Bowes v Judge Devally

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 10 February 1995
• Neutral Citation: 1995 WJSC-HC 268
• Docket Number: [1994 No. 37 J.R.],No 37 J.R./1994
• Court: High Court
• Date: 10 February 1995

1995 WJSC-HC 268

THE HIGH COURT

No 37 J.R./1994

BOWES v. DEVALLY

JUDICIAL REVIEW

BETWEEN

DOLORES BOWES

APPLICANT

AND

HIS HONOUR JUDGE DEVALLY AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

1 Judgment of Mr. Justice Geoghegan delivered the 10th day of February 1995 .

2 This is an application by way of Judicial Review for an Order of Certiorari quashing an Order of the Circuit Court for the forfeiture of £890.00 upon affirming a District Court conviction for unlawful possession of drugs contrary to Section 3 of the Misuse of Drugs Act, 1977as substituted by Section 6 of the Misuse of Drugs Act, 1984.The application is made pursuant to leave granted in the High Court by Order of Mr. Justice Flood made the 21st February, 1994.

3 I should state at the outset that there is a technical problem about the actual form of the relief sought. The relief sought in the statement required to ground the application for Judicial Review reads as follows:-

"An Order of Certiorari by way of an application for Judicial Review of the Order of Forfeiture of £890.00 Irish punts, property of the Applicant, such Order made by the first named Respondent on the 1st November, 1993 under Section 30(1) Misuse of Drugs Act, 1977, affirming the Order of Kilmainham District Court, Dublin made on the 25th day of February, 1992."

4 It seems clear that the actual Order made by Judge Devally on the hearing of the District Court Appeal was simply a dismiss of the appeal and an Order affirming the Order of the District Court. There is therefore no express reference to a forfeiture in Judge Devally's Order. But the operative part of the District Court Order made by Judge Hussey read as follows:-

"And I did adjudge that the said Defendant be convicted of the said offence and pay for penalty for said offence the sum of £75.00 within one month, and in default of payment of the said sum within the said period that she be imprisoned in the Mountjoy Prison in said District for the period of fifteen days unless the said sum be sooner paid and did further order that money be forfeited."

5 If this Court was to quash Judge Devally's Order only in so far as it affirmed the forfeiture part of the District Court Order, that would be a clear severance and, in my view, not permissible (see The State (Kiernan) v District Justice de Burca [1963] I.R. 348). Counsel for the Director of Public Prosecutions very properly has not suggested that I should refuse the application on that ground alone. I am therefore approaching the case on the basis that if I come to the conclusion that the forfeiture complained of was made without jurisdiction, I should quash the entire Order of the Circuit Court and make such further consequential Orders as may be appropriate.

6 I turn now therefore to the substantive complaint being made in this application. The Applicant was convicted of being in possession of drugs simpliciter. The drugs found were a small quantity of cannabis resin and at the same time there was found to be in the possession of...