Phipps v Judge Desmond Hogan and DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Quirke
• Judgment Date: 27 May 2004
• Neutral Citation: 2004 WJSC-HC 9706
• Date: 27 May 2004
• Court: High Court
• Docket Number: HC 204/04

2004 WJSC-HC 9706

THE HIGH COURT

HC 204/04

[No. 739 J.R./2003]

PHIPPS v. JUDGE HOGAN & DPP

JUDICIAL REVIEW

BETWEEN

PATRICK PHIPPS

APPLICANT

AND

JUDGE DESMOND HOGAN AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

Citations:

CRIMINAL PROCEDURE ACT 1967 S4(E)(1)

CRIMINAL PROCEDURE ACT 1967 S4(E)

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997

CRIMINAL JUSTICE ACT 1999 S9

RYAN & MAGEE IRISH CRIMINAL PROCESS

DPP V WINDLE 2000 1 ILRM 75

HUGHES V GARAVAN & DPP 2004 1 ILRM 401 2003/27/6251

CRIMINAL PROCEDURE ACT 1967 PART II

CRIMINAL JUSTICE ACT 1999 PART III

CRIMINAL PROCEDURE ACT 1967 S4

CRIMINAL PROCEDURE ACT 1967 S7(5)

CONSTITUTION ART 38.1

ASHMORE V LLOYDS 1992 1 WLR 446

CRIMINAL PROCEDURE ACT 1967 S4(E)(5)

CRIMINAL PROCEDURE ACT 1967 S4(E)(3)

CRIMINAL PROCEDURE ACT 1967 S4(E)(6)

CRIMINAL PROCEDURE ACT 1967 S4(E)(A)

CRIMINAL PROCEDURE ACT 1967 S4(E)(B)

Abstract:

Judicial review - Dismissal of criminal charges - Preliminary examination - Sufficiency of evidence - Drugs offence - Whether a trial judge dealing with an application pursuant to section 4E of the 1967 Act was permitted to require the applicant to give notice to the DPP of the grounds upon which he intended to rely in support of his application - Criminal Procedure Act, 1967 - Misuse of Drugs Act, 1997 - Criminal Justice Act, 1999

Facts: The applicant was charged with the commission of criminal offences contrary to the provisions of the Misuse of Drugs Act, 1997 and was returned for trial to the Dublin Circuit Criminal Court. Subsequently, on 27 June, 2003 the applicant sought to dismiss the charges preferred against him pursuant to the provisions of section 4E(1) of the Criminal Procedure Act, 1967, as inserted by section 9 of the Criminal Justice Act, 1999 on the basis that the second named respondent did not have a sufficient case to try the applicant for the aforementioned charges. On 9 July, 2003 the first named respondent directed the applicant to provide notice to the second named respondent of the grounds upon which he would rely in support of is application that the charges should be dismissed. Consequently, on 10 October, 2003 the applicant sought and obtained leave to seek relief by way of judicial review by way of an order of certiorari quashing the said order of the first named respondent on the grounds that there was no requirement in law for a person charged with a criminal offence to give notice of any ground of defence upon which he intended to rely at any stage of the criminal process save where expressly provided by statute. The applicant submitted that the court was required to construe section 4E of the 1967 Act strictly and that the section did not make any provision for the kind of notice required to be given in those proceedings. Furthermore, the applicant contended that the first named respondent acted ultra vires in requiring him to give notice to the DPP of the grounds upon which he intended to rely in support of his application pursuant to section 4E(1) of the 1967 Act.

Held by Quirke J. in refusing the relief sought:

1. That the procedure for a preliminary examination was abolished by the enactment of Part III of the 1999 Act. The new statutory procedure provided that a person accused of an indictable offence was required to be sent forward for trial to the court of appropriate jurisdiction and he then had the right to apply to the trial court to dismiss one or more of the charges preferred against him on the grounds that the evidence disclosed was insufficient to put him on trial in respect of the charge to which the application related.

2. That the new procedure did not require the accused person to prove that the evidence upon which the State intended to rely in support of the charge preferred against him was insufficient to establish a prima facie case. The onus of proof of the commission of a criminal offence rested with the prosecution and was never transferred to the accused person. The prosecutor was required in response to an application by the accused person pursuant to section 4E(1) of the 1967 Act to satisfy the trial court that the evidence upon which the state intended to rely was sufficient to put the accused on trial for the charge to which the application related.

3. That a person accused of the commission of a criminal offence was not entitled to ambush the prosecution at any stage within the criminal process, although an accused was entitled to make an application at the close of the prosecution case that the prosecution failed to adduce sufficient evidence to prove beyond a reasonable doubt that the accused was guilty of the charge preferred against him.

4. That a trial judge who was responsible for the trial of a person charged with the commission of a criminal offence was vested with the discretion to grant adjournments at the preliminary stage in a criminal process in order to enable the parties or their legal advisors to seek instructions or to make appropriate enquiries or to seek assistance on points of law. Accordingly, a trial judge was entitled to exercise that discretion during the course of an application made pursuant to section 4E of the 1967 Act.

5. That an accused person could not be required to disclose the nature or detail of his defence unless and until the prosecution had at the trial made out a prima facie case against the accused by way of evidence. However a trial judge was entitled to direct an applicant under section 4E to notify the court and the State of the grounds upon which he intended to rely in support of his application. Notification of such grounds may have resulted in the avoidance of the necessity for the trial judge to adjourn the application pursuant to subsection 6(b) of Section 4E in order to enable the parties to adduce oral evidence or serve documents where the interests of justice so required.

6. That although it was virtually inevitable that an unsuccessful applicant pursuant to section 4E would have disclosed to the prosecution some aspects of the defence which would be relied upon at the trial, the accused person was not required to make the application pursuant to section 4E. The accused person was not pressurised into making the application, he would have made a carefully informed decision to make such an application. Furthermore, the applicant retained the right to require the State to prove its case on the criminal standard of proof at the trial.

Reporter: L.O’S.

1 27th day of MAY2004. Mr. Justice Quirke

Mr. Justice Quirke

2 By order of the High Court (O'Donovan J.) dated 20^th October, 2003, the applicant was given leave to seek relief by way of judicial review by way of an order of certiorari quashing an order made by the first named respondent on 9^th July, 2003, whereby the first named respondent directed the applicant to give notice to the second named respondent of the grounds to be relied by the applicant in support of an application to be made on his behalf pursuant to the provisions of s. 4E(1) of the Criminal Procedure Act,1967.

3 The grounds relied upon in support of this application include the following:

4 1. That 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.

5 2. That the provisions of s. 4E of the Criminal Procedure Act of1967must be construed strictly since it is a criminal statute and the section makes no provision for notice of the kind which has been required in these proceedings.

6 3. That the first named respondent actedultra 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 which he wished to make pursuant to the provisions so s. 4 E(1) of the 1967 Act.

7 1. The applicant has been charged with the commission of criminal offences contrary to the provisions of the Misuse of Drugs Act 1997 and has been returned for trial to the Dublin Circuit Criminal Court. He has been served with a Book of Evidence containing details of the evidence which will be adduced in support of the charges preferred against him.

8 2. On 27^th June, 2003, a Notice of Motion was filed on his behalf seeking to dismiss the charges preferred against him pursuant to the provisions of s. 4 E(1) of the Criminal Procedure Act,1967as inserted by s. 9 of the Criminal Justice Act1999.

9 3. Having heard an application from Counsel on behalf of the second named respondent on 3^rd July, 2003, and what was said by Counsel on behalf of both parties the first named respondent on 9^th July, 2003, directed that the applicant should give notice to the second named respondent of the grounds upon which the applicant would rely in support of his application pursuant to s. 4 E(1) of the 1967 Act (that the charges preferred against the applicant should be dismissed).

10 The applicant on 10^th October, 2003, sought and obtained leave to seek the relief which he seeks herein.

11 Section 4(E) of the Criminal Procedure Act,1967(as inserted by s. 9 of the Criminal Justice Act,1999) provides as follows:

12 (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.

13 (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.

14 (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.

15 (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...