McNulty v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Roderick Murphy
• Judgment Date: 15 March 2006
• Neutral Citation: [2006] IEHC 74
• Court: High Court
• Date: 15 March 2006

[2006] IEHC 74

THE HIGH COURT

[No. 424 JR/2004]

MCNULTY v DPP & JUDGE WHITE

JUDICIAL REVIEW

BETWEEN

FERGAL McNULTY

APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

HIS HONOUR JUDGE MICHAEL WHITE

NOTICE PARTY

MISUSE OF DRUGS ACT 1977 S3

MISUSE OF DRUGS ACT 1977 S15

MISUSE OF DRUGS REGS 1988 SI 328/1988

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

MISUSE OF DRUGS ACT 1977 S5

MISUSE OF DRUGS ACT 1977 S27

MISUSE OF DRUGS ACT 1984 S6

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S10

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S10(1)

DPP v KEMMY 1980 IR 160

SIMPLE IMPORTS LTD & SEVEN IMPORTS LTD v REVENUE COMMISSIONERS & ORS 2000 2 IR 243

CRIMINAL LAW ACT 1976 S9

AG, PEOPLE v O'BRIEN 1965 IR 142

DPP v BALFE 1998 4 IR 50

DPP v OWENS 1999 2 IR 16

BYRNE v GREY & IRELAND & AG 1988 IR 31

DPP, PEOPLE v BYRNE 1987 IR 363

O'CALLAGHAN, STATE v O HUAGHAIGH 1977 IR 42

EVISTON v DPP 2002 3 IR 260 2002 1 ILRM 134

MURPHY v DPP 1989 ILRM 71

MCCORMACK, STATE v CURRAN 1987 ILRM 225

MCLOUGHLIN v DPP UNREP SUPREME 8.11.2001 2003/41/9900

BLANCHFIELD v HARTNETT 2002 3 IR 207 2002 2 ILRM 435

WALSH CRIMINAL PROCEDURE 3ED PARA 8-09

MISUSE OF DRUGS ACT 1977 S26

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S10(1)(c)

CRIMINAL LAW ACT 1976 S9(1)

CRIMINAL LAW

Warrant

Search warrant - Risk of unfair trial -Drugs offences - Trial - Whether judicial review correct remedy - Blanchfield v Hartnett [2002] 3 IR 207 and McLoughlin v DPP (Unrep, SC, 8/11/2001) followed -Criminal Justice (Miscellaneous Provisions) Act 1997 (No 4) - Prohibition refused (2004/424JR - Murphy J - 15/3/2006)[2006] IEHC 74 McNulty v DPP

Facts: section 10(1) of the Criminal Justice (Miscellaneous Provisions) Act 1997 provides that a District Judge “on hearing evidence on oath given by a [Garda]…may, if…satisfied that there are reasonable grounds for suspecting that evidence of, or relating to the commission of [a relevant crime]” issue a search warrant. The prosecuting authorities had obtained a warrant on foot of sworn information to the District Court rather than on oral evidence to search the applicant’s home and found drugs therein whilst conducting the search. The applicant alleged that the evidence obtained thereby had been improperly procured as the warrant was bad on its face in that it failed to show jurisdiction for its issuance and purported to show such jurisdiction on the basis of sworn information as opposed to the hearing of oral evidence and on the basis of existence of reasonable grounds for the requisite suspicion “appeared” to the District Court as opposed to such judge being satisfied as to the existence of such. The applicant applied for an order of prohibition restraining the further prosecution of the offences.

Held by Mr Justice Murphy in refusing the relief sought that the statutory power of entry, search and seizure were exercisable only on foot of a warrant. Sworn information was necessary in relation to the issuance of a search warrant but there was no requirement that the sworn information was required to be shown in relation to the exercise of those powers. The warrant complied with the provisions of section 10(1) of the Act of 1997 as it was clear from its face that the District Judge was satisfied that the grounds set out for its issuance on foot of sworn information were reasonable. There was no requirement that the validity or proof of a warrant required evidence of the formal sworn information. It was sufficient that the matter was sworn before a District Judge who was satisfied that the grounds were reasonable. The scope of judicial review whereby the High Court could interfere in an imminent criminal trial was limited and if there was a question of any possibility of evidence being admitted, the trial judge should be entrusted with the task of ruling on that in general and was not a matter for judicial review.

Reporter: P.C.

1 JUDGMENT of Mr. Justice Roderick Murphydelivered on the 15th day of March, 2006

1. Application

2 By notice of motion seeking judicial review dated 15th June, 2004, the applicant sought an order of prohibition or injunction prohibiting or restraining the respondent (D.P.P.) from pursuing the prosecution of the applicant as set out in indictment bill no. 203/03 and for a declaration that the applicant was entitled to be acquitted in the trial of the said indictment which took place between 8th and 10th July, 2003 on the basis of the amended statement grounding the application for judicial review and the affidavit of Robert Purcell, solicitor for the applicant as sworn 17th May, 2004. Peart J. had granted the applicant leave to proceed on 20th May, 2004.

3 The applicant had been charged with the offences of possession simpliciter and possession for supply of a controlled drug, MDMA, contrary to ss. 3 and 15 of the Misuse of Drugs Act, 1977.

4 The particulars of the offence was that the applicant, on 20th July, 2002, had in his possession a controlled drug 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 (Count 1) and that on the same date he had in his possession the same controlled drug contrary to ss. 3 and 27 of the Misuse of Drugs Act, 1977 as amended by s. 6 of the Misuse of Drugs Act, 1984.

2. Application to the Circuit Criminal Court

5 At the trial, on 8th July, 2003, Mr. Ó Lideadha, counsel for the applicant, had put the prosecution on proof in respect of all matters grounding the admissibility of evidence of the alleged controlled drugs and submitted that the search was unlawful and that the main issue was in relation to the warrant.

6 Mr. Foley, for the prosecution, examined Garda Fionnuala Monaghan, who said that she together with Detective Sergeant O'Sullivan, Detective Gardaí Murray and Carney and Garda Maria Murphy went to the applicant's flat with a warrant issued under s. 10 of the Criminal Justice (Miscellaneous Provisions) Act, 1997 and, having shown the warrant to the applicant, were admitted into the flat and proceeded to search it, finding a number of white tablets in a cigarette box, which he suspected to be MDMA ecstasy tablets.

7 Inspector Timothy McCarthy was aware of the investigation. He went before Judge Dunne of the District Court and made an application for a warrant and information. He presented to the Court signed information and a warrant was issued in respect of the flat which he identified. The warrant was handed over to Detective Sergeant O'Sullivan to execute.

8 In the absence of the jury, Detective Sergeant O'Sullivan stated that he had received the warrant from Inspector McCarthy, which he identified. He produced the warrant to the applicant and informed him that his officers would be conducting a search of the dwelling. His colleague, Garda Murray, arrested the applicant who was detained in Mountjoy Garda Station.

9 Mr. Ó Lideadha made a submission to the notice party in relation to the statutory provisions grounding the issue of the warrant and sought a ruling as to the admissibility of evidence subsequent to the entry and search.

3. The Warrant

10 Section 10(1) of the Criminal Justice (Miscellaneous Provisions) Act, 1997 (the Act of 1997) provides that a warrant may be issued under the said section by a judge of the District Court "on hearing evidence on oath", "if he or she is satisfied that there are reasonable grounds for suspecting that evidence of, or relating to the commission of" certain specified offences is to be found at a particular place.

11 The warrant to search recites that:-

"WHEREAS it appears to me as a result of information on oath of Inspector Timothy McCarthy…that there are reasonable grounds for suspecting that evidence of, or relating to the commission of an offence stated in the warrant (which offence does not include that of possession for use or supply of any drug)."

12 The warrant to search was duly signed by one of the judges of the District Court, assigned to the district.

13 Counsel submitted an appearance ("WHEREAS it appears to me") is not equivalent to "I am satisfied" and that information on oath is not evidence on oath.

14 The form entitled Information for a Search Warrant sworn by Inspector Timothy McCarthy on 20th July, 2002, states as follows:-

"I have reasonable grounds for suspecting that evidence of or relating to the commission of an offence referred to in subs. (1) of s. 10 of the 1997 Act, to wit, (certain items not including any drugs) is to be found in a place, namely (the flat of the applicant)."

15 The basis for such grounds was stated to be the investigation of a complaint of rape at the premises on 17th July, 2002.

16 The document contains the following concluding paragraph:-

"Sworn before me on the 20th day of July, 2002, at () and I am satisfied the grounds set out are reasonable."

17 Signed: (the same judge of the District Court)."

4. Statement of Inspector Timothy McCarthy

18 In a statement made on 26th January, 2004, Inspector McCarthy had formed the opinion that it was necessary to make an application for a warrant to search the flat and believed there was evidence to be found in relation to the commission of the (rape) offence at that address. He had instructed Detective Sergeant O'Sullivan to draft an information search warrant and a warrant to search which was done in his presence. He had checked the contents and found the information to be correct and signed the information to search. On Saturday, 20th July, 2002, at a sitting of Dublin Metropolitan District Court he swore an information for a search warrant before Judge Dunne by taking the oath and swearing that he would truly answer all questions put to him touching on the application. He outlined to Judge Dunne...