Eamon Cruise v Judge Frank O'Donnell and DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Quirke
• Judgment Date: 08 December 2004
• Neutral Citation: [2004] IEHC 376
• Court: High Court
• Docket Number: IEHC 376 [2004]
• Date: 08 December 2004

[2004] IEHC 376

THE HIGH COURT

IEHC 376 [2004]

No. 551 J.R. [2004 ]

CRUISE v. JUDGE O'DONNELL & D.P.P.

JUDICIAL REVIEW

BETWEEN

EAMONN CRUISE

APPLICANT

AND

JUDGE FRANK O'DONNELL AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

Citations:

CRIMINAL PROCEDURE ACT 1967 S4(E)

CRIMINAL JUSTICE ACT 1999 S9

MISUSE OF DRUGS ACT 1977

CRIMINAL PROCEDURE ACT 1967 S4(E)(5)(a)

CRIMINAL JUSTICE ACT 1999 PART III

CRIMINAL PROCEDURE ACT 1967 S4

CRIMINAL PROCEDURE ACT 1967 S5

PHIPPS V JUDGE HOGAN & DPP UNREP QUIRKE 27.5.2004

DPP V WINDLE & WALSH 1999 4 IR 280 2000 1 ILRM 75

BYRNE V GREY 1988 IR 31

BERKLEY V EDWARDS 1988 IR 217

BLANCHFIELD V HARTNETT & ORS 2001 1 ILRM 193

Abstract:

Criminal law - Evidence - Admissibility - Application to dismiss - Purpose of procedure - Whether admissibility of evidence proper matter to be decided in application to dismiss prior to criminal trial - Whether Circuit Court judge not hearing trial has jurisdiction to rule on admissibility of evidence intended to be adduced at trial - Criminal Procedure Act 1967, section 4E.

the applicant was served with a book of evidence which included a search

warrant which grounded the evidence relied on by the prosecution. The applicant

applied to the first respondent pursuant to section 4E of the Criminal Procedure

Act 1967, as amended, to dismiss the charges on the basis that the book of

evidence failed to disclose any or any admissible evidence that the drugs,

which were the subject of the charges, had been seized lawfully since the search

warrant was invalid on the grounds that it did not identify the premises sought to

be searched. The respondent ruled that he had no jurisdiction to make the ruling

sought. The applicant applied to judicially review that decision.

Held by Quirke J in refusing the relief sought that the admissibility of particular

evidence to be adduced in a criminal trial could only be decided upon by the trial

judge conducting the criminal trial and its admissibility could not be challenged

in advance of the trial. Section 4E of the Act of 1967 was intended to enable an

accused make an application to have charges preferred against him dismissed

where the evidence was so weak that there was no probable cause to believe that

the accused might be guilty and was not intended that it should be challenged

on grounds of admissibility. In hearing an application pursuant to section 4E

of the Act of 1967 the trial court should consider the evidence upon which the

State intended to rely on the assumption that it would be adduced lawfully and

properly as outlined in the book of evidence.

Reporter: P.C.

JUDGMENT of

Mr. Justice Quirke

1 By Order of the High Court (McKechnie J.) dated 5^th day of July, 2004 the applicant was given leave to apply by way of Judicial Review for an order quashing a ruling of the first named respondent made on 11^th May, 2004. The ruling related to an application made pursuant to s. 4E of the Criminal Procedure Act1967(as inserted by s. 9 of the Criminal Justice Act1999. The first-named respondent held that he had no jurisdiction under the said s. 4E to decide on the validity of a search warrant. The applicant was also given leave to seek certain other reliefs ancillary to the substantive relief and consequential thereon.

2 1. On 18^th April, 2003 the applicant was charged before the District Court with the commission of seven offences contrary to the provisions of the Misuse of Drugs Act1977.

3 2. Having been served with the Book of Evidence the applicant was returned for trial to the Dublin Circuit Criminal Court. Proceedings have come before that court on a number of occasions and have been adjourned from time to time for procedural and other reasons.

4 3. On 30^th March, 2004, an application was made on behalf of the applicant to the first named respondent sitting as a Judge of the Dublin Circuit Criminal Court for an Order pursuant to s. 4E of the Criminal Procedural Act1967(as amended) dismissing the charges preferred against the applicant.

5 The grounds relied upon on behalf of the applicant was that the Book of Evidence failed to disclose any or any admissible evidence that the drugs which were the subject of the charges had been seized lawfully by the investigating members of An Garda Síochána since the search warrant requested by and issued to the prosecuting Gardaí failed to identify on its face the premises sought to be searched.

6 It was submitted that the warrant was accordingly invalid, void and of no effect. It was contended on behalf of the applicant that the Book of Evidence served upon the applicant failed to disclose any admissible evidence in support of the charges preferred against the applicant and that accordingly there was not a sufficient case to put the applicant on trial in respect of the charges preferred against him and that the court should dismiss those charges.

7 4. The first named respondent sought submissions from the parties as to his jurisdiction to hear and determine the applicant's application. Having received such submissions he made a ruling on the 11^th May, 2004, that the validity of a search warrant was a matter which fell to be determined by the trial judge during the course of a trial and was not an appropriate issue to be determined during the hearing of an application pursuant to s. 4E of the Criminal Procedures Act1967(as amended).

8 5. The applicant has been advised that the ruling made by the first named respondent is wrong in law and deprives him of his constitutional right to a trial in due course of law and has accordingly sought the relief which has been sought in these proceedings.

9 Section 4E of the Criminal Procedure Act1967(as inserted by s. 9 of the Criminal Justice Act1999) provides inter alia as follows:

10 2 "(1) At any time after the accused is sent forward for trial the accused may apply to the trial court to dismiss one or more of the charges against the accused.

11 (4) If it appears to the trial court that there is not a sufficient case to put the accused on trial for any charge to which the application relates, the court shall dismiss the charge.

3 (5)

12 (a) oral evidence may be given on an application under subs. (1) only if it appears to the trial court that such evidence is required in the interests of justice…"

13 On behalf of the applicant it is contended that the enactment of s. 4E of the 1967 Act comprises a radical alteration of the criminal law. It is argued that the legislation does not limit in any manner the issues of law or fact which can be determined by the court of trial on foot of an application pursuant to the provisions of s. 4E.

14 It is further contended that subs. (5) (a) of s. 4E makes express provision for the admission of oral evidence in support of an application under the section where"…such evidence is required in the interests of justice…".

15 The applicant says that this provides legislative authority for the admission of evidence other than that contained within the Book of Evidence in support of an application pursuant to the provisions of s. 4E of the 1967 Act. It is argued that this may include evidence designed to demonstrate that specific evidence which will be relied upon by the prosecuting authority is inadmissible as a matter of law.

16 It is also contended that the legislative provisions are intended to buttress the right of an accused person to a trial with reasonable expedition in due course of law and to avoid the necessity for a lengthy, arduous and expensive criminal trial...