Kelly v District Judge Dempsey & DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice John MacMenamin |
| Judgment Date | 14 July 2010 |
| Neutral Citation | [2010] IEHC 336 |
| Court | High Court |
| Date | 14 July 2010 |
[2010] IEHC 336
THE HIGH COURT
BETWEEN
AND
MISUSE OF DRUGS ACT 1977 S5
MISUSE OF DRUGS ACT 1977 S15
MISUSE OF DRUGS ACT 1977 S27
MISUSE OF DRUGS ACT 1984 S6
MISUSE IF DRUGS (AMDT) REG 1993 SI 342/1993
DPP v COLLINS 1981 ILRM 447
ROAD TRAFFIC ACT 1961 S49(2)
ROAD TRAFFIC ACT 1961 S21
DOCUMENTARY EVIDENCE 1925 S4(1)
ROAD TRAFFIC (AMDT) ACT 1978 S26
ROAD TRAFFIC (AMDT) ACT 1978 PART III REGS 1978 SI 193/1978
CONSTITUTION ART 15.5
TAYLOR, STATE v CIRCUIT JUDGE OF WICKLOW & ORS 1951 IR 311
BUCKLEY v KIRBY 2000 3 IR 431
R (MARTIN) v MAHONEY 1910 2 IR 695
GRODZICKA v JUDGE NI CHONDUIN & DPP UNREP DUNNE 30.10.2009 2009/24/5893 2009 IEHC 475
FARRELLY v DEVALLY 1998 4 IR 76
ANISMINC LTD v FOREIGN COMPENSATION CMSR & ANOR 1969 2 AC 147
CORK CO COUNCIL, STATE v FAWSITT UNREP MCMAHON 13.3.81 1981/1/143
HARTE v LABOUR COURT 1996 2 IR 171 1996 2 ILRM 450 1996/5/1330
ROCHE v DISTRICT JUDGE MARTIN 1993 ILRM 651
LENNON v JUDGE CLIFFORD 1996 2 IR 590 1996/6/1573
MISUSE OF DRUGS REGS 1988 SI 328/1988 ART 4(1)(B)
CHARLETON CRIMINAL LAW BUTTERWORTHS DUBLIN 1999
DPP v CLEARY 2005 2 IR 189 2005/19/3896 2005 IECCA 51
PEOPLE (AT THE SUIT OF THE AG) v KENNEDY 1946 IR 517
DPP v MURRAY UNREP CCA 10.3.2005 2006/20/4124 2005 IECCA 31
AG, PEOPLE v GRIFFIN 1974 IR 415
DANGEROUS DRUGS ACT 1934 S14
MISUSE OF DRUGS REGS 1937 ART 9
MISUSE OF DRUGS ACT 1977 S5(1)
KING v AG 1981 IR 233
CRIMINAL LAW
Evidence
Judicial notice - Regulation - Proof of regulation - Essential proofs - Sufficient definition of charge - Evidence - Proof of offence - Offence created by regulation -Need for certainty re precise ingredients of offence and date of creation of offence - Possession of controlled drug for purpose of sale or supply - Whether this offence created by regulation - Whether proof of regulation essential proof where offence created by regulation - Whether District Court Judge entitled to take judicial notice of regulation where offence created by said regulation - DPP v Collins [1981] ILRM 447, DPP v Cleary [2005] IECCA 51, [2005] 2 IR 189, and King v Attorney General [1981] IR 233 applied; State (Taylor) v Circuit Judge of Wicklow [1951] IR 311 approved; Attorney General v Parke [2004] IESC 100, (Unrep, SC, 6/12/2004) distinguished; People (Attorney General) v Kennedy [1946] IR 517, People (Attorney General) v Griffin [1974] IR 416, Buckley v Kirby [2000] 3 IR 431, R (Martin) v Mahony [1910] 2 IR 695, Grodzicka v Judge Ní Chondúin and DPP [2009] IEHC 475, (Unrep, Dunne J, 30/10/2009), Farrelly v Devally [1998] 4 IR 76, Anisminic Ltd v Foreign Compensation Commission and anor [1969] 2 AC 147, State (Cork County Council) v Judge Fawsitt (Unrep, McMahon J, 13/3/1981), Harte v Labour Court [1996] 2 IR 171, Roche v District Judge Martin [1993] ILRM 651, Lennon v Judge Clifford [1996] 2 IR 590, People (DPP) v Murray [2005] IECCA 31, (Unrep, CCA, 10/3/2005), Attorney General v Cunningham [1932] IR 28, and People (Attorney General) v Edge [1943] IR 115 considered - Documentary Evidence Act 1925 (No 24), s 4(1) - Misuse of Drugs Act 1977 (No ), ss 5, 15, and 27 (as amended by Misuse of Drugs Act 1984 (No 18), s 6 - Misuse of Drugs Regulations 1988 (SI 328/1988) - Misuse of Drugs (Amendment) Regulations 1993 (SI 324/1993) - Constitution of Ireland 1937, arts 15.5 and 38 - Application granted (2009/1049JR - MacMenamin J - 14/7/2010) [2010] IEHC 336
Kelly v Judge Dempsey and DPP
Facts The applicant had been convicted of certain drugs offences. Judicial review proceedings were taken on the basis that the prosecution had failed to prove the regulations on which the conviction was based. It was submitted on behalf of the DPP that the failure to hand in the regulations was not fatal to a prosecution. Proof of the regulations constituted evidence of a formal or technical nature and the case could be reopened to admit this. On behalf of the applicant it was submitted that the proof of the regulations was essential in a prosecution of this nature, and that furthermore, the regulations made under the Act formed an essential part of the offence and it was therefore essential that they be proved. Regulations made by statutory instrument were not the same as statutes, in that, while judicial notice might be taken of statutes, the same could not be said of statutory instruments. The court had to decide whether in taking judicial notice of the regulations, the judge had acted in excess of jurisdiction.
Held by MacMenamin J in granting the application. In the absence of proof of regulations creating the offence, the existence of the precise ingredients of the offence may be in doubt. A court might be deprived of an opportunity of ensuring the accused would not be convicted for an act which had not been declared to be an infringement of the law at the date of its commission. The proof of a regulation creating an offence was an element or ingredient of one or more constitutional guarantees. The judge was not entitled to take judicial notice of the regulations. There was an error in excess of jurisdiction and not within it. It was thereby amenable to judicial review and the relief sought must be granted. The applicant has already served part if not all of the sentence which it was intended he should. To remit the case to the District Court would be futile and unjust.
Reporter: R.F.
JUDGMENT of Mr. Justice John MacMenamin dated the 14th day of July, 2010.
1. On 28 th July, 2009, the applicant appeared in the Dublin Metropolitan District Court charged that on 24 th October, 2008, he had in his possession at the North Circular Road, Dublin 1, a controlled drug, to wit Diamorphine (heroin) for the purpose of selling or otherwise supplying it to another in contravention of the Misuse of Drugs Regulations 1988 and 1993 made under s. 5 of the Misuse of Drugs Act 1977 contrary to ss. 15 and 27 (as amended by s. 6 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977.
2. The applicant entered a plea of not guilty. The Court is aware that the prosecution evidence was presented by Garda Tara Dolan. However, the kernel of this case relates to events at the end of the prosecution evidence.
3. Thus the evidence in this case is simply confined to a description of what happened at that point. Mr. Michael O'Connor, solicitor for the applicant, deposes that he made an application for a direction on the basis that the applicant had no case to answer. This submission was based upon the prosecution's failure to prove in evidence the Misuse of Drugs Regulations 1988 (S.I. No. 328 of 1988) and the Misuse of Drugs Regulations (Amendment) Regulations 1993 ( S.I. No. 342 of 1993). The applicant's case is that the tendering of the Regulations was an essential proof in a prosecution under the Misuse of Drugs Act 1977, as amended. In response, the first named respondent adjourned the case until 28 th July, 2009, in order to receive legal submissions as to whether the failure to tender the Regulations was fatal to a prosecution under s. 15 of the Misuse of Drugs Act 1977, as amended.
4. On 28 th July, 2009, the second respondent (Director of Public Prosecutions) was represented by his solicitor, Ms. Rachel Joyce.
5. Ms. Joyce submitted that the failure to hand in the Regulations was not fatal to a prosecution. She submitted that proof of the Regulations constituted evidence of a formal or technical nature and that the case might be reopened to admit this. Mr. Michael O'Connor repeated his submission that the proof of the Regulations was essential in a prosecution of this nature, and that furthermore, the Regulations made under the Act formed an essential part of the offence and it was therefore essential that they be proved. Mr. Michael O'Connor added that regulations made by statutory instrument were not the same as statutes, in that, while judicial notice might be taken of statutes, the same could not be said of statutory instruments.
6. The first respondent ruled that he was not prepared to allow the prosecution to reopen its case. However, the evidence indicates that he expressed surprise that the prosecution had not argued that he could take judicial notice of the Regulations. He referred, in particular, to the case of DPP v. Collins [1981] I.L.R.M. at p. 447. The solicitor acting on behalf of the second respondent then addressed him and quoted from that case, in particular, to the effect that a judge was entitled to take judicial notice of the making of regulations when their making was so notorious, well established, embedded in judicial decisions and susceptible of incontrovertible proof. The first respondent then held that he could in fact take judicial notice of the Regulations in question and his decision to convict was made on that basis.
7. The applicant was sentenced to three months imprisonment. The Court has been informed that, the applicant having served at least part of that sentence, is now on temporary release. The fact that the applicant has a conviction of this nature is, of course, a detriment and, therefore, it cannot be said that the issue is in any way moot.
8. Counsel for the applicant, Mr. Bernard Conden, S.C., who appeared with Mr. Gareth McCormack, B.L., and Ms. Eilis Brennan, B.L., who appeared on behalf of the respondents, agreed that the essential issues to be determined by this Court on this judicial review were as follows:-
(a) Whether the Regulations in question created the offence;
(b) Even if the Regulations did create the offence whether the trial judge was entitled to taken judicial notice of them nonetheless;
(c) Whether,...
To continue reading
Request your trial
-
Kirby v DPP
...to take judicial notice of regulations creating an offence and that this is an issue which goes to jurisdiction. In Kelly v. Dempsey [2010] IEHC 336, at para. 37, MacMenamin J. stated the following: - “The relationship of the Regulation to the charge in the instant case is, therefore, almos......