Walsh v Judge Brown

JurisdictionIreland
JudgeMr. Justice O'Neill
Judgment Date16 March 2007
Neutral Citation[2007] IEHC 325,[2007] IEHC 96
CourtHigh Court
Docket Number[No. 22 JR/2007]
Date16 March 2007
WALSH v JUDGE BROWN & DPP
JUDICIAL REVIEW

BETWEEN

FRANK WALSH
APPLICANT

AND

JUDGE GEOFFREY BROWN
RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS
NOTICE PARTY

[2007] IEHC 96

[No. 22 JR/2007]

THE HIGH COURT

Abstract:

Criminal law - Judicial review - Certiorari - Quash convictions - Drugs offences -Autrefois acquit - Autrefois convict - Excess of jurisdiction - Whether court had discretion to remit to District Court

The applicant sought to quash drugs offence convictions that he had received in the District Court. The DPP sought to remit the matter to the District Court. The issue arose as to whether the Court had discretion to remit the mater or whether autrefois convict applied where the District Court had acted outside its jurisdiction.

Held by O’ Neill J. quashing the conviction and in remitting the matter to the District Court, that the applicant had pleaded guilty to the offences and no prejudice ensued.

Reporter: E.F

MISUSE OF DRUGS ACT 1977 S3

MISUSE OF DRUGS ACT 1977 S15

RSC O.26 r4

CRIMINAL JUSTICE ACT 1984 S13

SWEENEY v BROPHY 1993 2 IR 202

RSC O. 84 r (4)

SHEEHAN v O'REILLY & GOVERNOR OF LIMERICK PRISON 1993 2 IR 81 1993 ILRM 427 1992/13/4201

Mr. Justice O'Neill
1

In this case the applicant obtained leave of this court (Peart J.) on the 15th January, 2007 to apply by way of judicial review for orders ofcertiorari to quash three orders of the respondent whereby the applicant was convicted of offences pursuant to s. 3 and s. 15 of the Misuse of Drugs Act, 1977. The matter coming before the court, the respondent or notice party, did not oppose the making of orders of certiorari as sought, but the notice party sought an order pursuant to O. 26(4) of the Rules of the Superior Court remitting the matter to the District Court so that it could be reconsidered and a decision reached in accordance with the findings of this court. This application was resisted by the applicant.

2

The facts relevant to this matter are as follows.

3

The applicant was before the District Court in Ballaghadreen on the 26th October, 2006 on foot of four summonses.

4

The first of these alleged an offence to the affect that on the 10th October, 2004 at a place unknown in Castlerea, Co. Roscommon the applicant was in possession of a controlled drug to wit cannabis resin for the purposes of supply. The second offence alleged was that on the 10th October, 2004 at a place unknown in Castlerea, Co. Roscommon the applicant was in possession of a controlled drug to wit cannabis resin. The third offence alleged was that on the 30th October, 2004 at Loughlynn, that the applicant was in possession of a controlled drug to wit cannabis resin for the purposes of supply. The applicant also was facing a charge of failing to appear contrary to s. 13 of The Criminal Justice Act,1984. The following paragraphs, namely paragraphs 5,6, 7, 8, 9 and 10 of the affidavit of Alan Gannon a solicitor for the applicant describes what happened in the District Court on the 26th October, 2006.

5

2 "(5) I say that prior to court and acting on my client's instructions I indicated to the prosecuting Garda, Sergeant Clesham that the applicant would be willing to plead guilty and that in return it was requested that some of the charges would be withdrawn. Those "negotiations" were successful and it was agreed with the prosecution that one of the s. 15 supply charges and the s. 13 failing to appear charge would be withdrawn. When the matter was called it was indicated to the court that only three charges would be proceeding, being one of s. 15 charge of possession for the purpose of supply and two s. 3 possession charges.

6

(6) I say that Sergeant Clesham gave evidence and, in the normal way on a plea of guilty, gave a précis of the prosecution case. What follows is not intended to be an exhaustive summary of the evidence given, but consists of a reasonably full account of the evidence offered by the prosecution. Sergeant Clesham stated that in October he was called to the home of the applicant's son who is a 14 year old boy who was living with his mother. The Sergeant stated that he found a small amount of cannabis resin. He stated that the boy made a statement saying his father, Mr. Walsh had given him €100.00 worth of cannabis and that €50.00 worth of it was for the boy's birthday. At the end of October the Sergeant found out Mr. Walsh was coming to Loughlynn to visit his son and the Gardaí set up a check point in the village before stopping a transit van driven by the applicant. The vehicle was subsequently taken to Castlerea Garda Station where it was searched. The Sergeant stated that bags of cement were found in the van and when the Sergeant searched them he found a lump of cannabis wrapped in paper and another packed into his sock. The Sergeant stated that he was satisfied the cannabis was to be supplied to the applicant's son.

7

(7) I subsequently called the applicant to give evidence. My purpose in doing so was so that the applicant could apologise to the court and also explain the context in which he provided cannabis to his son. I led the applicant through his evidence and covered such matters as where he was working, how many children he had, the relationship he had with the children and their mother, where they were living, the contact he had with the children and his extreme ill judgment in providing cannabis to his son. The applicant explained from the witness box that he provided cannabis to his son because he believed that his son was in danger from owing money and drugs to the people who had given him drugs previously. He stated that he simply gave his son drugs to get out of trouble. He now accepted that that was foolish and wrong and that he should have gone to the Gardaí. I was in the course of eliciting from the applicant an undertaking that he would not have contact with his son when the respondent interjected and indicated that he would ensure that the applicant would have no contact whatever with his son. I say that the respondent effectively took over at that stage and there was no more evidence heard from the accused. The first respondent described the applicant as follows:-

"You are a scumbag."
...

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