Supreme Court allows appeal permitting trial court to rule search warrant invalid under section 4E of Criminal Procedure Act.

THE SUPREME COURT

Murray CJ.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

JUDICIAL REVIEW

[2004] No. 551 JR

BETWEEN

EAMON CRUISE

APPLICANT

AND

JUDGE FRANK O’DONNELL

AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

JUDGMENT of MR. JUSTICE FENNELLY delivered the 20th day of December 2007

1. This appellant, who is charged with a number of serious drugs offences, wants to have the Circuit Court determine in advance of

his proposed trial whether a search warrant which was used to obtain the evidence against him was valid and to order that the

charges be dismissed. Whether this can be done depends on the interpretation of provisions of section 9 of the Criminal Justice Act,

1999, which inserted a new section 4E into the Criminal Procedure Act, 1967 (“the Act of 1967”). That Act ended the preliminary

examination procedure in the District Court. The trial Court, rather than the District Court, may now be asked to decide whether there

is a sufficient case to answer. The appellant failed in his application before the first-named respondent.

2. The Appellant brought the matter before the High Court in an application for Judicial Review. His application was dismissed by

Quirke J in a judgment delivered on 8th December 2004.

Procedural history

3. Seven charges have been laid against the Appellant. They all relate to alleged possession of controlled drugs at premises in

Clondalkin, Dublin 12 on 20th June 2002. One charge alleges possession for sale or supply of drugs to a value of €13,000 or more

contrary to section 15A (as inserted by section 4 of the Criminal Justice Act, 1999) and section 27 (as amended by section 5 of the

Criminal Justice Act, 1999) of the Misuse of Drugs Act, 1977. I will refer to this as the section 15A charge.

4. The Appellant was charged on 18th April 2003 before the District Court. He was duly served with a book of evidence and returned

for trial to the Dublin Circuit Criminal Court, where his case has been adjourned from time to time.

5. Counsel for the Appellant applied on 30th March 2004 to have the case against him dismissed pursuant to section 4E of the Act of

1967. According to his affidavit in the present proceedings, the Appellant contended:

“The Book of evidence fails to disclose any, or any admissible evidence to the effect that the drugs the subject-matter of

the within prosecution, were lawfully seized by way of lawful authority by the investigating members of An Garda

Siochana.

1) The Book of evidence herein fails to disclose any admissible evidence against the accused.

2) The search warrant requested by and issued to the prosecuting Garda failed to include on its face the premises

sought to be searched by them and was therefore invalid.”

6. The application was heard before the first-named respondent. Counsel for the appellant submitted that the previous procedure had

been radically altered by the Act of 1999 and that the judge at the court of trial now has jurisdiction to determine the validity of a

search warrant in an application by an accused person to have charges against him dismissed. According to the affidavit, counsel also

submitted that “the procedure expanded the previous legislation by introducing the possibility of adducing oral evidence,” and that

the trial court was “entitled to embark on the hearing of an application to dismiss where a point of law or fact is raised by an accused

which if successful, would dispense with the requirement of a jury to determine the guilt or innocence of an accused.” (emphasis

added).

7. Having heard arguments which largely prefigure those advanced in the High Court and before this Court, the first-named

respondent ruled on 11th May 2004 that the validity of search warrants was to be determined at the trial and could not be the

subject-matter of an application to dismiss pursuant to section 4E of the Act of 1967.

8. The Appellant obtained leave from the High Court (McKechnie J) to apply for judicial review of the decision of the first-named

respondent. The central ground for the application was that the first-named respondent was wrong in holding that section 4E

precluded a determination as to the validity of a search warrant.

9. Quirke J dismissed the application for judicial review in a judgment delivered on 8th December 2004. He held that section 4E was

“intended to enable an accuse person to make an application to have charges preferred against him dismissed where the evidence

upon which the State intends to rely is so weak that there is no probable cause to believe that the accused might be guilty.”

He continued:

“It was clearly not intended that applicants pursuant to s. 4E would be entitled to challenge evidence disclosed in the

Book of Evidence on grounds of credibility or weight. I am satisfied also that it was not intended that it should be

challenged on grounds of admissibility. Such applicants (and the court hearing the applications) should take the State's

case as disclosed in the Book of Evidence at its highest point.

The admissibility of particular evidence will invariably require to be determined by the trial judge during a criminal trial. In

determining admissibility the trial judge may require to hear evidence by way of a voire dire or to exercise discretion

judicially as to the admission of particular evidence. The validity of a warrant may depend upon the state of mind of the

person applying for or issuing the warrant. Enquiry into such matters cannot be properly conducted in isolation from all of

the other evidence to be adduced in a criminal trial. It is undesirable that specific findings of fact or law should be made

in advance of a criminal trial.

In hearing an application pursuant to s. 4E of the 1967 Act (as amended) the trial court should consider the evidence

upon which the State intends to rely on the assumption that it will be adduced lawfully and properly and as outlined in the

Book of Evidence. The court must then decide whether, if so adduced, it discloses a 'prima facie' case against the

accused.

If so, the accused should be sent forward for trial. If not then the accused person should be discharged.”

Statutory provisions

10. Part III of the Act of 1999 abolished the former system of preliminary examination in the District Court, as it had existed since the

passing of the Act of 1967. Under the amended statutory regime, the District Court sends an accused person forward for trial to the

appropriate court of jurisdiction. Section 4A of the Act of 1967, inserted by section 9 of the Act of 1999, provides that where “an

accused person is before the District Court charged with an indictable offence, the Court shall send the accused forward for trial to

the court before which he is to stand trial (the trial court)……”

Section 4E, inserted by the same section needs to be cited in its entirety:

4E.—(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 14 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.

(b) In paragraph (a) ‘oral evidence’ includes—

(i) any evidence given through a live television link pursuant to Part III of the Criminal Evidence Act,

1992 , or section 39 of the Criminal Justice Act, 1999, or

(ii) a videorecording of any evidence given through a live television link pursuant to that Part or section

in proceedings under section 4F.

(6) Where the trial court is satisfied that it is in the interests of justice that any document required under this Part to be

served on the accused or his solicitor be served at the hearing of an application under this section—

(a) the prosecutor shall serve the document on the accused or his solicitor, if any, at the hearing, and

(b) the court may, if it considers it appropriate to do so, adjourn the hearing for that purpose.

(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 to 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. It is appropriate, at this point, to recall that section 5 of the Act of 1967, repealed by the Act of 1999, had provided that, where

an accused person was charged before the District Court with an indictable offence, the judge was to “conduct a preliminary

examination of the charge in accordance with the provisions” of the relevant part of the Act. Section 8(1) of that Act provided:

“If the justice is of opinion that there is a sufficient case to put the accused on trial for the offence with which he has

been charged, he shall send him forward for trial.”

12. Subsections (2) and (4) provided, respectively, for cases where “some indictable offence other than that charged” and cases

where only a summary offence is disclosed. Subsection (5) provided:

“If none of the foregoing provisions applies, the justice shall order the accused to be discharged as to the offence under

examination.”

Submissions for Appellant

13. Mr Michael O’Higgins, Senior Counsel, informed the Court that the Appellant wishes to challenge the legality of the search warrant

which was the means used by the Garda Síochána to obtain the evidence against him. He said that, if he succeeds in that objective,

he will be able to secure the exclusion of the only evidence against him disclosed in the book of evidence, and there would not then

be a sufficient case to put the accused on trial. For that purpose, he would adduce evidence, on the hearing of the application under

section 4E, that the premises whose address was on the warrant was not the premises which was in fact searched.

14. The Appellant submitted that, as the court of trial has now the function of conducting the preliminary examination, section 4E

does not limit the scope of the investigation that the trial court can enter into in determining the question as to whether an accused

person has a case to answer. As the procedure for preliminary examination now vests in the trial court, that court can decide on the

validity of search warrants and dismiss any charge pursuant to Section 4E prior to the commencement of a trial before a judge and

jury.

Moreover, whether a warrant is legally issued or not is a matter of law. It would be decided at trial, in the absence of the jury.

15. Section 4E permits the admission of oral testimony (subject to the leave of the trial judge). The appellant submits that the

intention of the Oireachtas in inserting this section was to circumvent the many voir dire applications that occur during the course of

trials. An applicant under section 4E need not rely solely on the alleged facts as disclosed in the book of evidence, but can call

witnesses to substantiate the application that he or she is making.

16. The appellant also relied on the sentencing regime governing those convicted of section 15A offences. A person so convicted is

subject to a minimum period of imprisonment of 10 years, unless the Court is satisfied that, inter alia, the accused pleaded guilty and

indicated an intention to do so at an early stage. Thus the timing of the plea of guilty is critical. Where a person faces a mandatory

minimum sentence because he fails to derive a benefit from an early plea, it naturally diminishes the resolve to contest a trial because

he runs the risk that such decision would affect his sentence, if convicted.

17. The written submissions filed on behalf of the appellant lay particular emphasis on the risks, in the context of section 15A, of

relying on purely technical defences. Section 15A of the Misuse of Drugs Act, it is submitted, has huge implications for an accused

person who intends to rely on a technical defence.

Submissions of Respondents

18. The Respondents submit that questions of admissibility of evidence are determined by the trial judge in the context of the

evidence that he or she has heard and are determined at the time when they arise in the course of the evidence.

19. The appellant claims that all questions of law and fact that would be ruled on in the voir dire of a criminal trial that would result in

the charges being dismissed should be capable of being determined in the course of a motion to dismiss. If the appellant is correct,

motions to dismiss could presumably canvas all types of issues such as the legality of detention or the admissibility of confessions.

This could fundamentally alter the manner in which criminal trials have traditionally been conducted in this jurisdiction. The drafters of

the 1999 Act did not intend to effect such a fundamental change in the nature of the criminal process. Such change could only be

effected by legislation duly passed by the Oireachtas.

20. The advance determination of such issues would not necessarily assist the administration of justice. If the application pursuant to

section 4E were not, contrary to the appellant’s submissions, dismissed because the contested evidence was ruled admissible, that

would not necessarily bind the trial court. The accused person would be entitled to run the entire issue of admissibility for a second

time at trial, so that there would be no saving. Reference was made to the decision of this Court in Lynch v Moran [2006] 3 IR 389 to

the effect that issue estoppel has no role in Irish criminal proceedings.

21. The fact that s 4E provides that oral evidence can be heard “if it appears to the trial court that such evidence is required in the

interests of justice” cannot be used as a basis for suggesting that the section intended to alter the fundamental nature of a criminal

trial.

22. Mr Paul Anthony McDermott submitted at the hearing of the appeal that the judge should consider the book of evidence, taking

the prosecution case at its highest, and assuming the evidence is admissible. He submitted that section 4E constituted the

transplantation of the old procedure from the District Court to the court of trial.

23. The Respondents relied on the decisions of Hamilton J, as he then was, in Byrne v Grey [1988] IR 31 and Berkeley v Edwards

[1988] IR 217 and that of McCracken J in DPP v Windle [1999] 4 IR 280. Mr McDermott also suggested that the proposal for advance

determination of issues of admissibility would be inconsistent with the principle of the unitary nature of a criminal trial as laid down in

a number of authorities. The People (Attorney General) v McGlynn [1967] IR 232, Corporation of Dublin v Flynn [1980] IR 357 and DPP

v Special Criminal Court & Paul Ward [1999] 1 IR 60 were cited.

Considerations and conclusions

24. Before turning to the interpretation of section 4E, it is essential to identify the precise parameters of what the appellant was

asking the first-named respondent to decide. He describes the “grounds” of the application for dismissal of the charges as being that:

a) the “book of evidence herein fails to disclose any admissible evidence” and

b) the “search warrant requested by and issued to the prosecuting Garda failed to include on its face the premises sought

to be searched by them and was therefore invalid”.

25. Both of these arguments could have been advanced without any oral evidence. I am assuming here that the search warrant

formed part of the book of evidence. It should be included as an exhibit served pursuant to section 4B, also inserted in the Act of

1967 by section 9 of the Act of 1999. Mr O’Higgins explained that the evidence to be called would be to the effect that that the

premises whose address was on the warrant was not the premises which was in fact searched. Thus, very limited evidence would

have sufficed and I will return to that. I cannot conceive that the proof of such a simple fact would present any practical difficulty.

26. At any rate, the appellant does not disclose that any such limited application was made to the first-named Respondent. Rather,

he appears to have made a very much broader case that the section does not limit in any way the scope of issues that may be

determined on an application pursuant to section 4E and that the court may determine issues, not merely of law, but of fact. Again,

the appellant does not appear to accept any limits to that power.

27. I propose to consider the matter both on the broad basis advanced in argument and the narrower basis originally proposed before

the first-named respondent.

The statutory context of the Act of 1999 provides the most cogent explanation of the scope and purpose of section 4E.

28. Part II of the Act of 1967 laid down rules for the preliminary examination of indictable offences in the District Court. Section 5

imposed the general obligation on a judge of that court. Section 6 dealt with the service of documents constituting what we call the

book of evidence. Section 7(1) required the judge to consider those documents and “any deposition or statement taken in

accordance with this section and any submissions that may be made by or on behalf of the prosecutor or the accused.” Section 7(2)

permitted both the prosecutor and the accused “to give evidence on sworn deposition and also to require the attendance before the

justice of any person, whether included in the supplied list of witnesses or not, and to examine him by way of sworn deposition.”

Section 8(1) provided:

“If the justice is of opinion that there is a sufficient case to put the accused on trial for the offence with which he has

been charged, he shall send him forward for trial.” (emphasis added)

29. It is crucial, as I will explain, that the underlined words have been repeated in section 4E, though the sense is reversed: if “there

is not a sufficient case to put the accused on trial…” the charge will be dismissed. (emphasis added). This makes no material

difference to the meaning.

30. In DPP v Windle [1999] 4 I.R. 280 McCracken J considered the jurisdiction of a judge of the District Court to rule on the validity of

a search warrant. The accused was charged with certain drugs offences. The prosecution intended to rely on evidence secured on

foot of a search warrant. During the preliminary examination, the District Judge raised the question of validity of the warrant. The

warrant did not state on its face that the person authorising it was a peace commissioner for the area which comprised the premises

which were searched. The District Judge ruled the warrant invalid, the evidence inadmissible, and refused to return the accused for

trial. The prosecution applied successfully for judicial review.

McCracken J held (see page 284):

“I am quite satisfied that it is not for a judge conducting a preliminary investigation to determine the validity or otherwise

of a search warrant. This is a matter purely for the trial judge, to be determined by him on the evidence before him. If

there had been no search warrant in the present case, then certainly the District Judge would have been justified in

refusing to send the second respondent forward for trial, as there would have been no evidence to justify the search of

his premises, but once a search warrant existed, in my view the question of its validity was one for the trial and not one

for a preliminary investigation.”

McCracken J referred, at several points in his judgment, to the fact that further evidence could be called at trial. The decision in

Windle is not necessarily conclusive for the purposes of the present application. It does not bind this Court and it is concerned with

legislation which has since been repealed. It does, however, highlight the distinction between the decision that there is no sufficient

case, a term carried over from the former regime, to put a person on trial and a decision at the trial itself on the hearing of all the

evidence.

31. The broader case advanced on behalf of the appellant is, as submitted on behalf of the respondents, extremely far-reaching. The

appellant submits that there is no limit to the type of preliminary issue that may be determined on a section 4E application and that

the power of the court, on such application, extends to the resolution of disputed issues of fact.

32. I prefer the view of the respondents. This does not necessarily mean that the jurisdiction exercised pursuant to section 4E is

identical with the former jurisdiction of the District Court to decline to send a person forward for trial. Some weight should be

attached to the fact that the decision is being made by the actual trial court and to the faculty for the admission of evidence.

33. Nonetheless, it would require clear legislative wording to establish an entirely novel jurisdiction to determine, in advance of trial,

disputed issues of law or fact. The appellant’s submissions would appear to open the door to determination, for example and probably

most notably, of contested admissibility of incriminating statements or disputes about lawfulness of detention. It is notorious that trial

courts may spend days or even weeks hearing evidence and cross-examination in the absence of the jury touching on alleged

confessions made in garda custody. Hardiman J refers to these problems in the judgment he has just delivered. The parties have

referred, in oral and written submissions, to various reports and recommendations for the introduction of procedures such as “plea and

directions hearings.” Such procedures have generally been introduced by statute in other common-law countries. The power to make

binding preliminary rulings on admissibility would clearly require statutory intervention. What is clear, however, is that no existing

legislative authority exists for such procedures in this jurisdiction.

34. There is a further difficulty. If an issue of admissibility is determined not in favour of but against an accused person, it seems

clear that such a determination would not be binding at the subsequent trial. This Court decided in Lynch v Moran [2006] 3 IR 389

that issue estoppel has no role in Irish criminal proceedings, either in favour of the prosecution or of the defence. In the absence of

legislative provision, therefore, the proposed interpretation might lead to duplication of hearings on contested issues of admissibilituy

and thus increase rather than reduce the burden on the courts. This seems to me to be sufficient to dispose of the Appellant’s

argument based on convenience and economy.

35. The aim of section 4E was, so far as possible, to confer on the trial court a jurisdiction similar to that exercised by the District

Court at the conclusion of the preliminary examination. The question for the court is the same as it was formerly for the District

Court: is there a sufficient case to put the accused on trial? The application to dismiss can be made at any time after the return for

trial. It is necessarily confined (subject to the evidence issue discussed later) to what is disclosed in what we loosely call the book of

evidence. I agree with the view of Quirke J that the court should take the prosecution case at its strongest and assume that the

evidence disclosed in the book of evidence is admissible. Put otherwise, is there a prima facie case?

36. Even without the possibility of admitting evidence at the hearing of the application, I would not necessarily approach the issue as

strictly as McCracken J did in the Windle case. Some evidence, such as hearsay, may be self-evidently inadmissible. McCracken J

himself accepted that, if there were no search warrant, in a case where one was required as a matter of law, the District Judge might

hold evidence to be inadmissible and refuse a return for trial.

37. As originally presented, the appellant’s case appears to be of that narrower type. It was argued before first-named respondent

that the “search warrant requested by and issued to the prosecuting Garda failed to include on its face the premises sought to be

searched by them.” As I have mentioned, Mr O’Higgins phrased the matter somewhat differently: the premises actually searched was

not that named in the warrant. In my view, the trial court could decide an issue of that sort on a section 4E application. It may be,

however, that the Appellant’s submission depends on the establishment of some simple and uncontroversial fact. At this point, the

jurisdiction to admit evidence becomes relevant.

38. The first point to note is that the primary rule is that evidence will not be admitted. That follows logically from the fact that the

court is to decide whether a sufficient case is disclosed by the documents forming the book of evidence. However, section 4E

provides that “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.” I cannot accept that this provision is to be read as constituting a general power for

the judge to admit evidence. The purpose of any such evidence must be to cast light on the issue which the court has to determine,

namely whether, on the book of evidence, there is a sufficient case to put the accused on trial. Thus, evidence should be admitted to

explain the identity of persons, places or things referred to in the documents. It is necessarily difficult to lay down comprehensive

rules about this. The guiding principle is the interests of justice, but controlled by the context of the application and the

circumstances of the particular case. Always, the issue is whether a sufficient case is disclosed.

39. The extended definition of “oral evidence” given in section 4E to include evidence given by live television link, pursuant to three

specified statutory provisions, does not affect the interpretation I have adopted. I have already said that the section permits

evidence to be given in the interests of justice in order to cast light on the question of whether there is “a sufficient case.” It is

logical that that faculty should include evidence given by live television link where that is permitted. The first two specified provisions,

section 39 of the Supreme Court of 1999 and Part III of the Criminal Evidence Act, 1992 (of which only section 13 is capable of

applying) apply only to a person other than the accused. The third, section 4F, also inserted by section 9 of the Act of 1999, relates

only to evidence given by deposition or live videolink in the District Court pursuant to an order made by the court of trial after the

return for trial. In effect, therefore, that evidence becomes part of the body of evidence to be considered with the book of evidence

in an application under section 4E, if available at that time.

40. I am satisfied that it was not intended that section 4E would provide an independent free-standing procedure for the

determination of preliminary issues. It would make no sense to provide such a procedure merely for those cases where the accused

contended that there was no sufficient case to put him on trial but not to cases where contested evidence formed part only of the

material to be produced at trial. If the power existed, it would have to apply to all cases. Put otherwise, the court is not required to

determine any such preliminary issue, where the documents disclose other evidence against the accused.

41. The foregoing view receives support from the fact that the prosecution may appeal the dismissal of a charge. No corresponding

right is conferred on the defence. That is because, for the prosecution a decision to dismiss is final: it ends the prosecution. Not so,

where the charge is not to dismiss the charges. The case proceeds to trial, all defence rights being preserved.

42. Thus, I would reject the broader argument advanced on behalf of the Appellant.

43. That conclusion does not, however, necessarily dispose of the instant case. The subject-matter of the application for judicial

review is the decision of first-named respondent of 11th May 2004. According to the uncontradicted evidence of the Appellant the

first-named respondent ruled that the validity of search warrants was to be determined at the trial and could not be the subject-

matter of an application to dismiss pursuant to section 4E of the Act of 1967. In effect, he declined jurisdiction to consider the

question of validity of the search warrant. His decision did not turn on whether he should admit evidence. I am satisfied that first-

named respondent erred in reaching this conclusion. To be fair to the learned judge, he may have been faithfully following the decision

of McCracken J in Windle. Nonetheless, he should have been prepared to consider arguments on the issue of validity as disclosed in

the documents and, possibility, whether evidence should be admitted to explain the circumstances of the search or the identity of the

premises though only in the sense that a ruling of invalidity would have the effect of ruling out all the evidence against the accused. I

do not think it has been established that there is any overriding rule that the decision on whether there is a sufficient case to put a

person on trial precludes the judge hearing such an application to dismiss from ruling that there is no case, where that involves

concluding that the only evidence advanced against the accused is plainly inadmissible. An example would be where the only evidence

was clearly hearsay. McCracken J acknowledged, in the passage cited, that, if there had been a search without warrant, where one

was required, “certainly the District Judge would have been justified in refusing to send the second respondent forward for trial, as

there would have been no evidence to justify the search of his premises…” Such a conclusion would necessarily imply a determination

that the evidence was inadmissible. This jurisdiction will exist only in the clearest of cases. It does not mean that the first-named

respondent, in this case, should have conducted any form of inquiry involving the resolution of disputed issues of fact. Furthermore,

he must bear in mind that other evidence given at trial my cast further light on a particular matter. Interpreted in this way, section 4E

would not entrench on the unitary nature of a criminal trial. For reasons I have given, it was not the intention of section 4E to confer

jurisdiction to determine disputed issues of fact in advance of trial.

44. Finally, I wish to add that I do not accept that the interpretation of the section can be in any way influenced by the tactical

considerations concerning the stage at which an accused person should plead guilty to a section 15A offence. The courts cannot

take into account the risks an accused person runs by failing to enter a plea of guilty while he raises what the appellant’s submissions

describe as a “technical defence.” Legislation imposing, in the public interest, a presumed minimum sentence of ten years

imprisonment, subject to mitigation in the event of an early plea stands alone. It cannot affect the exercise of the power conferred

on the trial court by section 4E or the interpretation of that section.

45. I would allow the appeal. I would make an order quashing the decision of the first-named Respondent of 11th May 2004. That will

enable the trial court to resume consideration of the Appellant’s application for dismissal of the charges against him.