Phipps -v- Judge Hogan, [2007] IESC 68 (2007)

Docket Number:366/2004
Party Name:Phipps, Judge Hogan
Judge:Hardiman J.


Murray C.J

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.


PATRICK PHIPPSApplicant/Respondentand



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

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.

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.

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: "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." 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."

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 ambush the prosecution as in the course of a criminal trial and consequently the grounds for application should be set down."

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." Statutory provision.

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...

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