Judgment
Title: | Cruise -v- O'Donnell |
Neutral Citation: | [2007] IESC 67 |
Supreme Court Record Number: | 40/2005 |
High Court Record Number: | 2004 No. 551 JR |
Date of Delivery: | 12/20/2007 |
Court: | Supreme Court |
Composition of Court: | Murray C.J., Denham J., Hardiman J., Geoghegan J., Fennelly J. |
Judgment by: | Hardiman J. |
Status: | Approved |
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| Judgments by | Link to Judgment | Concurring | Fennelly J. | | Murray C.J., Denham J., Geoghegan J. | Hardiman J. | | | |
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THE SUPREME COURT
40/05
Murray C.J.
Denham J.
Hardiman J.
Geoghegan J.
Fennelly J.
BETWEEN:EAMON CRUISE
APPLICANT/APPELLANT
AND
JUDGE FRANK O’DONNELL and THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTS
JUDGMENT of Mr. Justice Hardiman delivered the 20th day of December, 2007.
1. The applicant, Mr. Cruise, is a defendant in a pending criminal case in which he is charged with seven charges under the Misuse of Drugs Act. These include a charge under s.15A, as inserted by s.4 of the Criminal Justice Act, 1999, of the Misuse of Drugs Act, 1977. A particular submission, to be discussed below, arises out of that last mentioned charge. All of these charges relate to an alleged possession of drugs on the 20th June, 2002 at “Farrell O’Brien Premises, Killeen Road, Clondalkin, Dublin 12.”
2. This case was heard with another case, Phipps v. DPP because both cases raise questions relating to s.4E of the Criminal Procedure Act, 1967, as inserted by s.9 of the Criminal Justice Act, 1999.
Factual background.
3. Having been charged with the relevant offences, the applicant was eventually sent forward to the Dublin Circuit Court for trial.
4. On the 11th May, 2004, while the case was pending, the applicant issued a motion in the Dublin Circuit Criminal Court pursuant to the provisions of s.4E of the Criminal Procedure Act, 1967, seeking an order dismissing the charges against him on the following grounds:
5. This motion was given a return date in the Circuit Court before His Honour Judge O’Donnell. This date was the 30th March, 2004. The learned Circuit Court judge decided that, prior to the determination of the issue before the Court he wished to hear argument as to his jurisdiction to hear the applicant’s application to dismiss. Having heard such argument he ascertained that the substantive issue raised by the appellant in support of his application to dismiss concerned the validity and efficacy of a search warrant issued to An Garda Síochána. The appellant sought to have the charges against him dismissed on the ground that the search warrant was invalid and did not properly describe or relate to the premises where the seizure alleged by the gardaí, according to the statements of evidence, took place.
6. The learned Circuit Court judge ruled that the issue of the validity of the warrant could not be the subject of an application pursuant to s.4E. He held that he had no jurisdiction to adjudicate on this issue and that it was a matter to be decided on before the trial judge during the course of the trial proper. He cited with approval the decision of McCracken J. in DPP v. Windle [1999] 4 IR 280 as follows:
“I am satisfied that it is not for a judge conducting a preliminary examination 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 such warrant to the present case, then certainly the District Court 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 the premises, but once a search warrant existed, in my view the question of its validity was one for the trial and not for the preliminary examination.”
7. Subsequent to this decision the applicant sought and obtained leave to seek judicial review of it in the High Court. He was however unsuccessful on the hearing of his application. The learned High Court judge (Quirke J.) cited the same passage from the judgment of McCracken J. (at p.6 of his judgment) and went on to hold:
“It seems to me that these remarks apply with equal force to the procedure pursuant to s.4E of the 1967 Act which has now replaced the former preliminary examination before the District Court.”
8. From this judgment and order of the High Court the appellant now appeals to this Court.
Statutory background.
9. Between 1967 and 1999 the proceedings preliminary to a trial on indictment took place in the District Court. They took place there pursuant to Part II of the Criminal Procedure Act, 1967 which was entitled “Preliminary Examination of Indictable offences in the District Court”. By s.5 of the Act this preliminary examination was made mandatory. Section 6 required the service of certain documents on the accused (“The Book of Evidence”) and s.7 provided that:
“(1) The Justice shall consider the documents and exhibits, 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.
(2) The prosecutor and the accused shall each be entitled 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.”
10. Section 8 of the Act provided that:
(1) “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.”
(3) If the Justice is of the opinion that there is a sufficient case to put the accused on trial for some indictable offence other than that charge, he shall cause him to be charged with that offence, proceed in accordance with s.7(4)… and unless s.13 applies, send him forward for trial.
(4) If the Justice is of opinion that a summary offence only is disclosed, and the Attorney General consents, he shall cause the accused to be charged with a summary offence and deal with the case accordingly.
(5) If none of the foregoing provisions applies, the Justice shall order the accused to be discharged as to the offence under examination.”
11. That procedure, familiar to generations of lawyers, was abolished by the Criminal Justice Act, 1999. Part III of that Act is entitled “Amendments to abolish preliminary examinations”. Section 8 of the Act is entitled “Amendments of s.4 of the Act of 1967.”
12. Section 9 of the 1999 Act provides for the amendment of the 1967 Act “by the insertion after s.4 of the following part.” The whole of s.9 of the 1999 Act is relevant for the purpose of the present case but it is necessary to set out here only the new provisions of s.4E of the 1967 Act, inserted by s.9. These are as follows, so far as directly relevant:
“(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.”
Submissions.
13. The appellant submits that the old “preliminary examination” has been abolished by the 1999 Act and replaced by an entirely new statutory dispensation. This, says the appellant, is a broad and unqualified one: he has an absolute entitlement to apply to dismiss the charges against him. The grounds of such application are not limited in any way: nothing is excluded. In the course of submissions the applicant indicated the nature of his challenge to the sufficiency of the case against him in some detail: he said that the search warrant issued does not, on the face of it, relate to the premises where the drugs in question were allegedly found.
14. In his statement of evidence, the guard who applied for the search warrant, Garda David Kennedy, said that he received information “that a premises connected to Farrell O’Brien Metal Fabricators on Knockmitten Lane, Killeen Road, Dublin 12” was being used to store and distribute drugs. The warrant eventually issued was for: “(a premises) (land) of Farrell O’Brien, Knockmitten Lane, Killeen Road, Dublin 12.” One or other of the words “a premises” or “land” was supposed to have been deleted but this did not occur. Counsel for the applicant said that he would require to call a small amount of oral evidence to establish that the place where the drugs were seized was not the same as the place mentioned in the documents served on the accused. He said however that there was provision for such evidence in subsection (4) of the new s.4E. He pointed out that challenging a search warrant is a matter which would normally be dealt with in the absence of a jury on a voir dire and that a jury would not be involved in the determination at all. He referred to the provision in the new Section for oral evidence with the leave of the trial judge and submitted that the intention of the Oireachtas in inserting that Section was to prevent the many voir dire applications that may occur, from delaying or obstructing the course of a trial already commenced. He said that, in a pre-trial hearing, a judge could determine an issue of law and if the judge determined that issue in favour of the accused at a pre-trial hearing pursuant to s.4E, that would avoid the necessity for the trouble and expense that a trial necessarily involves. He also submitted that the new s.4E plainly envisaged that a result which would bring the entire trial to an end might follow an application under s.4E by providing that the Director could appeal against a dismissal of the charge. He has no right of appeal against a directed verdict at Trial.
15. The Director of Public Prosecutions submitted that the Oireachtas did not intend, in passing the 1999 Act, to effect what he described as “a fundamental change in the nature of the criminal process”. He said that the main aim of the 1999 Act was simply to move the focus of the preliminary stages of a criminal trail from the District Court to the court “in respect of which the accused was returned”. He conceded that:
“When looked at on its own it is true to say that s.4E does not place any express limitations of what can be raised in a motion to dismiss.”
16. However he pointed out that the Act of 1967 did not do so either “so it is difficult to see what this proves”. He said that the Section should be looked at against the background of the whole concept of a criminal trial as understood in Ireland. “The interpretation contended for by the applicant would undermine the unitary nature of a criminal trial. Significant issues which would normally only be dealt with once a jury had been sworn in would now be determined in advance and could be the subject of appeal. If the applicant is correct, motions to dismiss could presumably canvass all types of issues such as the legality of detention or the admissibility of confession.”
17. Both sides, as it happened, relied on the fact that there had long been calls for the provision of some mechanism, preliminary to trial, where evidential and legal issues could be determined. The report of the Working Party on the Jurisdiction of the Courts: the Criminal Jurisdiction of the Courts, which was published in May 2003, called for the introduction of a new preliminary hearing mechanism for all cases on indictment. One of the purposes of this was “to enable the determination of those types of issues of admissibility of evidence which by their nature are capable of being dealt with prior to trial” (see paragraph 85 of the Report). The applicant says that the Director of Public Prosecutions himself has frequently made a similar suggestion but the respondent says that the fact that the Working Party called for this in 2003 shows that it did not regard the innovations introduced in 1999 as constituting such a mechanism. But the views of the very respected Working Party cannot be dispositive of the issue, which is fundamentally one of statutory interpretation. The Working Party, indeed, may not have addressed this issue at all.
18. The appellant makes a further submission which arises from the fact that he is charged, inter alia, with an offence contrary to s.15A of the Misuse of Drugs Act. He points out that, by reason of the terms of this Section, he would on conviction be subject to the imposition of a statutory minimum sentence of ten years. However, if he could demonstrate “specific and exceptional” circumstances, then the statutory minimum sentence might not apply. The Act specifically identifies that a fact of which the court is entitled to take into account is a plea of guilty and the time at which and circumstances in which a plea is tendered. He says that the result of this is that he is entitled to be advised as to the legality of the warrant at the earliest possible stage so that he can decide on his course of action in relation to the accusation against him on the basis of such advice. If the issue is not determined until the trial he may be prejudiced in terms of sentence as a result of a finding that he did not offer an early plea of guilty.
19. This seems to me to be a matter which it is very proper for the appellant and his advisers to take into account but, again, one which could not be dispositive on the question of the true meaning of s.4E.
The new subsection.
20. The 1999 Act abolished preliminary examination in the District Court. Under the former system 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. These, however, were required to be exercised in the “trial court” rather than in the District Court. The right to apply for the dismissal of the charges against one, pursuant to s.4E, is one such entitlement. These are important entitlements. 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 to the often forgotten jury persons, brings a rapid end to the defendant’s anxieties (which in this case must be considerable since one of the charges against him 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.
21. There is, accordingly, no doubt but that the applicant was entitled to seek the dismissal of the charges against him in the Circuit Court. The question is whether he was entitled to seek it on the basis of the invalidity or insufficiency of the search warrant which was exhibited in the documents served on him.
22. The answer to this question must depend on the terms of the statutory provision already quoted. The applicant has undoubtedly brought his application in the “trial court” which is what the subsection envisages. The Director submits that the question of the invalidity or insufficiency of the warrant can be determined only by the trial judge. Undoubtedly it would have been open to the Oireachtas to lay down that this should be so but it has not done so, speaking only of the “trial court”. His Honour Judge O’Donnell is undoubtedly a judge of the Circuit Court. The applicant cannot know in advance who the judge presiding over the trial will be so that, if he wishes to avail of s.4E he must bring his motion in the Circuit Court and await its assignment by the proper authorities to whatever judge they regard as appropriate. He cannot determine the identity of the Judge who will decide the result of his motion. The identity of the trial judge is usually not known (in Dublin) until the morning of the trial.
23. Equally, it seems to me, that the fact that there is authority for the proposition that a judge conducting a preliminary examination (prior to 1999) should not determine the validity of a warrant is without relevance to the present issue, because the former preliminary examination has been abolished by statute and this new procedure substituted. If there is one thing that can be said with certainty about the intention of the legislature in enacting the Act of 1999 it is that such intention certainly extended to the abolition of the preliminary examination procedure and to its replacement with this entirely new procedure. See the long title to the 1999 Act. Accordingly, the relief sought in the Applicant’s motion seems to me to be within the power conferred by s.4E.
24. The most fundamental ground urged by the Director is that to have important issues determined by a preliminary motion would interfere with the essential unity of a criminal trial. He cites in this regard a well know passage from Chief Justice Ó Dálaigh in The People (Attorney General) v. McGlynn [1967] IR 232 at 239:
“The nature of a criminal trial by jury is that once it starts, it continues right through until discharge of verdict. It has the unity and continuity of a play.”
25. Ó Dálaigh C.J. continued, in a passage which requires knowledge of the facts of the case to make comprehensible:
“It is something unknown to the criminal trial for a jury to be recessed in the middle of a trial for months on end and it would require clear words to authorise such an unusual alteration in the course of a criminal trial by jury.”
26. McGlynn’s case was one in which a Circuit Court judge purported to state a case for the opinion of the Supreme Court after the evidence in a criminal trial had closed and before the jury’s verdict. Section 16 of the Courts of Justice Act, 1947, enabled him to state a case in a matter “pending before him”.
27. The Supreme Court declined to entertain the Case Stated on the basis that the matter was, strictly speaking, pending before the jury or the judge and the jury, and not before the judge alone. The passage quoted above, and relied on in the Director’s submissions is in the nature of an additional observation and is introduced by the words “There is, moreover, the nature and history of a criminal jury trial” (p.239).
28. Apart from any of these considerations, it is clear that the course of action which the appellant wishes to take here would not involve the adjournment of a criminal jury trial for any period, long or short. It would, on the contrary, facilitate the unitary disposition of the case by a jury by resolving in advance a question which would have to be determined otherwise in the absence of the jury, perhaps delaying for several days their participation in the case.
29. It has, unfortunately, become all too common for juries to be sent away for long periods during the course of a criminal trial. Indeed, it has become quite common for a case to be opened and the jury sent away immediately while issues such as those sought to be raised here under the s.4E procedure, are determined. The judge will normally send the jury away with some words of apology and attempt at an explanation but the fact is that the present system makes little or no attempt to minimise the time for which the jury’s absence from their ordinary avocations and duties is required.
30. We live in an era of case management, when a serious attempt is being made to deal with all litigation, civil or criminal, in an efficient manner. The most superficial consideration of efficiency will lead to the conclusion that it is considerably more efficient to deal with matters, which must by their nature be dealt with without a jury in any event, before the jury is sworn and taken away from their ordinary occasions rather than afterwards. I accord the fullest possible respect to Chief Justice Ó Dálaigh’s statement about the essential unity and continuity of a criminal trial and entirely agree with it. Disposing of evidential issues before the jury is sworn will assist and emphasise, rather from detracting from, that unity and continuity. In other jurisdictions where pre-trial motions to suppress evidence and similar procedural devices are well established, the fundamental nature of a jury trial is not considered to be trenched upon.
31. According to the United States Federal Rules of Criminal Procedure the government must, at or as soon as possible after arraignment notify the defendant of its intention to use specific evidence at trial, “In order to afford the defendant an opportunity to object before trial under Rule 12(B)(3)(C)” (which provides for a motion to suppress testimony). Rule 47 of the Rules applies to pre-trial motions and a motion to suppress evidence is one that must be made before trial. Similarly, “The Court must decide every pre-trial motion before trial unless it finds good cause to defer a ruling”. For the position in the United Kingdom, see Sprack Criminal Procedure, paragraph 16.08 and sections 39 - 43 of the Criminal Procedure and Investigations Act, 1996. It is clear that in neither of these jurisdictions does the making of significant rulings at pre-trial hearings constitute a radical departure from the essential nature of jury trial.
32. On a careful examination of s.4E I can see nothing that excludes the procedure which the appellant was seeking to have adopted. Indeed, it is conceded on behalf of the Director that there is nothing express prohibiting the procedure he seeks to adopt and he has grounded his opposition under the broader basis indicated above. I would therefore quash the decision of the learned Circuit Judge not to consider the motion brought by the defendant on the ground of a lack of jurisdiction and remit the matter to the Circuit Court to be dealt with in accordance with law.