O'Connell v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Keane
• Judgment Date: 30 July 1993
• Neutral Citation: 1994 WJSC-HC 1598
• Docket Number: (Judicial Review) No. 3/1993
• Court: High Court
• Date: 30 July 1993

1994 WJSC-HC 1598

THE HIGH COURT

(Judicial Review) No. 3/1993

O'CONNELL v. DPP

BETWEEN

CHRISTOPHER O'CONNELL

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS AND THE HONOURABLE MR.JUSTICE FRANCIS SPAIN, PRESIDENT OF THE CIRCUIT COURT

RESPONDENTS

Citations:

MISUSE OF DRUGS REGS 1979 SI 32/1979 REG 4(1)(c)

CRIMINAL PROCEDURE ACT 1967 S18

CRIMINAL PROCEDURE ACT 1967

CONSTITUTION ART 38

COSTELLO V AG 1984 IR 441

CUSTOMS CONSOLIDATION ACT 1876 S186

MISUSE OF DRUGS ACT 1984 S7(1)(a)(ii)

WILLIAMS V DPP 1991 3 AER 651

COURTS OF JUSTICE ACT 1936 S62

C, STATE V MIN FOR JUSTICE 1967 IR 106

O'SHEA V DPP 1988 IR 655

CUSTOMS ACT 1956 S2

DCR r88(2)

MISUSE OF DRUGS REGS 1988 SI 328/1988

Synopsis:

CONSTITUTION

Courts

Justice - Administration - Interference - Judge - Judicial domain - Invasion - Director of Public Prosecutions - Powers - Indictment - Counts - Inclusion - Limitation - District Court - Preliminary examination - Accused returned for trial on one charge - Other charges included in counts of indictment - Whether additional counts contained charges dismissed by District Court - (1993/3 JR - Keane J. - 30/7/93)- [1994] 3 IR 554

|O'Connell v. Director of Public Prosecutions|

CRIMINAL LAW

Indictment

Director - Powers - Counts - Inclusion - Limitation - District Court - Preliminary examination - Accused returned for trial on one charge - Other charges included in counts of indictment - Whether additional counts contained charges dismissed by District Court - Invasion of judicial domain - Criminal Procedure Act, 1967, ss. 5, 8, 18 - Constitution of Ireland, 1937, Articles 6, 34 - (1993/3 JR - Keane J. - 30/7/93)- [1994] 3 IR 554

|O'Connell v. Director of Public Prosecutions|

DIRECTOR OF PUBLIC PROSECUTIONS

Powers

Extent - Indictment - Counts - Inclusion - Limitation - District Court - Preliminary examination - Accused returned for trial on one charge - Other charges included in counts of indictment - Whether additional counts contained charges dismissed by District Court - Invasion of judicial domain - (1993/3 JR - Keane J. - 30/7/93)- [1994] 3 IR 554

|O'Connell v. Director of Public Prosecutions|

1 Judgment of Mr. Justice Keanedelivered the30th day of July 1993.

2 This case raises a net point, but one of some difficulty. The Applicant together with one John Ryan was charged before the District Court sitting at Bandon, County Cork, with three charges relating to the alleged importation into the State of a controlled drug within the meaning of the relevant legislation, i.e. cannabis resin. The first was a charge that they had the drug in question unlawfully in their possession at the Pier, Courtmacsharry, Co. Cork on the 23rd July 1991. The second was that they had unlawfully imported into the State the same drug on that day. The third was that they had conspired together on divers dates between the 2nd May 1991 and the 22nd July 1992 to import the same drug into the State.

3 All of these were indictable offences and thepreliminary examination required by the Criminal Procedure Act, 1967, was held before District Judge Brendan Wallace at Bandon District Court in May 1992. At that hearing, the Applicant was represented by Mr. Barry White SC and Mr. Luigi Rea. Mr. White submitted that since the second and third charges, as laid, were that the accused had unlawfully imported, and conspired to import, cannabis resin into the State

4 'in contravention of Regulation 4(1)(c) of the Misuse of Drugs Regulations 1979,'

5 and since those Regulations had been repealed, the Applicant was not charged with any offence known to the law. He also made certain submissions in relation to the evidence alleged to support the conspiracy charge with which it is not necessary to deal.

6 The State Solicitor for Cork County West Riding, Mr. Malachy Boohig, applied for an adjournment to consider the points raised by Mr. White. This having been granted, the matter came on for hearing again on July 23rd 1992, when Mr. Boohig conceded that the reference in the charges to the 1979 Regulations was incorrect and applied to the District Judge for an amendment of the charges by substituting the ' Misuse of Drugs Regulations 1988' for the ' Misuse of Drugs Regulations 1979'. Mr. White submitted that the District Judge had no jurisdiction to amend the charges under Rule 88(2) of the Rules of the District Court, since that did not permit the amendment of charges where the District Court was conducting a preliminary enquiry into an indictable offence.District Judge Wallace accepted the validity of this submission, but pointed out to Mr. White that, in his view, it would be open to the Director of Public Prosecutions to prefer additional counts in the indictment if he wished. He thereupon ordered the Applicant and his co-accused to be discharged in relation to the second and third charges and made an order returning them for trial in the Circuit Court on the first charge.

7 The first named Respondent (to whom I shall refer as 'the DPP') included in the indictment four charges in addition to the charge on which the Applicant and his co-accused had been returned for trial in purported exercise of his powers under s. 18 of the Criminal Procedure Act, 1967 (to which I shall refer as 'the 1967 Act'). They are as follows:

8 (1) possession of the drug in question for the purpose of supplying it to another;

9 (2) importing the drug in question into the State;

10 (3) conspiracy to import the drug in question into the State;

11 (4) importing the drug in question into the State for the purpose of selling it or supplying it to another.

12 The Applicant applied for, and was granted, an order transferring the trial of these offences to the Circuit Courtsitting in Dublin in which Court the case is now pending. On the 11th January, 1993, the Applicant was given leave by Geoghegan J. to apply by way of judicial review for an order of certiorari quashing the indictment in its entirety or in part and for an order of prohibition staying the second named Respondent from proceeding with the trial. Leave was given on the following grounds:

13 (1) The inclusion of the counts set out at (2), (3) and (4) above was ultra vires the powers of the DPP as the Applicant had been discharged at the preliminary examination in respect of those set out at (2) and (3) above;

14 (2) The inclusion of the count set out at (1) above was an attempt by the DPP to avoid a preliminary examination in the District Court in respect of the alleged offence and was, in the result, an abuse of process and a breach of fair procedures;

15 (3) The trial of the Applicant on the indictment would constitute a denial of the Applicant's right to have a Preliminary Examination conducted in the District Court in relation to the said offences as provided for by the Criminal Procedure Act, 1967 and...