Hughes v Judge Garavan

• Jurisdiction: Ireland
• Judge: Mrs. Justice McGuinness
• Judgment Date: 18 December 2003
• Neutral Citation: [2003] IESC 65
• Court: Supreme Court
• Docket Number: No. 3/2002
• Date: 18 December 2003

[2003] IESC 65

THE SUPREME COURT

Murray J.

McGuinness J.

Hardiman J.

No. 3/2002

HUGHES v. GARAVAN & DPP

JUDICIAL REVIEW

BETWEEN/

FIONN HUGHES

Applicant

and

JUDGE JOHN GARAVAN AND THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondents

Citations:

MISUSE OF DRUGS (AMDT) REGS 1993 SI 342/1993

MISUSE OF DRUGS ACT 1977 S5

MISUSE OF DRUGS ACT 1977 S15(A)

MISUSE OF DRUGS ACT 1977 S27

CRIMINAL JUSTICE ACT 1999 S4

CRIMINAL JUSTICE ACT 1999 S5

CRIMINAL JUSTICE ACT 1999 PART II

CRIMINAL PROCEDURE ACT 1967 PART II

CRIMINAL JUSTICE ACT 1999 PART III

CRIMINAL PROCEDURE ACT 1967 S6(1)

CRIMINAL PROCEDURE ACT 1967 S6(4)

CRIMINAL PROCEDURE ACT 1967 S8(5)

CRIMINAL JUSTICE ACT 1984 S23(3)(B)

CRIMINAL PROCEDURE ACT 1967 S5(1)

CRIMINAL PROCEDURE ACT 1967 S7(1)

CRIMINAL PROCEDURE ACT 1967 S8(1)

CRIMINAL PROCEDURE ACT 1967 S8(2)

CRIMINAL PROCEDURE ACT 1967 S8(5)

CRIMINAL PROCEDURE ACT 1967 S8(6)

CRIMINAL PROCEDURE ACT 1967 S11

DPP V WINDLE 2000 1 ILRM 75

AG, PEOPLE V O'BRIEN 1963 IR 79

CRIMINAL PROCEDURE ACT 1967 S7

CRIMINAL PROCEDURE ACT 1967 S8

HOLLAND, STATE V KENNEDY 1977 IR 193

SHERRY, STATE V WINE 1985 ILRM 196

AG, PEOPLE V O'BRIEN 1963 IR 65

DALY, STATE V RUANE 1988 ILRM 117

KILLEEN V DPP 1998 1 ILRM 1

DAVIDSON, STATE V FARRELL 1960 IR 438

ANISMINIC LTD V FOREIGN COMPENSATION COMMISSION 1969 2 AC 147

O'SHEA V O'BUACHALL & DPP 2001 3 IR 137 2001/20/5420

COSTELLO V DPP 1984 IR 436

COURTS OF JUSTICE ACT 1936 S62

C, STATE V MIN JUSTICE 1967 IR 106

GLAVIN V GOVERNOR OF MOUNTJOY PRISON 1991 2 IR 421

CONSTITUTION ART 38.1

O'SHEA V DPP 1988 IR 655

SHERRY, STATE V WINE 1985 ILRM 196

WILLIAMS, STATE V KELLEHER 1983 IR 112

CRIMINAL PROCEDURE ACT 1967 S6(2)

GILLIGAN V DPP UNREP BARRON 17.11.1987 1987/6/1694

CRIMINAL PROCEDURE ACT 1967 S4

CRIMINAL PROCEDURE ACT 1967 S7(2)

CRIMINAL PROCEDURE ACT 1967 S7(3)

Synopsis:

- [2004] 1 ILRM 401

The applicant sought by way of judicial review, inter alia, an order of certiorari quashing his return for trial and other reliefs aimed at preventing his trial. The applicant’s case almost wholly turned on an analysis of the now abolished preliminary examination procedure as set out in the Criminal Procedure Act 1967 and in particular the discretion to allow additional evidence to be served.

Held by the Supreme Court (Murray, McGuinness and Hardiman JJ) in allowing the appeal and substituting for the order of the High Court an order of certiorari setting aside the order of the District Court returning the applicant for trial and remitting the charge to the District Court judge to proceed with it in accordance with law that the District judge exceeded his statutory authority in receiving the additional evidence.

Mrs. Justice McGuinness

1 This is an appeal by the applicant/appellant against the judgment and order of the High Court (Kelly J.) refusing the reliefs sought by the applicant in his judicial review proceedings. The applicant in those proceedings had sought an order ofcertiorari quashing his return for trial to Galway Circuit Court on one of the eight drug related charges brought against him. The applicant also sought a number of other reliefs aimed at preventing his trial on that particular charge, together with an order of mandamus directing the first-named respondent to discharge the applicant as to the specified offence.

2 The facts relating to the applicant's return for trial to Galway Circuit Court by the first-named respondent are not in issue and may be summarised as follows. The return for trial was made in respect of eight charges, all of which related to illegal drugs. The charges arose out of two incidents, one of which related to a search of the applicant's apartment in Galway on 4^th October, 1999 and the other to the interception of a motor vehicle in which the applicant was a passenger at Clarinbridge, Co. Galway, on 14^th October, 1999.

3 The eighth charge against the applicant was formulated as follows:

"That you the said accused did on the 14^th October 1999 at Hillpark, Clarinbridge, Co. Galway within the District Court area of Galway, District No. 7, have in your possession one or more controlled drugs to wit cannabis resin and cocaine for the purpose of selling or otherwise supplying the drugs to another in contravention of the Misuse of Drugs Regulations, 1983 and 1993 made under section 5 of the Misuse of Drugs Act,1977and at the time while the drugs were in your possession the aggregate market values of the controlled drugs amounted to £10,000 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."

4 As was pointed out by the learned trial judge in his judgment this is a charge which, if it results in a conviction, carries very serious consequences for the applicant as Part II of the Criminal Justice Act,1999which regulates the offence provides for a minimum sentence of ten years imprisonment.

5 The eight charges against the applicant were brought before the District Court for the purpose of preliminary examination in accordance with the provisions of Part II of the Criminal Procedure Act,1967. This preliminary examination procedure has now been effectively abolished for prosecutions commencing after 1^st October, 2001 by virtue of the provisions of Part III of the Criminal Justice Act,1999. In the instant case, the prosecution having commenced prior to that date, the procedure under the Criminal Justice Act, 1967 (the Act of 1967) applied, and in essence the applicant's case almost wholly turns on an analysis of that procedure as set out in the statute.

6 What occurred in the District Court is set out in the affidavit of Benen Fahy, solicitor for the applicant, and is not in dispute. On 4^th September, 2000 the applicant was served with a list of witnesses and a book of statements of evidence in accordance with section 6(1) of the Act of 1967, commonly called "the book of evidence". The preliminary examination of the case against the applicant was adjourned until the 2^nd October, 2000 in order to allow consideration of the book of evidence by the applicant.

7 At the adjourned hearing of the preliminary examination on 2^nd October, 2000 no evidence was called by either side by way of deposition. The judge asked if the parties had any submissions to make in relation to the book of evidence. The prosecution did not make any submissions. The solicitor for the applicant submitted to the court that the book of evidence did not disclose any evidence of the value of the drugs in question and in those circumstances submitted that the applicant should not be returned for trial on the eighth count of the statement of charges of 4^th September, 2000 which has been set out above. Following that submission the prosecution requested an adjournment in order to consider the point raised by Mr. Fahy relating to the value of the drugs in question and the hearing was adjourned to 16^th October, 2000.

8 On the 13^th October, 2000 the solicitor for the applicant received a "notice of additional evidence" by way of facsimile, indicating that the prosecution proposed to call further evidence from Detective Garda Jarlath Burke, purporting to testify as to the value of the drugs in question. That statementwas also served on the applicant personally on 13^th October, 2000 and was furnished to the court on 16^th October, 2000. On that date the solicitor for the applicant asked for time to consider its contents and the preliminary examination of the case was adjourned until the 20^th October, 2000. On that occasion the solicitor for the applicant made submissions that it was unreasonable for the prosecution to purport to prove the value of the drugs in question without having analysed the purity of the cocaine and requested that such analysis be carried out. The preliminary examination was again adjourned until the 11^th December, 2000. In his affidavit Mr. Fahy avers that he understood that such analysis was to be carried out by the prosecution prior to the adjourned hearing.

9 Prior to the adjourned hearing on 11^th December, 2000 Mr. Fahy took advice from counsel and as a result of that advice he made submissions to the first-named respondent on that date to the effect that the further statement of Detective Garda Jarlath Burke should not be accepted in evidence by the court as it was not permitted by the Criminal Procedure Act,1967. Secondly, he submitted to the judge that it was unfair to allow such evidence to be served at that stage in the proceedings. He accepted that section 6(4) of the Act of 1967 allows further evidence to be served but submitted that it did not apply in this particular case. The first-named respondent found against him on this point and held that the evidence could be admitted.

10 Detective Inspector Tony O'Donnell was then asked whether or not an analysis of the purity of the cocaine would be carried out and he replied that it would not. The applicant was returned for trial to the Galway Circuit Court on the 10^th January, 2001. This has now been overtaken by events as the applicant's judicial review proceedings were commenced.

11 On 22^nd January, 2001 the applicant obtained leave from the High Court (O'Neill J.) to bring judicial review proceedings. In the order giving leave he was permitted to seek the following reliefs:

12 i "(i) An order of certiorari by way of application for judicial review quashing the return of the applicant for trial before the Galway Circuit Court on the eighth charge referred to in the return for trial dated the 18^th day of December, 2000 and signed by Judge John Garavan.

13 (ii) Further or in the alternative an order quashing the service of the further statement of evidence of Detective Inspector Jarlath Burke.

14 (iii) A declaration that the applicant's...