DPP (At the Suit of Garda Sandip Shrestha) v Jordan Grimes

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 12 July 2021
• Neutral Citation: [2021] IEHC 484
• Docket Number: [2021 No. 9 SS]
• Court: High Court

In the Matter of a Case Stated Pursuant to Section 52 of the Courts (Supplemental Provisions) Act 1961

Between

The Director of Public Prosecutions (At the Suit of Garda Sandip Shrestha)

Prosecutor

and

Jordan Grimes

Defendant

[2021] IEHC 484

[2021 No. 9 SS]

THE HIGH COURT

Summary

This is a case stated arising from an unsuccessful prosecution application to amend certain charge sheets. The learned District Judge, on the application of the DPP, has asked the following question of the High Court: ‘In the circumstances of the present case, am I correct in deciding to exercise my discretion in refusing to make the amendments’. For the reasons set out in this judgment, the court's respectful answer to that question is ‘no’. This summary forms part of the court's judgment.

JUDGMENT of Mr Justice Max Barrett delivered on 12 ^th July 2021 .

A

Case Stated

1 . The court is grateful to the learned District Judge for the detailed consultative case stated that she has furnished. The text of that consultative case stated is as follows:

“A. Introduction:-

….2. The Defendant was charged with three offences of having in his possession a controlled drug for the purpose of sale or supply on 18th, 24th and 25th January 2018 in contravention of the Misuse of Drugs Regulations 1988 and 1993, made under section 5 of the Misuse of Drugs Act 1977 as amended,1 contrary to s. 15 of the Misuse of Drugs Act 1977 (hereinafter ‘the Act of 1977’).

3. …On the 18/07/2019 the Defendant pleaded not guilty to the charges and a date for hearing of the matter was fixed for the 28/11/2019. On or about the 21st October 2019 the prosecution listed the matter for the purpose of making a preliminary application to amend the charge sheets which are the subject of this case stated. This application was heard by the Court on the 21/11/2019 simultaneously with two separate prosecutions of separate defendants in which the same issue arose. Mr. Michael Durkan, State Solicitor, appeared for the prosecution. Ms Niamh Barry BL, instructed by Tony Collier Solicitor, appeared for the Defendant herein. The application was to amend the sheets in the following terms to delete ‘1998’ and ‘1993’ and insert ‘2017 as amended’. Therefore, the proposed amendment would read ‘in contravention of the Misuse of Drugs Regulations 2017 as amended, made under section 5 of the Misuse of Drugs Act 1977’.

4. The application to amend the charge sheets was ultimately refused by me. I took the view that notwithstanding the application was being made prior to the hearing date, no proper explanation had been forthcoming as to why the application was being made some 23 months after the date of the alleged offence, of more significance and in addition to this I also took the view that given the significance of the regulations in this type of case (which I was satisfied based on the case law created the offence), any such application to amend went to merits of the case and were a matter of substance and not just form, in those circumstances I declined to make the amendment. The exercise of my discretion not to make the amendment is the matter at issue in this case stated. For the sake of completeness the accused is also charged with three counts of possession contrary to Section 3 of the Act however these charges do not form any part of this case stated.

B. Proceedings:-

5. The Accused was charged with the offences and brought before the court on 28th March 2019. Ultimately the DPP directed summary disposal and the accused pleaded not guilty on 28th July 2019. The court accepted jurisdiction. The total combined value was €80. The matter was listed for hearing on 28th November 2019.

6. Prior to the matter being heard the prosecution sought to have the matter listed to make the application to amend the charge sheets. On the 21/11/2019 the Court refused the application of the prosecution to amend the charge sheet in respect of charge sheet No. 19795505, which related to the substance ‘Alprazolam’. The Court proceeded to dismiss that charge. Mr. Durcan raised a possibility of stating a case on the matter of refusing to make the amendment sought. In respect of the remaining two charges which pertain to the substance ‘Diamorphine’, the Court indicated that it was minded to make the amendments to those charge sheets but would leave that matter over to the hearing date (28/11/2019) and hear further legal argument prior to making a decision on that issue.

7. On the 28/11/2019 the Court heard further legal argument in respect of the application to amend the charge sheets and adjourned the matter for written submissions to the 19/12/2019. On this date Mr. Jonathan Antoniotti, State Solicitor, appeared for the prosecution. Ms. Niamh Barry BL, instructed by Tony Collier Solicitor, appeared for the Defendant herein. The Court requested that the Defendant provide brief written submissions addressing the written submissions of the prosecution in the matter of DPP (Garda David O'Callaghan) v. Jordan Cooper and setting out the arguments of the Defence made orally before it on the 28/11/2019. (This case was one of those heard simultaneously and involved the same issue)….

C. Evidence Proved or Admitted Before Me:-

8. The Court was advised that the charge sheets before it on which the complaint was based in respect of the alleged offence contrary to s. 15 of the Act of 1977 stated that the Defendant was charged with committing an offence contrary to:-

‘On the 17/01/18 at Sheriff Street Dublin 1 in the said District Court Area of Dublin Metropolitan District, had in your possession a controlled drug, to wit, Alprazolam for the purpose of selling or otherwise supplying it to another in contravention of the Misuse of Drugs Regulations, 1988 and 1993, made under Section 5 of the Misuse of Drugs Act 1977’

‘On the 24/01/18 at Sherriff Street Dublin 1 in the said District Court Area of Dublin Metropolitan District, had in your possession a controlled drug, to wit, Diamorphine for the purpose of selling or otherwise supplying it to another in contravention of the Misuse of Drugs Regulations, 1988 and 1993, made under Section 5 of the Misuse of Drugs Act 1977’

‘On the 25/01/18 at Sherriff Street Dublin 1 in the said District Court Area of Dublin Metropolitan District, had in your possession a controlled drug, to wit, Diamorphine for the purpose of selling or otherwise supplying it to another in contravention of the Misuse of Drugs Regulations, 1988 and 1993, made under Section 5 of the Misuse of Drugs Act 1977’

9. A copy of section 7 of the Misuse of Drugs (Amendment) Act 2016 was handed into the Court, which section repealed in full the Misuse of Drugs Regulations 19884. The Court was advised that the offence of the possession of controlled drugs for sale or supply is now an offence by virtue of Regulation 5 of the Misuse of Drugs Regulations 2017 which came into operation on the 04/05/2017.

10. The Court was advised by Mr Antoiotti for the prosecution on 21 October that the error contained on the charge sheets arose as a result of the failure to update the relevant wording on the Garda PULSE system. The court enquired as to whether after almost two and a half years after the Regulations of 2017 commenced whether the same error on charge sheets being printed by the pulse system was occurring. The Court was told that it was but that ‘it was being changed on the advice of Senior Counsel’. On the 28/11/2019 the Court heard evidence from Sergeant Vincent Campbell that the error was brought to the attention of senior members of An Garda Siochana but that the error was not rectified until some time in or around November 2019 some two an a half years after the legislation and regulations were changed. Sergeant Campbell gave evidence that the updating of the PULSE system was an IT matter and he could not speak to why the error was not rectified until November 2019.

11. Evidence was given by the prosecution on the 28/11/2019 in relation to submissions by the Defence that there was delay in prosecuting the matter and delay in seeking to rectify the error on the charge sheet. The prosecuting member Garda Sandip Shrestha gave evidence that the Defendant was interviewed in relation to the alleged offences on the 8th day March 2019 and later charged on the 28/03/2019 and the 20/06/2019 with the offences before the Court. Garda Shrestha was not in a position to give evidence of the date on which he received the certificates of analysis from the FSI.

12. Sergeant Vincent Campbell gave evidence that the prosecution before the Court arises out of an undercover policing operation that commenced in October 2017 and ceased in June 2018.

13. Detective Garda Daire Daly gave evidence in his capacity as exhibits officer that he took possession of the substance alprazolam on the 17/01/2018 and submitted that substance for testing to Forensic Science Ireland (hereinafter “FSI”) on the 15/02/2018. Detective Garda Daire Daly gave evidence that he took possession of the substance diamorphine on the 24/01/2018 and the 25/01/2018 and submitted both quantities of diamorphine for testing to FSI on the 26/06/2018. Detective Garda Daly gave evidence that he was not directed by any person as to when to deliver the drugs for testing and that it was his practice to wait until he had a batch. He stated ‘I don't go up to FSI every week’, ‘I bring a batch every now and then’. He stated that he ‘would have brought a number of exhibits in February’ and ‘waited for a larger number to bring up in June’. Garda Daly further stated that he is not aware of how long certain drugs take to analyse.

14. There was a failure by the prosecution to provide a satisfactory explanation to the Court for the overall delay in making the application to amend the charge sheets in the period of time between March 2019 and October 2019.

D. Legal Argument:-

Submissions of the Prosecution on the...