High Court dismisses application to quash Circuit Court judgment for alleged lack of transparency in oral ruling.

[2026] IEHC 76

RECORD NUMBER 2024/157 JR

THE HIGH COURT

BETWEEN

CONWAY

APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of Mr. Justice Michael Twomey delivered on the 12th day of February, 2026

INTRODUCTION

1. When an application is made to set aside a judgment of a court because it is claimed that it was not clear or transparent enough, it is important to bear in mind that there is a difference between judgments of the District and Circuit Court and those of the High Court, the Court of Appeal and the Supreme Court.

2. In the District and Circuit Courts, the judgment is usually delivered orally (ex tempore), due to the large caseload in those courts, while in the other courts, the judgment is often delivered in writing which allows time for careful reflection on the language to be used (sometimes over several drafts), and in the case of the appellate courts, with input from judicial colleagues.

3. Thus, when criticising a judgment of a District or Circuit Court for its lack of clarity or lack of transparency, it is important to bear in mind the difference in the time afforded to a District or Circuit Court judge to formulate a judgment, compared to judgments of the other courts, as well as the practical realities regarding the context in which judgments in the District or Circuit Court are given.

4. This is important background for this case, as it concerns a claim by the applicant (“Mr. Conway”) that there is an absence of transparency and clarity in Crowe J.’s judgment. In that judgment, she refused Mr. Conway’s application to have charges against him, for the use and supply of cocaine, struck out).

5. It is to be noted that, for the purposes of this application, the words spoken by the trial judge have been reduced to writing, since there is a transcript of the hearing. However, it remains an oral judgment and so for the reasons stated, it is very different in format from a written judgment issued by the High Court/Court of Appeal or the Supreme Court.

6. As a general point, it seems to this Court, that this difference between judgments in the Circuit Court (or District Court) and the other courts, needs to be borne in mind, when those judgments are criticised for not having clarified a point which might, with the benefit of hindsight, have been clarified, or if they failed to make explicit something, that might be regarded as implicit.

BACKGROUND

7. This is an application which was heard by this Court on 23 January 2025, to quash, by way of judicial review, an order of the Circuit Court.

8. At that hearing in the Circuit Court, Mr. Conway sought to have charges on indictment which had been brought against him dismissed, because of the alleged insufficiency of the evidence. The application to dismiss Mr. Conway’s indictment was brought under s.4E of the Criminal Procedure Act, 1967 (the “1967 Act”). The charges he sought to have dismissed related to the possession, and possession for the purposes of supply, of cocaine (under the Misuse of Drugs Acts 1977 and 1984).

9. On 8 November 2023, the Circuit Court gave its judgment refusing to dismiss the charges against Mr. Conway.

10. Mr. Conway’s position is that the trial judge was incorrect in law, when he says she relied on the Notice of Additional Evidence (the “Additional Evidence”) which was made in the case, when she reached her decision to refuse his application to dismiss the charges.

11. The background to this issue is that on 24 July 2023 Mr. Conway’s application to dismiss was heard and one of the grounds was that the Certificate of Analysis from Forensic Science Ireland was flawed.

12. It was claimed by counsel for Mr. Conway that that there was no reference in that certificate to handling, transmission and storage. At this hearing, counsel for the DPP purported to call a witness at that hearing, to which Mr. Conway’s counsel objected, and the hearing was adjourned to allow the DPP to take instructions and make legal submissions on the calling of the witness.

13. Then on 26 July 2023, the DPP served the Additional Evidence on Mr. Conway in relation to the Certificate of Analysis from Forensic Science Ireland, which it was claimed by Mr.

Conway was intended to rectify the flaws that he had highlighted at the hearing on 24 July 2023.

14. When the hearing resumed on 27 July 2023, the DPP accepted that it could not call a witness at a s. 4E hearing (unless the interests of justice required it). This dealt with the witness issue which had led to the adjournment in the first place. However, at this hearing, counsel for Mr. Conway also objected to the Court receiving the Additional Evidence as the s. 4E hearing had already commenced. He submitted that the court had to be satisfied that it was in the interests of justice for additional evidence to be received under s.4E(6) of the 1967 Act. However, in reliance on DPP v Tuite [1983] WJSC-CCA 2336, the DPP submitted that the DPP had a general power to serve Notices of Additional Evidence and that this right extended to s.4E of the 1967 Act.

15. At this juncture, it is important to note that by the time of the hearing before this Court, it became clear that the DPP does not now claim that there is a general power to serve Notices of Additional Evidence. Instead, at the hearing before this Court, the DPP’s position had changed, as the DPP agreed with Mr. Conway’s submission that the court must be satisfied that receiving any additional evidence is in the interests of justice, before it will be admitted.)

16. In any event, after hearing what were then the conflicting positions taken by Mr. Conway and the DPP, submissions, the trial judge adjourned the matter for judgement, which was given on 8 November 2023.

The wording of the judgment which is the subject of challenge

17. When giving her judgment on 8 November 2023, the trial judge accepted the DPP’s submission, in reliance on DPP v Tuite, that the State had a general power (and so without being satisfied that it is in the interests of justice) to serve Notices of Additional Evidence during a s. 4E application (albeit that the DPP now accepts that its submission on the state of the law was incorrect).

18. In its written submissions to this Court, the DPP put the matter as follows: ‘It is accepted that only such proposed evidence as is served on an accused prior to the commencement of the [s. 4E] application is admissible on the issue. Any proposed evidence served after the commencement of the [s 4.E] application can only be considered if the judge is “satisfied that it is in the interests of justice”. As a result, only the proposed evidence contained in the Book [of Evidence] and [the Notice of Additional Evidence] served on the 23rd July 2023 was available to be considered, absent a determination that it was in the interests of justice that the proposed evidence contained in the [Notice of Additional Evidence] dated the 26th July 2023 could be considered.’

19. However, because the trial judge accepted the DPP’s previous submissions (that there was a general right to consider additional evidence), Mr. Conway claims that the trial judge’s

decision, not to dismiss the charges against him arises from an error of law and was therefore made without jurisdiction and so is void and of no legal effect.

20. He therefore seeks an order from this Court quashing the trial judge’s refusal to dismiss the charges against him.

21. The DPP accepts that if the trial judge had relied on the Additional Evidence, in reaching her decision not to dismiss, then the DPP would not be resisting this judicial review.

22. However, the DPP states that while the trial judge did refer to the Additional Evidence, it is clear from her judgment that she did not rely on that evidence in making her decision. For this reason, the DPP says that there was no error of law affecting that decision to dismiss Mr. Conway’s application, and the trial judge’s decision was made within jurisdiction and is therefore valid.

Did the trial judge rely on the Additional Evidence to dismiss the application?

23. It is clear that the key issue in this judicial review is whether the trial judge did, or did not, rely on the Additional Evidence to reach her decision to refuse to dismiss the charges. To determine this issue, it is necessary to set out the relevant paragraphs from the trial judge’s judgement of 8 November 2023: ‘The chain of custody and the exhibits and the certificate of analysis: it was asserted at the first hearing that the chain of custody was insufficient in the intervening period between the first hearing on the 24th of July and the 27th of July. Notices of additional evidence were served which purport to deal with these matters. Issue was then taken by the defence with the service of additional evidence. It is of course the case that the prosecution has a wide latitude in respect of the service of additional evidence right up to and including, less ideally, sometimes during hte running of a trial, and the case of DPP v Gerard Anthony Tuite was opened to me and is authority for that proposition stretching back some time. In relation to the service of additional evidence, the serving of a notice pursuant to section 4(e) does not act as a bar on the prosecution adducing additional evidence in the view of this Court. Indeed, it is often done right up to the start of the trial or even during trial, and I accept that proposition as proffered by the prosecution.’

24. In relation to this paragraph, the DPP submitted to this Court that: ‘It is certainly clear that, in that little paragraph, the trial judge does come to the

conclusion that she is entitled to rely on additional evidence served after the commencement of the s.4(E) hearing, and as I have already conceded I don’t think that is correct in law and if that was the end of the matter, none of us would be here today because the Director wouldn’t be seeking to stand over the decision. But that has to be read in conjunction with the next paragraph [...].’

25. The next paragraph of the trial judge’s judgment was then duly opened to this Court by counsel for the DPP and this reads as follows: ‘Arguments raised in respect of the chain of evidence and the certificate of analysis should they be relevant, are matters in my view which should be dealt with at the trial and in that regard I note the decision of the Court of Appeal in Cruise v O’Donnell in [2008]. It is notable that the determination of disputed issues of law and fact remains the preserve of the trial judge, and they are most appropriate to be dealt with by a trial court on an application for dismissal. The Court confines itself to the evidence presented in the book of evidence taking the prosecution case at its strongest on the assumption that the evidence disclosed is admissible, and that is what this Court has to do in this particular case. Here there are plainly contested issues of fact requiring resolution, but which are in the view of this Court not suitable for disposal other than by the trial court and therefore, I am refusing the application in relation to the matters that have been outlined.’ (emphasis added)

26. Before interpreting these two paragraphs, it is important to have regard to the contextual background to the references to the ‘book of evidence’ and to ‘additional evidence’ in both paragraphs. In this regard, this hearing (at which judgment was delivered) on the 8 November 2023, was the third and final hearing in relation to the application to dismiss. It is relevant to note that, at the earlier hearing on 24 July 2023, counsel for the DPP purported to call a guard to give evidence and counsel for Mr. Conway made specific reference to these two categories of evidence (the book of evidence and the Additional Evidence), when he objected in the following terms: ‘Counsel for the DPP: [...] In respect of the arrest, I would call Garda Duhova to give evidence about the arrest.

Counsel for Mr. Conway: Judge, I would object to that in circumstances where this application is grounded on foot of what is contained in the book of evidence. So, I don’t have any capacity to serve further evidence unless it’s been served by way of notice of additional evidence, which would be the appropriate way in anticipation of these applications, which was done in relation to Garda Byrne. That’s why obviously we can proceed with this matter in the absence of Garda Walsh who’s the prosecuting member. I don’t think it’s appropriate to call witnesses to add further evidence that isn’t contained in the book or contained in the notice of additional evidence. (emphasis added)

27. Indeed, there are numerous other references to these two distinct categories of evidence. For example, at the hearing on 24 July 2023 counsel for Mr. Conway made the following statements: ‘There’s three aspects that I want to object to in relation to the book of evidence and also additional evidence’1 ‘if I could bring the Court to page 4 of the book of evidence’2 ‘if I could bring the Court’ attention to page 26 of the book of evidence?’3 ‘The Court will see from the list of exhibits contained at page 28 of the book of evidence’4 ‘I don’t know if the Court has a copy of the notice of additional evidence’5 ‘That’s at page 19 of the book of evidence’6 Transcript of 24 July 2023, pg. 1. ibid, pg. 1.

ibid, pg. 2

ibid, pg. 2. ibid, pg. 3. ibid, pg. 3. ‘I would object to that in circumstances where this application is grounded on foot of what is contained in the book of evidence’.7

28. Also, at the hearing on the 27 July 2023, there were further references to these two categories of evidence when counsel for Mr. Conway submitted: ‘Yes, but I’m just saying that’s not contained anywhere within the papers’ (here, apparently referring to both categories together) 8 ‘my friend is referring to a notice of additional evidence that was served yesterday’9 ‘we were served a notice of additional evidence yesterday’10

29. All of this is important background to the trial judge’s decision on the 8 November 2023, because the trial judge also separately refers, in the above extract of her judgment, to the ‘book of evidence’ and the ‘additional evidence’. For this reason, it seems clear to this Court that the trial judge’s decision was based on there being a very clear difference between the book of evidence and additional evidence.

30. With this clear distinction between these two categories of evidence as the background to her judgment, it is crucial to note that she goes on to state that she ‘confines’ herself to the evidence presented in the book of evidence, in reaching her decision.

31. It seems to this Court that the purpose of her ‘confining’ herself to the book of evidence in the second paragraph of the above extract was because in the first paragraph she had concluded that she could, if she wanted to, rely on the Additional Evidence.

32. However, this conclusion (that she could rely on Additional Evidence) does not affect the legality of her decision. This is because in the first paragraph she says that she could rely on the Additional Evidence, but in the very next paragraph, she expressly states that she is ibid, pg. 8. Transcript 27 July 2023, pg. 3. ibid, pg. 4. ibid, pg. 4. ‘confining’ herself to the book of evidence. To put it another way, the logical conclusion of confining herself to the book of evidence must be that she was not relying on the Additional Evidence. After all, if the trial judge was relying on the Additional Evidence, as claimed by Mr. Conway, there would have been no need to say that she was ‘confining’ herself to the book of evidence.

Should the judgment be set aside as it is not clear or transparent?

33. Mr. Conway also claims that even if the DPP is correct that the trial judge nonetheless chose not to rely on the Additional Evidence, the trial judge should have explicitly stated this fact. On this basis, he made oral submissions that there was an absence of clarity and transparency on the judge’s part and so claims that this is a basis for setting aside her

decision. In his written submissions, he states: ‘if the trial judge reached her conclusions based solely on [the book of evidence] she would have said so and a fortiori where, in her judgement, she expressly held that [the DPP] was entitled to adduce further evidence, by way of a notice of additional evidence [..]’

34. In relation to this argument, the DPP rejects that there is any illegality in the trial judge’s

decision such that it should be set aside, but the DPP accepts that it might have been preferrable if the trial judge had explicitly stated that she was not relying on the Additional Evidence.

35. As already noted, because of the volume of cases in that court, judgments in the Circuit Court are usually given orally, without the time to clarify and improve judgments, which judges in the High Court, Court of Appeal and Supreme Court, usually have. As a result, oral judgments in the Circuit Court (and the District Court) will, with the benefit of hindsight, always be capable of being further clarified or made more transparent. However, those judgments cannot, in this Court’s view, be overly criticised for a failure to reference submissions or otherwise clarify or make explicit matters, which are implicit.

36. In this instance, this Court does not accept that the trial judge’s decision should be set aside because of an absence of transparency or an absence of clarification, which with the benefit of hindsight, could have been added. The trial judge stated that she confined herself to the book of evidence and it is a counsel of perfection to say that she should also have stated that she was not relying on the Additional Evidence. It seems to this Court that Mr. Conway could not have been under any misunderstanding as to the basis upon which the decision was reached and this Court does not believe that oral judgments in busy Circuit Courts (or District Courts) should be subject to 20:20 hindsight regarding terms that could or should have been used.

CONCLUSION

37. For the reasons set out above, this Court finds that:

• the trial judge did not rely on the Additional Evidence when refusing to dismiss the charges against Mr. Conway;

• any incorrect statement of the law by the trial judge (in reliance on the DPP’s submissions) regarding the admissibility of evidence, did not affect the decision of the trial judge; and

• the oral judgment was sufficiently clear and transparent, given the context in which it was delivered. Accordingly, this Court rejects the application to quash the decision of the trial judge.

38. This matter will be put in for mention a week from the date of delivery at 10.45 a.m. to deal with any final orders and costs. However, on the assumption that it should not be necessary to expend costs on a further court sitting, and in order to facilitate the parties agreeing all outstanding matters, the parties have liberty to notify the Registrar if such a listing proves to be unnecessary. This is particularly so in light of the clear implication from Word Perfect Translation Services Ltd v Minister for Public Expenditure and Reform [2023] IECA 189 at para. 94, that there is an onus on lawyers to take a broad-brush approach to costs and not to engage in the inefficient use of court resources and costly ‘nit-picking’.