McNulty -v- DPP, [2009] IESC 12 (2009)

Docket Number:162/06
Party Name:McNulty, DPP
Judge:Hardiman J.


Hardiman J. 162/06

Geoghegan J.

Fennelly J.





HIS HONOUR JUDGE MICHAEL WHITE Notice PartyJUDGMENT of Mr. Justice Hardiman delivered the 18th day of February, 2009.

This is an appeal from the judgment and order of the High Court (Murphy J.) of the 15th March, 2006 whereby he refused the applicant the relief sought.

The applicant was the defendant in criminal proceedings in which he was charged with an offence of possession of a controlled drug and possession of the said drug for supply, contrary to Sections 3 and 15 of the Misuse of Drugs Act, 1977. More particularly, the allegation was that on the 20th July, 2002, the applicant had in his possession the controlled drug MDMA and had it in his possession for the purpose of selling or otherwise supply it to another.

It appears that in July 2002 the applicant came to the attention of the gardaí in relation to a quite different and very serious offence. Since the applicant was subsequently acquitted by a unanimous verdict of that offence it is unnecessary to particularise it here. However in the course of enquiries into that separate offence the gardaí made certain observations in the applicant's apartment as a result of which they applied to the District Court for a warrant to search the premises.

The applicant was tried on the drug charges in the Dublin Circuit Criminal Court before his Honour Judge White and a jury on the 8th, 9th and 10th of July, 2003. It was made clear on the applicant's behalf that the prosecution were on full proof of every aspect and in particular that the legality of the search on foot of the warrant which had been obtained in the District Court was the subject of challenge. This challenge gave rise to a hearing in the absence of the jury, commonly called a voir dire. At the end of this procedure the learned trial judge ruled in favour of the admissibility of the evidence. The evidence continued to a conclusion but the jury were unable to reach a verdict and accordingly disagreed. The prosecution have indicated that they propose to proceed to a retrial.

After the conclusion of the trial before Judge White, the prosecutors served notices of additional evidence upon the applicant. It is these, specifically, that triggered the present proceedings. The additional evidence was designed to fill certain gaps in the evidence, according to the applicant. It included:

(a) A statement from the garda who had attended the District Court seeking the warrant to the effect that he had in fact given oral evidence grounding the issue of the warrant to the learned District Judge who issued it.

(b) A statement from one of the applicant's friends denying, as has been alleged, that he had brought the drugs to the applicant's dwelling.

The nub of the applicant's case is that, in all the circumstances, the respondent has taken unfair advantage of the fact that the jury disagreed following what he says was an erroneous ruling by His Honour Judge White - by serving the additional evidence to cure the defects in proof at the first trial.

There are two reasons why the applicant says that this constitutes an abuse of process: in the first place the appellant should have been acquitted if the learned Circuit Judge had decided the legal issues correctly. In the second place, if the applicant had been convicted the conviction "would have been quashed with no retrial": it is inequitable that he is now in a worse position as a result of the fact that instead of convicting him the jury disagreed.

The only two of the points urged on the learned Circuit Judge which are relevant to the present applicant are, these. Firstly, it was contended that, having regard to the relevant statutory provisions, the valid issue of a warrant would have required the learned District Judge to hear oral evidence from the applicant for the warrant and that there was absolutely no evidence at the trial that he had done so. There was evidence that he had been presented by a member of the Garda Síochána with a written document described as a sworn information, but no evidence that any oral evidence was given. Secondly, it was said that the warrant as issued did not establish that the learned District Judge had been "satisfied" of the matters which the statute required him to be satisfied of, but only that "it appeared to him", as the result of the information on oath of a named member of the Garda Síochána "that there are reasonable grounds for suspecting that evidence of, or relating to the commission of an offence… was to be found in the applicant's premises."

The present proceedings.

In these proceedings the applicant seeks judicial review by way of prohibition, or in the alternative by way of injunction, restraining the prosecutor from pursuing the prosecution against the applicant.

Secondly, he seeks:"Judicial review by way of a declaration...

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