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High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Hughes v. Garavan [2001] IEHC 190 (14th December, 2001)
URL: http://www.bailii.org/ie/cases/IEHC/2001/190.html
Cite as: [2002] 2 ILRM 127, [2001] IEHC 190

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Hughes v. Garavan [2001] IEHC 190 (14th December, 2001)

THE HIGH COURT
JUDICIAL REVIEW
Record No. 20 JR/2001
BETWEEN
FIONN HUGHES
Applicant
and
JUDGE JOHN GARAVAN AND THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondents

Note of Ex Tempore Judgment delivered by Mr Justice Kelly on the 14th December, 2001.

1. On the 18th December, 2000 the applicant was returned for trial to Galway Circuit Court on eight charges, all of which relate to illegal drugs. The applicant seeks to quash the return for trial on the eighth charge which is formulated as follows:


"That you the said accused did on the 14th October, 1999 at Hillpark, Clarinbridge, Co. Galway within the District Court area of Galway, district no. 7, have in your possession one or more controlled drugs to wit cannabis resin and cocaine for the purpose of selling or otherwise supplying the drugs to another in contravention of the Misuse of Drugs Regulations, 1983 and 1993, made under section 5 of the Misuse of Drugs Act, 1977 and at the time while the drugs were in your possession the aggregate market values of the controlled drugs amounted to £10,000 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"

2. This is a charge which, if it results in a conviction, carries very serious consequences for the applicant as part II of the Criminal Justice Act, 1999 which regulates the offence provides for a minimum sentence of ten years imprisonment.

3. What occurred in the District Court is not in dispute. It is set out in the affidavit of Benen Fahy, solicitor for the applicant.

4. At paragraph 3 of his affidavit Mr Fahy avers that the applicant was arrested on the 4th October, 1999 and again on the 14th October, 1999 and charged with eight offences relating to possession of illegal drugs. On the 4th September, 2000 the applicant was served with a list of witnesses and a book of statements of evidence in accordance with section 6(1) of the Criminal Procedure Act, 1967, commonly called the "Book of Evidence". The preliminary examination of the case against the applicant was adjourned until the 2nd October, 2000 in order to allow consideration of the Book of Evidence.

5. At the preliminary examination of the case against the applicant on the 2nd October, 2000 no evidence was called by way of deposition. Judge Garavan asked if the parties had any submissions to make in relation to the Book of Evidence. The prosecution did not make any submissions. At that time Mr Fahy made a submission to the court to the effect that the Book of Evidence did not disclose any evidence of the value of the drugs in question and in those circumstances submitted that the applicant should not be returned for trial on the eighth count of the statement of charges of the 4th September, 2000 which were signed by William J Kennedy, State Solicitor for Co Galway West on behalf of the prosecutor.

6. Following that submission the prosecution requested an adjournment in order to consider the point raised by Mr Fahy relating to the value of the drugs in question. Judge Garavan then adjourned the hearing until the 16th October, 2000.

7. At paragraph 8 of his affidavit Mr Fahy says that on the 13th October, 2000 he received a "notice of additional evidence" by way of facsimile, indicating that the prosecution proposed to call further evidence from Det Garda Jarlath Burke, purporting to testify as to the value of the drugs in question. That statement was also served on the applicant personally on the same date and was furnished to the court on the adjourned date of the 16th October, 2000. Mr Fahy asked for time to consider its contents.

8. In his affidavit at paragraph 9 Mr Fahy says that the statement of additional evidence did not contain evidence which was unavailable to the prosecution at the time when the Book of Evidence was compiled against the applicant. Rather, he said, that it consisted of an attempt by the prosecution to mend its hand in relation to the eighth charge laid. He contends that the District Court had no jurisdiction to entertain further evidence at that stage and complains that it was unfair to allow the prosecution to procure such evidence and to rely upon it in order to substantiate the charge under section 15A (as inserted by section 4 of the Criminal Justice Act, 1999) of the Misuse of Drugs Act, 1977 once the preliminary examination had proceeded to the submission stage.

9. The preliminary examination of the case against the applicant was adjourned until the 20th October, 2000. On that occasion Mr Fahy made submissions that it was unreasonable for the prosecution to purport to prove the value of the drugs in question without analysis of the purity of the cocaine and requested that such analysis be carried out. The preliminary examination was again adjourned until the 11th December, 2000. Mr Fahy avers that he understood that such analysis was to be carried out by the prosecution prior to the adjourned hearing.

10. Prior to the adjourned hearing on the 11th December, 2000 Mr Fahy took advice from counsel and as a result of that advice he made submissions to Judge Garavan on that date to the effect that the further statement of Det Garda Jarlath Burke should not be accepted in evidence by the court as it was not permitted by the Criminal Procedure Act of 1967. Secondly, he submitted to Judge Garavan that it was unfair to allow such evidence to be served at that stage in the proceedings. He acknowledges in his affidavit that he accepted before Judge Garavan that section 6(4) of the Criminal Procedure Act, 1967 allows further evidence to be served but said that it did not apply in this particular case. Judge Garavan found against him on this point and held that the evidence could be admitted.

11. Det Inspector Tony O'Donnell was then asked whether or not an analysis of the purity of the cocaine would be carried out and that the Det Inspector replied that it would not.

12. The applicant was returned for trial to the Galway Circuit Court on the 10th January, 2001. This has now been overtaken by events as these judicial review proceedings got under way.

13. It is to be noted that the first exhibit in the Book of Evidence is an inculpatory statement made by the applicant in which he inter alia touches upon the value of the drugs in his possession. There is also a statement of evidence from his co-accused which may also touch upon that question. The statement of additional evidence of Det Garda Burke estimates the street value of the drugs at £27,816.

14. It is contended on behalf of the applicant that the District Judge had no jurisdiction to admit the statement of additional evidence at the point at which it was adduced in the course of the preliminary examination. It is further contended that a procedure which would allow such statement to be adduced is impermissible because it is said to be unfair to the applicant.

15. The procedure governing preliminary examination is dealt with in part II of the Criminal Procedure Act, 1967. Five sections of the Act are relevant to the matter in hand.

Section 5 provides that where an accused person is before the District Court charged with an indictable offence then, unless the case is being tried summarily or the accused pleads guilty, the justice shall conduct a preliminary examination of the charge in accordance with the provisions of that part of the Act.
Section 6(1) provides that the prosecutor shall cause the following documents to be served on the accused:
(a) A statement of the charges against him,
(b) A copy of any sworn information in writing upon which the proceedings were initiated,
(c) A list of the witnesses whom it is proposed to call at the trial,
(d) A statement of the evidence that is to be given by each of them and
(e) A list of exhibits (if any).

Section 6(2) provides that copies of the documents should also be furnished to the court.
Section 6(3) provides that the accused shall have the right to inspect all exhibits.
Section 6(4) provides that the prosecutor may cause to be served on the accused and furnished to the court a further statement of the evidence to be given by any witness a statement of whose evidence has already been supplied.
Section 7 provides that the judge 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.
Section 7(2) provides that the prosecutor and the accused shall each be entitled to give evidence on sworn deposition and also to require the attendance before the court of any person, whether included in the supplied list of witnesses or not, and to examine him by way of sworn deposition.
Section 7(3) provides that a witness under subsection (2) may be cross-examined and re-examined on his evidence. His deposition shall be taken down in writing, read over to him and signed by him and by the District Judge.
Section 8 provides for the return for trial or discharge of the accused in respect of the offences in question.
Section 11 provides that where an accused has been sent forward for trial the Attorney General (now the Director of Public Prosecutions) shall cause to be served on him a list of any further witnesses whom he proposes to call at the trial, with a statement of the evidence that is to be given by each of them, a list of any further exhibits, a statement of any further evidence that is to be given by any witness whose name appears on the list of witnesses already supplied, and copies of any statement recorded under section 7 and any deposition taken under that section or under section 14.
Section 18 provides that where an accused has been sent forward for trial, the indictment against him may include, either in substitution for, or in addition to, counts charging the offence for which he has been sent forward, any counts founded on any of the documents and exhibits considered by the judge at the preliminary examination.

16. The applicant contends that this is a step by step procedure and that it is not open to the District Court to depart from that procedure, or at least, not as was done in this case. It is said that it was not open to the District Judge to admit additional evidence after the submission of the preliminary examination.

17. I have no difficulty in accepting, and indeed, must accept, the view of Finlay C.J. in O'Shea -v- DPP [1988] IR at 667 where he said


"The right of a person charged with an indictable offence to a preliminary examination before a District Justice is not a constitutional right but rather is a statutory right. This has not been contested in this case by counsel for the applicant and it is, in the view of the court, undoubtedly the true legal position. The right to a preliminary examination, relevant to these proceedings, is contained in part II of the Act of 1967 which provides between sections 5 and 20 inclusive, a complete and comprehensive procedure. It is incorrect to seek to identify individual parts of the machinery thus laid down as being rights which can be looked at separately from, and as immune from effect by, other provisions of this part of the statute. When, therefore, there is provided in sections 6, 7 and 8 the machinery for a preliminary examination with the possible outcome of the accused being sent forward for trial or being discharged as to the offence under examination, this right must of necessity be construed as a right which under the part of the Act concerned is expressly subject to the possibility that, if the accused is sent forward for trial, substituted or additional counts may be entered on the indictment provided that they are founded upon the documents and exhibits considered by the District Justice".

18. The case for the applicant is in effect that the prosecutor took a liberty in serving additional evidence without the leave of the District Judge. I do not believe that the Director of Public Prosecutions did this without the permission of the District Judge but in any event no objection was made.

19. The purpose of the preliminary examination is succinctly described by McCracken J. in DPP -v- Windle [2000] 1 ILRM 75 at 78 as being


"a preliminary examination of the charge. It is not a trial of the accused, and the sole purpose would be to determine whether there is a sufficient case to put the accused on trial. I think it is particularly relevant that under section 11 of the act it is quite clear that the applicant herein is entitled to call further witnesses at the trial and indeed, introduce further documents and is not limited to those produced at the preliminary examination".

20. The preliminary examination is an important safeguard to ensure that an accused is not put on trial for offences where there is no evidence against him. However, the examination is not complete until the accused is discharged or a return for trial is made. I do not accept the proposition that a District Judge cannot allow further evidence after the submission stage for a number of reasons.

First, section 6(4) which permits the service of additional evidence is not qualified in any way in respect of the time when such evidence may be served. It is to be noted that even after a return for trial is made under section 11 of the Act then it is open to the prosecution to adduce additional evidence. In this case the additional evidence was served prior to the return for trial and in my view fair procedures were observed in respect of that evidence since the applicant's solicitor was afforded the opportunity, of which he availed, to make submissions.

21. Secondly, to hold in favour of the applicant would be in effect to rewrite the provisions of section 6(4). Such an approach is inconsistent with the entitlements of the court and would be an interference into the legislative domain. This court cannot interpose words which would limit or qualify the entitlement which is afforded by section 6(4). The section in my view cannot be interpreted to mean that the prosecution is not entitled to amend its proofs. The procedure set forth in the act does not have to be slavishly followed with no opportunity being afforded to the prosecution to cure a defect in proofs prior to the District Judge making the decision called for under section 8. The preliminary examination is not the trial. The preliminary examination is not complete until an order is made under section 8.

22. Thirdly, if the position were otherwise one would have the curious result that the Director of Public Prosecutions would be debarred from serving additional evidence prior to the return for trial. Yet if the accused were returned for trial then the Director has an unfettered right to serve additional evidence pursuant to section 11.

23. Fourthly, it is clear that even in a trial on indictment a witness may be recalled at any stage during the trial even after the jury has retired. Davitt P. giving the judgment of the Supreme Court in the case of The People (Attorney General) -v- O'Brien [1963] IR 79 said, and I quote


"On this review of the authorities it seems to us (as already stated) that there was a considerable weight of opinion in favour of the proposition that the trial judge had the power, to be exercised at his discretion, of recalling a witness at any stage of the case, even after the jury had retired to consider their verdict and that very little, if any, of it was brought to bear upon the Court of Criminal Appeal in any of the English cases referred to. In this respect at least, Sir Matthew Hale appears to be without honour in his own country. Moreover, if I may say so with all respect, justice in criminal cases is not the exclusive preserve of defendants".

24. Given this discretion that a trial judge would have to call evidence even after a jury had retired, it seems to me that the District Judge did undoubtedly have the discretion to allow additional evidence to be served in this case. In my view he exercised that discretion correctly and did not depart from fair procedures. It follows that certiorari will not be granted and that these proceedings are dismissed.

25. Even if I had come to a different conclusion, it would be difficult to see what advantage the applicant could gain by these proceedings. This is clearly a matter which in my view would have to be remitted to the District Court. Mr Gageby on behalf of the applicant did not oppose that proposition when put to him. However, it is not necessary for me to consider this aspect of the matter further. In view of my decision that the District Judge acted within jurisdiction, that there was no breach of the Act and that what occurred was compatible with fair procedures and was not unfair to the applicant I refuse the application.

© 2001 Irish High Court

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URL: http://www.bailii.org/ie/cases/IEHC/2001/190.html