cases. It may be a long time before this Court has an opportunity to consider the substance of the matter. In the ordinary way, decisions of the High Court are open to appeal to this Court. In these exceptional circumstances I am satisfied that the Court must entertain the appeal.”

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:

“There is a presumption in law that a judge does what he is meant to do and I say that there is a presumption that by authorising the gardai on foot of this document to do what is set out in that warrant the judge had complied with statutory duty as a judge and had done all that he was meant to have done”.

Nor would the Director rely upon or seek to support the legal proposition enunciated by the learned trial judge in his ruling (at p.70) of the transcript of the 8th July, 2003):

“… In relation to the first submission, first of all there is a clear presumption in law that a document issued by a court is valid on its face. The document makes quite clear that it is a warrant issued based upon information on oath of Inspector McCarthy. It is not appropriate for me to go behind the document and to ascertain how that evidence on oath was procured but it seems on the face of it that the s.10(1) was clearly complied with in that the warrant clearly states that there was information on oath in relation to the particular signature of the judge. Again, I am obliged to accept it on its face and Inspector McCarthy has given evidence that it was Judge Dunne of the District Court who issued it and I am quite happy with that.”

Indeed, it appears that these statements are self-evidently wrong as they fly in the face of what was said by Keane C.J. in Simple Imports Ltd. v. Revenue Commissioners [2000] 2 IR 243;

“Search warrants, such as those issued in the present case, entitle police and other officers to enter into the dwellinghouse or other property of the citizen, to carry out searches and (in the present case) remove material which they find on the premises and in the course of so doing use such force as is necessary to gain admission and to carry out the search and seizures authorised by the warrant. These are powers which the police and other authorities must enjoy in defined circumstances for the protection of society, but since they authorise the forcible invasion of a person’s property, the Courts must always be concerned to ensure that the conditions imposed by the legislature before such powers can be validly exercised are strictly met.”

A little later, the former Chief Justice referred to an issue which may be of relevance in this case:

“What then is the consequence of a recital in the warrant which, if it correctly records the basis on which the warrant was issued, shows on its face that a statutory precondition for the exercise of the jurisdiction was not satisfied? To this difficult question, unfortunately, the authorities do not provide a wholly clear answer.”

At p. 255 of the report there is a further passage which may be of significance to the present case:

“I am satisfied that the submissions on behalf of the respondents that, in a case where the warrant itself states that it is being issued by the District Judge on a basis which is not justified by the statute creating the power, the invalidity of the warrant can be cured by evidence that there was in fact before the District Judge evidence which enabled him to issue the warrant within the terms of the statute is not well founded. The proposition seems to me contrary to principle and unsupported by authority. Given the necessarily draconian nature of the powers conferred by the statute a warrant cannot be relied upon as valid which carries on its face a statement that it has been issued on a basis which is not authorised by the statute. It follows that the warrants were invalid and must be quashed.”

The foregoing passages are set out at some length because they indicate the substantial and constitutionally important nature of the issues raised on behalf of the appellant. They will require to be resolved by the learned Circuit Judge presiding at the next trial, without the assistance of any presumption of validity, for there is none, and in the knowledge that these are substantial points and not mere technicalities.

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:

“Judicial review by way of a declaration that the applicant was entitled to be acquitted in the trial of the said indictment which took place between the 8th and the 10th July, 2003”.

The applicant’s entitlement to this relief arises, he says, from the proposition that the learned trial judge’s decision on the issues raised as to the admissibility of the evidence of the search of his premises was demonstrably wrong in law. That fact, in turn, makes it inequitable to try him again and inequitable for the Director of Public Prosecutions to take advantage of the second trial to mend his hand by the deployment of evidence which he did not consider necessary at the first trial. Moreover the necessity for evidence, for example that there was oral testimony before the learned District Judge who issued the warrant - only came to the Director’s attention because of the argument adduced by the defence at the first trial.

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.