Eamon Cruise v Judge Frank O'Donnell and DPP

JudgeMr. Justice Hardiman,MR. JUSTICE FENNELLY
Judgment Date20 December 2007
Neutral Citation[2007] IESC 67
CourtSupreme Court
Docket Number[2004] No. 551 JR,[S.C. No. 40 of 2005]
Date20 December 2007


Murray CJ.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

[2004] No. 551 JR


Judicial review - Practice and procedure - Criminal law - Criminal Procedure - Evidence - Statutory interpretation - Criminal process - Validity warrant challenged - Quash conviction -Whether would bring motion - Criminal Justice Act 1999 - Criminal procedure Act 1967

The applicant/ appellant asserted an entitlement for the Circuit Court to determine in advance of trial the validity of a search warrant used against him. The issue arose as to the interpretation of the provisions in s. 9 of the Criminal Justice Act 1999, inserting s. 4E into the Criminal procedure Act 1967, providing that charges could be dismissed in certain circumstances. The applicant asserted that there was no limit to the preliminary issue that could be determined by that section.

Held by the Supreme Court (Denham J) (Hardiman J. dissenting), that it was not intended that the section would have the broader intention asserted for by the applicant. S. 4E could not be such a free standing provision. The trial judge had declined jurisdiction to consider the validity of the warrant and had erred in his decision and which would be quashed.

Reporter: E.F.


JUDGMENT of MR. JUSTICE FENNELLY delivered the 20th day of December 2007


1. This appellant, who is charged with a number of serious drugs offences, wants to have the Circuit Court determine in advance of his proposed trial whether a search warrant which was used to obtain the evidence against him was valid and to order that the charges be dismissed. Whether this can be done depends on the interpretation of provisions of section 9 of the Criminal Justice Act, 1999, which inserted a new section 4E into the Criminal Procedure Act, 1967 ("the Act of 1967"). That Act ended the preliminary examination procedure in the District Court. The trial Court, rather than the District Court, may now be asked to decide whether there is a sufficient case to answer. The appellant failed in his application before the first-named respondent.


2. The Appellant brought the matter before the High Court in an application for Judicial Review. His application was dismissed by Quirke J in a judgment delivered on 8th December 2004.


Procedural history


3. Seven charges have been laid against the Appellant. They all relate to alleged possession of controlled drugs at premises in Clondalkin, Dublin 12 on 20th June 2002. One charge alleges possession for sale or supply of drugs to a value of EUR13,000 or more contrary to section 15A (as inserted by section 4 of the Criminal Justice Act, 1999) and section 27 (as amended by section 5 of the Criminal Justice Act, 1999) of the Misuse of Drugs Act, 1977. I will refer to this as the section 15A charge.


4. The Appellant was charged on 18th April 2003 before the District Court. He was duly served with a book of evidence and returned for trial to the Dublin Circuit Criminal Court, where his case has been adjourned from time to time.


5. Counsel for the Appellant applied on 30th March 2004 to have the case against him dismissed pursuant to section 4E of the Act of 1967. According to his affidavit in the present proceedings, the Appellant contended:


"The Book of evidence fails to disclose any, or any admissible evidence to the effect that the drugs the subject-matter of the within prosecution, were lawfully seized by way of lawful authority by the investigating members of An Garda Siochana.


1) The Book of evidence herein fails to disclose any admissible evidence against the accused.


2) The search warrant requested by and issued to the prosecuting Garda failed to include on its face the


premises sought to be searched by them and was therefore invalid."


6. The application was heard before the first-named respondent. Counsel for the appellant submitted that the previous procedure had been radically altered by the Act of 1999 and that the judge at the court of trial now has jurisdiction to determine the validity of a search warrant in an application by an accused person to have charges against him dismissed. According to the affidavit, counsel also submitted that "the procedure expanded the previous legislation by introducing the possibility of adducing oral evidence," and that the trial court was "entitled to embark on the hearing of an application to dismiss where a point of law or fact is raised by an accused which if successful, would dispense with the requirement of a jury to determine the guilt or innocence of an accused." (emphasis added).


7. Having heard arguments which largely prefigure those advanced in the High Court and before this Court, the first-named respondent ruled on 11th May 2004 that the validity of search warrants was to be determined at the trial and could not be the subject-matter of an application to dismiss pursuant to section 4E of the Act of 1967.


8. The Appellant obtained leave from the High Court (McKechnie J) to apply for judicial review of the decision of the first-named respondent. The central ground for the application was that the first-named respondent was wrong in holding that section 4E precluded a determination as to the validity of a search warrant.


9. Quirke J dismissed the application for judicial review in a judgment delivered on 8th December 2004. He held that section 4E was "intended to enable an accuse person to make an application to have charges preferred against him dismissed where the evidence upon which the State intends to rely is so weak that there is no probable cause to believe that the accused might be guilty ."


He continued:


"it was clearly not intended that applicants pursuant to s. 4E would be entitled to challenge evidence disclosed in the Book of Evidence on grounds of credibility or weight. 1 am satisfied also that it was not intended that it should be challenged on grounds of admissibility. Such applicants (and the court hearing the applications) should take the State's case as disclosed in the Book of Evidence at its highest point.


The admissibility of particular evidence will invariably require to be determined by the trial judge during a criminal trial. In determining admissibility the trial judge may require to hear evidence by way of a voire dire or to exercise discretion judicially as to the admission of particular evidence. The validity of a warrant may depend upon the state of mind of the person applying for or issuing the warrant. Enquiry into such matters cannot be properly conducted in isolation from all of the other evidence to be adduced in a criminal trial. It is undesirable that specific findings of fact or law should be made in advance of a criminal trial.


In hearing an application pursuant to s. 4E of the 1967 Act (as amended) the trial court should consider the evidence upon which the State intends to rely on the assumption that it will be adduced lawfully and properly and as outlined in the Book of Evidence. The court must then decide whether, if so


adduced, it discloses a 'prima facie' case against the accused.


If so, the accused should be sent forward for trial. If not then the accused person should be discharged."


Statutory provisions


10. Part III of the Act of 1999 abolished the former system of preliminary examination in the District Court, as it had existed since the passing of the Act of 1967. Under the amended statutory regime, the District Court sends an accused person forward for trial to the appropriate court of jurisdiction. Section 4A of the Act of 1967, inserted by section 9 of the Act of 1999, provides that where "an accused person is before the District Court charged with an indictable offence, the Court shall send the accused forward for trial to the court before which he is to stand trial (the trial court)


Section 4E, inserted by the same section needs to be cited in its entirety:


4E.-(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.

  • (2) Notice of an application under subsection (1) shall be given to the prosecutor not less than 14 days before the date on which the application is due to be heard.

  • (3) The trial court may, in the interests of justice, determine that less than 14 days notice of an

    application under subsection (1) may be given to the prosecutor.

  • (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.

  • (5) (a) Oral evidence maybe given on an application under subsection (1) only if it appears to the trial court that such evidence is required in the interests of justice.

    (b) In paragraph (a) 'oral evidence' includes

    • (i) any evidence given through a live television link pursuant to Part III of the Criminal Evidence Act, 1992, or section 39 of the Criminal Justice Act, 1999, or

    • (ii) a videorecording of any evidence given through a live television link pursuant to that Part or section in proceedings under section 4F.

  • (6) Where the trial court is satisfied that it is in the interests of justice that any document required under this Part to be served on the accused or his solicitor be served at the hearing of an application under this section

    • (a) the prosecutor shall serve the document on the accused or his solicitor, if any, at the hearing, and

    • (b) the court may, if it considers it appropriate to do so, adjourn the hearing for that purpose.

  • (7) Where a charge is dismissed by the trial court under subsection (4), the prosecutor may, within 21 days after the dismissal date,...

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