O'Connell v DPP

• Jurisdiction: Ireland
• Judge: Mrs. Justice Denham,BLAYNEY J.
• Judgment Date: 24 March 1994
• Neutral Citation: 1994 WJSC-SC 1609
• Court: Supreme Court
• Docket Number: [1993 No. 3 J.R.; S.C. Nos. 346 and 348 of 1993]
• Date: 24 March 1994

O'CONNELL v. DPP

JUDICIAL REVIEW APPEAL

BETWEEN/

CHRISTOPHER O'CONNELL

Applicant/Appellant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS AND HIS HONOURJUDGE SPAIN

Respondents/Appellant

1994 WJSC-SC 1609

346/93

THE SUPREME COURT

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 - Additional counts did not contain charges dismissed by District Court - (346/93 - Supreme Court - 24/3/94) - [1994] 3 IR 563

- [1994] 2 ILRM 21

|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 - Additional counts did not contain charges dismissed by District Court - No invasion of judicial domain - Criminal Procedure Act, 1967, ss. 5, 8, 18 - (346/93 - Supreme Court - 24/3/94) - [1994] 3 IR 563 - [1994] 2 ILRM 21

|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 - Additional counts did not contain charges dismissed by District Court - No invasion of judicial domain - (346/93 - Supreme Court - 24/3/94) - [1994] 3 IR 563 - [1994] 2 ILRM 21

|O'Connell v. Director of Public Prosecutions|

1 JUDGMENT delivered on the 24th day of March 1994by BLAYNEY J. [FINLAY CONC]

2 This is an appeal by both the applicant and the first-named respondent against the order of Keane J. in the High Court - the respondent's appeal being against so much of the order as declared that the addition by the Director of Public Prosecutions of two counts to an indictment preferred against the applicant was ultra vires the powers of the Director under s. 18 of the CriminalProcedure Act, 1967,and the applicant's appeal being against so much of the order as refused to declare that the addition by the Director of Public Prosecutions of count No. 5 in the same indictment was ultra vires.

3 The background facts to the appeals are set out very fully in the judgment about to be delivered by Mrs. Justice Denham so I propose to refer only to such of them as are necessary to make comprehensible the conclusion I have reached in the case.

4 The two counts which were added into the indictment by the Director of Public Prosecutions were as follows:-

"Count No. 3 STATEMENT OF OFFENCE

5 Importation of controlled drug contrary to section 21(2) of the Misuse of Drugs Act, 1977 in contravention of Article 4(1)(c) of the Misuse of Drugs Regulations 1988, made under section 5 of the Misuse of Drugs Act, 1977.

PARTICULARS OF OFFENCE

6 Christopher O'Connell and John Ryan on the 23rd day of July, 1991 at the Pier, Courtmacsherry, in the County of Cork, unlawfully imported into the State the controlled drug cannabis resin.

Count No. 4. STATEMENT OF OFFENCE

7 Conspiracy to import into the State the controlled drug cannabis resin in contravention of Article 4(1)(c) of the Misuse of Drugs Regulations 1988 made under section 5 of the Misuse of Drugs Act, 1977 and contrary to section 21(2) of the Misuse of Drugs Act, 1977.

PARTICULARS OF OFFENCE

8 Christopher O'Connell and John Ryan on a date unknown prior to the 2nd day of May, 1991 (within the State) and on divers dates between the 2nd May 1991 and the 24th July 1991 (outside the State) conspired together to import into the State the controlled drug cannabis resin."

9 The ground on which Keane J. held that the introduction of these two counts was ultra vires theDirector of Public Prosecutions was that it rendered nugatory the order of the district judge discharging the applicant on two of the charges with which he had been charged on the preliminary examination before the district judge. The charges in question had been set out as follows in the statement of charges in the District Court:-

10 2 "2. That you are said accused did on the 23rd day of July 1991 at the Pier, Courtmacsherry, County Cork, in the District Court area of Clonakilty, District No. 18, unlawfully import into the Republic of Ireland a controlled drug, to wit, cannabis resin, in contravention of Regulation 4(1)(c) of the Misuse of Drugs Regulations 1979 contrary to section 21(2) and section 27 (as amended by section 6 of the Misuse of Drugs Act, 1984) of the Misuse of Drugs Act, 1977.

11 3. You, Christopher O'Connell and John Ryan, on a date unknown prior to the 2nd May 1991, within the State, and on divers dates between the 2nd May 1991 and the 24th July 1991, outside the jurisdiction of the State, conspired together to commit a crime, namely,to import into the State the drug cannabis resin, in contravention of Regulation 4(1)(c) of the Misuse of Drugs Regulations 1979, section 21(2) and section 27 (as amended by section 6 of the Misuse of Drugs Act, 1984) of the Misuse of Drugs Act, 1977 contrary to common law".

12 At the date on which these offences were alleged to have been committed the Misuse of Drugs Regulations 1979 had been repealed and had been replaced by the Misuse of Drugs Regulations 1988. Since the relevant regulations had been repealed, Mr. White, acting on behalf of the applicant, submitted to the district judge that the applicant had not been charged with any offences known to the law. The district judge then considered amending the charges but in the face of Mr. White's objections that he had no jurisdiction to do this, decided against this course and discharged the applicant on both of these charges.

13 Keane J. held that the case was indistinguishable from Costello v. Attorney General 1984 I.R. p. 346 and on that ground held that it was ultra vires the Director of Public Prosecutions to introduce the two additional counts in the indictment. He held that the introduction of the two counts rendered nugatory the decision of the district judge.

14 I am unable to take the same view. It seems to me that Costello v. The Attorney General is distinguishable. In that case the plaintiff was charged before the District Court with two indictable offences relating to large sums of money. At the conclusion of the preliminary examination of the offences the district judge ordered the plaintiff to be discharged as to the offences and he was accordingly discharged. Subsequently the Director of Public Prosecutions, relying on the powers given to him by s. 62 subs. 1 of the Courts of Justice Act, 1936, purported to direct the plaintiff to stand trial on the same charges in respect of which he had been discharged bythe district judge. It was held that the decision of the district judge was a judicial determination and that the intended effect of the direction of the Director of Public Prosecutions under s. 62 of the Act of 1936 was to render that determination nugatory and without force and to frustrate the order of the District Court. It was held accordingly that s. 62 of the Courts of Justice Act, 1936 was invalid having regard to the provisions of the Constitution.

15 In my opinion there is a clear distinction between the present case and the Costello case. In the Costello case there was no doubt as to the validity of the charges which were the subject of the preliminary examination. So, in discharging the accused, the district judge was deciding that the evidence was insufficient for him to make an order sending forward the accused for trial. There was a clear decision on the merits to this effect.

16 Accordingly, when the Director of Public Prosecutionsdirected that the accused be sent forward for trial on the same two charges, he was overruling a decision on the merits made by the districtjudge.

17 The position in the present case is very different. It was submitted by Mr. White on behalf of the applicant that he could not be returned for trial on charges 2 and 3 because, by reason of the 1979 Regulations having been revoked, the charges did not charge any offences which were known to the law. The district judge, taking the view that he had no power to amend the charges, acceded to this submission. It was accordingly on this basis that the applicant was discharged, which accordingly meant that he had been discharged because the charges against him did not in law constitute offences. So the discharge was on the basis that the charges were invalid. In the Costello case, on the other hand, the charges against the accused had been perfectly valid charges so the only conclusion that could be drawn from the accused being discharged wasthat the district judge had come to the conclusion that there was insufficient evidence to send him forward for trial. No such inference could be drawn on the facts of the present case.

18 In submitting that the Director of Public Prosecutions had no right to include counts 3 and 4 in the indictment, Mr. White relied on the argument that these counts were in substance the same as charges 2 and 3 in the District Court. He says that the facts on which the State proposes to rely to prove the two counts are precisely the same facts as those on which they were relying to prove the charges. This is undoubtedly so but in my opinion it does not advance Mr. White's argument. It is impossible to compare charges which are a nullity, which in Mr. White's own words charged offences not known to the law, with counts which charge valid offences.

19 I am satisfied, accordingly, that the Director of Public Prosecutions was entitled to add in the two newcounts into the indictment and I would allow the appeal of the Director of Public Prosecutions against the decision of...