Patrick Phipps v Judge Desmond Hogan and DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman
• Judgment Date: 20 December 2007
• Neutral Citation: [2007] IESC 68
• Court: Supreme Court
• Docket Number: 366/04,[S.C. No.
• Date: 20 December 2007

Between:

PATRICK PHIPPS

Applicant/Respondent

and

JUDGE DESMOND HOGAN and THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent/Appellant

Murray C.J

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

366/04

THE SUPREME COURT

Abstract:

Criminal law - Practice and procedure - Application to dismiss charges - Grounds upon which application made - Notice to prosecutor - Whether requirement for person charged with commission of criminal offence to give notice of any ground of defence upon which he intends to rely at any stage of criminal process save where expressly provided by statute - Criminal Procedure Act 1967, s. 4E(1).

the applicant was charged with various offences and brought before the District Court on foot thereof. He was sent forward for trial to the Circuit Criminal Court. By notice of motion, he sought an order pursuant to section 4E(1) of the Criminal Procedure Act 1967, as amended, dismissing all of the charges. It was stated that that application would be grounded on the book of evidence, the nature of the case and the reasons to be offered. The prosecutor contended that the notice of motion was insufficient and that he was entitled to be put on notice of the specific ground upon which the application to dismiss would be based. The Circuit Court Judge ruled that the applicant was so required to give notice to the prosecutor of the grounds upon which the application would be argued in advance of the hearing of the application. The applicant sought to quash that decision by way of judicial review. The High Court refused the relief sought in the application for judicial review. The applicant appealed that decision to the Supreme Court.

Held by the Supreme Court in allowing the appeal and quashing the order of the Circuit Court requiring disclosure that, because an accused was entitled to a trial in due course of law and on basis of the significance of the presumption of innocence in contained in that "due course" principle, he was not obliged to make any form of disclosure and that presumption was strong enough to preclude the interpretation of a statute which did not say so expressly as implying a power to require disclosure on the part of a defendant in a criminal action.

There was no express power in section 4E(1) of the Criminal Procedure Act 1967 to order a defendant applying for a dismiss to give advance notice on the grounds upon which he relied and no statutory obligation on him to give such notice.

Reporter: P.C.

1 JUDGMENT of Mr. Justice Hardiman delivered the 20th day of December, 2007.

2 The appellant, Mr. Phipps is the defendant in a pending criminal case in which he is charged with three offences against various provisions of the Misuse of Drugs Acts. One of these is an offence contrary to s.15A of that Act, as inserted by s.4 of the Criminal Justice Act, 1999.

3 The applicant was brought to the District Court on foot of these charges. The charges were however struck out by that court when the prosecution failed to produce the necessary documents on time. At a later date which does not appear with precision from the papers before the Court, he was re-charged. On this occasion the "Book of Evidence" was duly produced and he was sent forward for trial to the Circuit Criminal Court. The date on which this occurred, likewise, does not appear from the papers.

4 On the 9th July, 2003, the case against the applicant was listed in the Dublin Circuit Criminal Court before his Honour Judge Hogan on foot of a Notice of Motion filed on behalf of the applicant on the 27th June, 2003. This Notice of Motion sought:

5 "An order pursuant to s.4E(1) of the Criminal Procedure Act, 1967 (as inserted by s.9 of the Criminal Justice Act, 1999) dismissing all of the charges against the accused on Bill of Indictment No. DU60/02."

6 It was stated that the application "will be grounded on the Book of Evidence served on the accused, the nature of the case and the reasons to be offered."

7 On the 3rd July, 2003 in the Circuit Court it was submitted by prosecuting counsel that the Notice of Motion was insufficient and that the prosecutor was entitled to be put on notice of the specific ground upon which the application to dismiss would be based. There does not appear to have been any formal order of the Circuit Court drawn up in respect of the proceedings on that day but the applicant and respondent in the present proceedings seem to be at one that, as the applicant puts it, the learned judge "ruled that I was required to give notice to [the Director of Public Prosecutions] of the grounds upon which the application would be argued in advance of the hearing of the application". In the affidavit of Una Duggans sworn on behalf of the prosecutor, it is said that the learned judge "held that this was a new procedure which did not entitle the defence to ambushthe prosecution as in the course of a criminal trial and consequently the grounds for application should be set down."

8 The applicants subsequently sought judicial review of this decision. He was granted leave to do so by the High Court (O'Donovan J.) by order dated the 20th October, 2003 on the grounds that:

• "(1) There is no requirement in law for a person charged with the commission of a criminal offence to give notice of any ground of defence upon which he intends to rely at any stage of the criminal process save where expressly provided by statute.

• (2) That the provisions of s.4E of the Criminal Procedure Act, 1967, must be strictly construed since it is a criminal statute and the Section makes no provision for notice of the kind which has been required in these proceedings.

• (3) That the first-named respondent acted ultra vires in requiring the applicant to give notice to the DPP of the grounds upon which he intended to rely in support of the application that he wished to make pursuant to the provision of s.4E(1) of the Act of the 1967 Act."

9 Statutory provision.

10 The said s.4E, insofar as relevant, provides as follows:

• (1) At any time after the accused is sent forward for trial, the accused may apply to the trial court to dismiss one or more of the charges against the accused.

• (2) Notice of an application under subsection (1) shall be given to the prosecutor not less than fourteen days before the date on which the application is due to be heard.

• (3) The trial court may, in the interests of justice, determine that less than 14 days notice of an application under subsection (1) may be given to the prosecutor.

• (4) If it appears to the trial court that there is not a sufficient case to put the accused on trial for any charge to which the application relates, the court shall dismiss the charge.

• (5)(a) Oral evidence may be given on an application under subsection (1) only if it appears to the trial court that such evidence is required in the interests of justice.

• (7) Where a charge is dismissed by the trial Court under subsection (4), the prosecutor may, within 21 days after the dismissal date, appeal against the dismissal t the Court of Criminal Appeal.

• (8) On an appeal under subsection (7), the Court of Criminal Appeal may

  • (a) affirm the decision of the trial court, or

  • (b) quash the decision of the trial court, in which case the trial of the accused may proceed as if the charge had never been dismissed."

11 Legislative background.

12 The Act of 1999 abolished provisions of the Criminal Procedure Act, 1967 which provided for a preliminary examination of indictable charges in the District Court. Up to the passing of the 1999 Act it was possible for a defendant to have the charges against him dismissed in the District Court if that Court was not satisfied that there was a sufficient case to put him on trial. Although that procedure has been abolished, the Act of 1999 conferred certain compensating entitlements on defendants, which were however required to be exercised in the court of trial rather than in the District Court. The right to apply for the dismissal of the charges pursuant to s.4E is one such entitlement. These are important rights. Quite clearly (to speak only of the right to apply to have a charge dismissed) if there is a single point which may avail the defendant to the extent of fatally undermining the charges against him, it is a great advantage to have this determined before the trial itself. Disposal in this way represents a major saving of time and expense to both sides, avoids inconvenience to witnesses and jury persons, brings a rapid end to the defendant's anxieties (which in this case must be considerable since one of the

13 charges the applicant is facing carries a mandatory minimum sentence of ten years imprisonment) and brings about a resolution of the action between the prosecutor and the defendant at the earliest possible time, freeing up Court time for other cases.

14 There is, accordingly, no doubt but that the applicant was entitled to seek the relief which he sought from the learned Circuit Court judge. The question is whether the latter was entitled to require him to give advance notice of the grounds upon which the application would be urged.

15 The applicant's rights arise from the statutory provision already quoted. This provision requires that the prosecutor be put on notice of the defendant's application to dismiss but does not itself require that notice of the grounds of this application be given. The statute does not of course exclude this possibility either. The applicant's case is put in this way: he has an undoubted right to have his motion to dismiss determined and there is no statutory authority for the proposition that he has to give advance notice of the grounds of his application. The respondent, however, argues that the requirement to give notice of the application would be "meaningless" unless it (that is, the notice) incorporated the grounds of...