Farrelly v Devally

JurisdictionIreland
JudgeMr. Justice Morris
Judgment Date01 January 1998
Neutral Citation[1996] IEHC 5
CourtHigh Court
Docket NumberNo. 236 J.R./1995,[No.
Date01 January 1998
FARRELLY v. DEVALLY
JUDICIAL REVIEW

BETWEEN

KENNETH FARRELLY
APPLICANT

AND

HIS HONOUR JUDGE LIAM DEVALLY AND THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTS

[1996] IEHC 5

No. 236 J.R./1995

THE HIGH COURT

Synopsis:

JUDICIAL REVIEW

Certiorari sought - applicant convicted under Misuse of Drugs Act 1977 & 1984 - whether trial judge erred in law in interpreting statute - whether conviction lawful - whether trial judge acted in excess of jurisdiction - Held: Relief refused - (High Court - Morris J. - 19/07/1996) - [1998] 4 IR 76

|Farrelly v. Judge Devally & DPP|

Citations:

MISUSE OF DRUGS ACTS 1977–1994 S21(4)

PREVENTION OF CRIMES ACT 1871 S12

MISUSE OF DRUGS ACT 1977 S23

MISUSE OF DRUGS ACT 1984 S12

MISUSE OF DRUGS ACT 1984 S12(1)(a)

MISUSE OF DRUGS ACT 1984 S12(1)(b)

DPP V ROONEY 1992 IR 7

DPP, PEOPLE V BOYLAN 1991 1 IR 477

HOLLAND, STATE V KENNEDY 1977 IR 193

ANISMINIC LTD V FOREIGN COMPENSATION COMMISSION 1969 2 AC 147

CORK CC, STATE V FAWSITT UNREP MCMAHON 13.3.81 1981/1/143

LENNON V CLIFFORD & DPP 1993 ILRM 77

CHIEF CONSTABLE OF NORTH WALES POLICE V EVANS 1982 3 AER 141

DUBLIN POLICE ACT 1842 S29

1

Judgment of Mr. Justice Morris delivered the 19 day of July, 1996 .

2

The Applicant was convicted in Kilmainham District Court on the 8th March, 1993 of three offences as follows:

3

(a) On the 8th March, 1992 at Ballyfermot Road, Dublin, he unlawfully obstructed one Garda Anita Connolly by refusing to allow himself to be searched contrary to Section 21(4) of the Misuse of Drugs Acts, 1977/1994 as amended.

4

(b) That on the same occasion he unlawfully assaulted Garda Anita Connolly a Garda in due execution of her duty contrary to Section 12 of the Prevention of Crimes Act, 1871, and

5

(c) That he did on the same occasion unlawfully assault one Donal Brazel, a Garda in the due execution of his duty contrary to Section 12 of the Prevention of Crimes Act, 1871.

6

From these convictions the Applicant appealed to the Circuit Court and the matter came on for hearing on the 26th June, 1995. The first named Respondent affirmed the said convictions and varied the amount of the fine for obstruction by reducing the amount from £160 to £20.

7

By Order of the 9th October, 1995 the Applicant was given leave to apply for an Order of Certiorari by way of application for Judicial Review in respect of the Order of the first named Respondent on the grounds that the first named Respondent erred in law in interpreting the provisions of the Misuse of Drugs Acts, 1977/ 1984thereby resulting in the wrongful conviction of the Applicant and, accordingly, acted in excess of jurisdiction.

8

Leave was also given on the basis that the first named Respondent erred in law in refusing to dismiss the charges on the grounds that they were bad for duplicity. However, while this ground was not abandoned, no submissions were made in support of it and, accordingly, I confine my judgment to the first of these two grounds.

9

In order to identify the grounds upon which the relief is sought, it is necessary to set out in some detail the facts upon which this application is based.

10

These facts emerge from Affidavits sworn and filed in this matter.

11

On the date of the alleged offence, namely, the 8th March. 1992, Garda Anita Connolly and Garda Brazel observed and monitored the movements of known drug addiets from an unmarked Garda car at a point near the shopping centre in Ballyfermot. While they were doing this the Applicant stopped his car close by. He was approached by Garda Connolly and Garda Brazel. Garda Connolly produced her identification and informed him that she was a member of An Garda Siochana and that he was being detained for the purposes of a search under the Misuse of Drugs Acts, 1977/ 1984and that he and his car would be brought to Ballyfermot Garda Station for the purposes of this search.

12

The powers of detention and search under the Misuse of Drugs Acts are contained in Section 23 of the 1977 Act as amended by Section 12 of the 1984 Act.

13

Section 23 of the 1977 Act provides that a member of An Garda Siochana who with reasonable cause suspects that a person is in possession in contravention of this Act of a controlled drug may without warrant;

14

(a) search the person and if he considers necessary for that purpose detain the person for such time as is reasonably necessary to make a search,.

15

(b) search any vehicle, vessel or aircraft in which he suspects that such drug may be found and for the purpose of carrying out the search may, if he thinks fit, require the person who for the time being is in control of such vehicle or aircraft to bring it to a stop and when stopped to refrain from moving it, or in any case where such vehicle, vessel or aircraft is already stationery, to refrain from moving it.

16

Accordingly, the section empowers a member of An Garda Siochana to search "on the spot". Section 12 of the Act of 1984 empowers the Gardai to search the suspect or the vehicle in the Garda Station. It provides:

17

a " 1(a) Where a member of An Garda Stochana decides to search a person under this section he may require that person to accompany him to a Garda Station for the purpose of being so searched at that station.

18

b " 1(b) Where a member of An Garda Siochana decides to search a vehicle, vessel or aircraft under the section he may as regards the person who appears to him to be the owner or in control or charge for the time being of the vessel, vehicle or aircraft make one or more of the following requirements:

19

(a) Require such person pending the commencement of the search not to remove from the vehicle, vessel or aircraft as may be appropriate any substance, article or thing.

20

(b) In case the decision relates to a vehicle and the place at which he finds the vehicle is in his reasonable opinion unsuitable for such search, require such person forthwith to take the vehicle or cause it to be taken to a place which he considers suitable for such search and which is specified by him.

21

(c) Require the person to be in or on or to accompany the vehicle, vessel or aircraft as may be appropriate for so long as the requirement under this paragraph remains in force."

22

The section goes on to provide that where there is a failure to comply with the requirements made under the section then the member of An Garda Siochana may arrest the person without warrant and may take the vehicle to the place that he considers suitable. The section also creates it an offence to fail to comply with the provisions of the section.

23

It is submitted by Counsel for the Applicant that there...

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