Andjelkovic v Governor of Cloverhill Prison
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hedigan, |
| Judgment Date | 04 March 2009 |
| Neutral Citation | [2009] IEHC 109 |
| Court | High Court |
| Date | 04 March 2009 |
[2009] IEHC 109
THE HIGH COURT
BETWEEN:
AND
MISUSE OF DRUGS ACT 1977 S15A
CONSTITUTION ART 40.4.2
MISUSE OF DRUGS ACT 1977 S23
CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S2
MISUSE OF DRUGS ACT 1977 S3
MISUSE OF DRUGS ACT 1977 S15
CRIMINAL PROCEDURE ACT 1967 S4B(3)
CRIMINAL JUSTICE ACT 1999 S9
CRIMINAL PROCEDURE ACT 1967 S4B(1)
DUNNE v GOVERNOR OF CLOVERHILL PRISON UNREP PEART 15.1.2008 2008 IEHC 21
DUNNE v GOVERNOR OF CLOVERHILL PRISON UNREP EDWARDS 25.1.2008 2008 IEHC 16
ZAHARIA v GOVERNOR OF CLOVERHILL PRISON UNREP HIGH 24.11.2008 (EX TEMPORE)
CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S29(2)
CRIMINAL LAW
Practice and procedure
District Court - Book of evidence - Preferment of new charges related to same incident - Statutory period for service of Book on original charges expired - Application to extend time refused by District Judge - District Judge refused to require application to extend time in respect of new charge - Applicant remanded in continuing custody on new charge - Habeas corpus - Whether preference of new charge mala fides - Whether proper to prefer charge without forensic science certificate - Dunne v Governor of Cloverhill Prison [2008] IEHC 21 (Unrep, Peart J, 15/01/2008) and Dunne v Governor of Cloverhill Prison [2008] IEHC 16 (Unrep, Edwards J, 21/01/2008) considered - Misuse of Drugs Act 1977 (No 12), ss 3, 15, 15A and 23 - Criminal Procedure Act 1967 (No 12) s 4B - Legality of detention upheld (2009/233SS - Hedigan J - 4/3/2009) [2009] IEHC 109
Andjelkovic v Governor of Cloverhill Prison
Facts: The applicant, who was in custody on remand in relation to a charge contrary to s. 15A of the Misuse of Drugs Act 1977 as amended sought to challenge the lawfulness of that detention, under the procedure laid down in Article 40.4.2 of the Constitution. The applicant was initially charged on 14/12/08 with offences pursuant to ss 3 and 15 of the Misuse of Drugs Act, 1977. However, those charges were subsequently struck out by the District Court Judge following delays in the service of the book of evidence. It had been put to the applicant at the outset that the approximate value of the drugs involved was €150,000. The applicant was remanded from time to time and on 10/02/2009 a charge pursuant to s. 15A of the 1977 Act as amended was preferred. The investigating Garda gave evidence on that date that the certificate of analysis in relation to the drugs was received on 03/02/09 and that he could not have been sure of the value of the drugs until it was scientifically certified. The applicant was remanded in custody for one week on the s.15A charge. The applicant asserted that the charge under s.15A was in reality the same as the charge under s. 15 for the purposes of the present proceedings. On that basis the applicant submitted that the s.15A charge could have been preferred at any stage and ought not to be allowed to inhibit the effect of the time limit for service of the book of evidence provided for by s. 4B(1) of the 1967 Act, as inserted by s. 9 of the Criminal Justice Act 1999. It was submitted that to allow the prosecution extend time by preferring a fresh but nearly identical charge would be to allow the subversion of the statutory obligations contained within s. 4B(1) of the Act of 1967. The applicant relied on the decisions in Dunne v. Governor of Cloverhill Prison (High Court, unreported, 15 and 25 January 2008) and Zaharia v. Governor of Cloverhill Prison (High Court, unreported, 24 November 2008).
Held by Hedigan J. in refusing the application: That there did not appear to be any rule of law which prohibited the preferment of new charges against a person already accused of other offences, provided same was done in good faith and no serious injustice arose. In the present case some justification was advanced by the Director of Public Prosecutions for the preferment of the charge under S. 15A of the 1977 Act. Specifically evidence was adduced that the relevant forensic science report was only received on 3 February 2009 and further that the market value of the drugs involved could not have been known prior to the receipt of that report. The intentions of the prosecution in bringing a charge under s. 15A were entirely bona fide and there was no intention to subvert the provisions of s. 4B(1) of the Act of 1967.
Dunne v. Governor of Cloverhill Prison (High Court, unreported, 15 and 25 January 2008) and Zaharia v. Governor of Cloverhill Prison (High Court, unreported, 24 November 2008) distinguished and not applied in this case.
Reporter: L.O’S.
The applicant is a Dutch national who is currently remanded in custody before Dublin District Court having been charged with an offence contrary to section 15A of the Misuse of Drugs Act 1977 ('the 1977 Act').
The respondent is the official responsible for the applicant's detention for the purposes of the present proceedings.
The applicant seeks to challenge the lawfulness of his detention, under the procedure laid down in Article 40.4.2° of the Constitution. He does so on the basis of what he alleges to be unlawful procedures adopted by the District Court, sitting at Cloverhill Courthouse, on the 10 th of February 2009.
On the 13 th of December 2008, the applicant was sitting in his vehicle at Airside Retail Park, Swords in the County of Dublin when he was approached by a number of members of An Garda Síochána. A search of the vehicle was then carriedour pursuant to section 23 of the 1977 Act. The applicant was arrested on suspicion of having committed an offence under the 1977 Act and was conveyed to Ballymun Garda Station where he was detained for questioning pursuant to section 2 of the Criminal Justice (Drug Trafficking) Act 1996. During his detention at the station, it was put to the applicant that two kilograms of cocaine had been concealed within his vehicle, the value of which was approximately €150,000. On the 14 th of December 2008, the applicant was released from custody and charged with offences contrary to sections 3 and 15 of the 1977 Act, which cover simple possession of a controlled drug and possession for the purposes of sale or supply respectively.
On the 15 th of December 2008, the applicant was brought before Dublin District Court to answer the charges. The prosecuting Garda gave evidence of arrest, charge and caution in the usual manner and also indicated to District Judge Dunne that the estimated value of the drugs seized was €150,000. The applicant was then remanded in custody to Cloverhill Prison to appear before the District Court sitting at Cloverhill Courthouse on the 19 th of December 2008.
The applicant appeared before the District Court at Cloverhill Courthouse on the 19 th of December 2008, the 6 th of January 2009 and the 3 rd of February 2009 while directions from the Director of Public Prosecutions were awaited. On each occasion, the applicant consented to being continuously remanded in custody as he was of limited means and not in a position to nominate a place of residence within the State for the purposes of a bail application. On the application of the Chief Prosecution Solicitor, an extension of time was also granted by District Judge Coughlan for the service of the book of evidence under section 4B(3) of the Criminal Procedure Act 1967 (as inserted...
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