McNulty v DPP

JudgeMr. Justice Hardiman
Judgment Date18 February 2009
Neutral Citation[2009] IESC 12
CourtSupreme Court
Docket Number[S.C. No. 162 of 2006]
Date18 February 2009

[2009] IESC 12


Hardiman J.

Geoghegan J.

Fennelly J.

McNulty v DPP


Notice Party



BYRNE v GREY 1988 IR 31 1988/4/949

DPP v DUNNE 1994 2 IR 537 1994/9/2621

C (C) & G (P) v IRELAND & ORS 2006 4 IR 1 2005/7/1439 2005 IESC 48






Availability of judicial review - Criminal trial - Evidence - Admissibility - Trial judge possessing necessary power to rule on issue - Whether High Court should intervene by way of judicial review - Whether oppressive to deploy different evidence in second trial - Byrne v Grey [1988] IR 31 and Director of Public Prosecutions v Dunne [1994] 2 IR 537 followed; CC v Ireland [2005] IESC 48, [2006] 4 IR 1 distinguished - Criminal Justice (Miscellaneous Provisions) Act 1997 (No 4), s 10(1) - Applicant's appeal dismissed (162/2006 - SC 18/2/2009) [2009] IESC 12

McNulty v DPP


JUDGMENT 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 15 th 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 20 th 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 8 th, 9 th and 10 th 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 that the applicant was entitled to be acquitted in the trial of the said indictment which took place between the 8 th and 10 th July, 2003."


The applicant's claim to that relief was disputed on a number of grounds of which the most significant are that it is the function of the trial judge in the Circuit Court, and not of the High Court in the exercise of his judicial review jurisdiction, to decide the admissibility of evidence. It was also contended that the matters of which the applicant complains are moot, since the trial before the notice party had concluded.


It is furthermore denied that any error was made in the ruling of Judge White and it is claimed that the warrant was duly issued and is valid.

The correct locus for the determination of these issues.

In his oral and written submissions, the applicant made the following significant concession:

"The appellant accepts that in general judicial review relief is not appropriate for the purposes of seeking rulings from the High Court as to the admissibility of evidence in advance of criminal trials where the trial judge is capable of making all the appropriate determinations of law and fact."


In my view this was a well advised concession. The fact that it was made relieves this court of the necessity to set out the authorities supporting the proposition just summarised: but there can be no doubt of its correctness in view, inter alia, of the decisions in Byrne v. Grey [1988] IR 31 and DPP v. Dunne [1994] 2 IR 537.


The applicant, however, says that this case, exceptionally, is one in which the admissibility of the evidence of the execution of the search warrant and what was found during that exercise must be determined in the High Court or in this Court on appeal, in the exercise of its judicial review jurisdiction. This is so because, the applicant says:

"... the appellant's case is that the respondent has taken unfair advantage of the fact that a jury disagreed following an erroneous ruling by the [presiding judge] in a criminal trial, by serving additional evidence to cure the defect in the proofs of the first trial. As a matter of law, the appellant should have been acquitted...".


The applicant points out that if the matter proceeds to retrial the judge presiding at the retrial will have to determine the constitutionality of the search and the validity of the warrant. He points out that when that judge approaches this issue, there will already be in existence the ruling of His Honour Judge White on the same topic. There will also be the comments and findings of the same issue made by the trial judge, Murphy J, in this case. The applicant says that these rulings would be binding on the judge at the retrial. The findings to the same effect as Judge White, even if not considered to be binding, would clearly be influential.


Thus, the applicant points out that the learned trial judge had held that a written sworn information was sufficient to ground the issuance of a search warrant, notwithstanding the explicit statutory requirement of "hearing evidence on oath" and, secondly that the warrant complied with the statute. The applicant submits that this finding was made in the mistaken belief that the warrant recited that the District Judge was "satisfied as to the grounds for issuing same."

The High Court Judgment.

It is true that the High Court judgment in this case entered into the merits of the issue raised before the learned Circuit Judge at the abortive trial. Having done this, the learned trial judge proceeded at paragraph 11.5 of his judgment (which was its last paragraph) to say:

"The final consideration is whether this is a matter for the learned Circuit Court trial judge or for...

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