Supreme Court allows appeal quashing Circuit Court order requiring criminal defendant to disclose grounds for dismissal application.

[2007] IESC 68

THE SUPREME COURT

366/04

Murray C.J

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

BETWEEN:

PATRICK PHIPPS

APPLICANT/RESPONDENT

AND

JUDGE DESMOND HOGAN AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT/APPELLANT

JUDGMENT of Mr. Justice Hardiman delivered the 20th day of December, 2007.

1. The appellant, Mr. Phipps is the defendant in a pending criminal case in which he is charged with three offences against various

provisions of the Misuse of Drugs Acts. One of these is an offence contrary to s.15A of that Act, as inserted by s.4 of the Criminal

Justice Act, 1999.

2. The applicant was brought to the District Court on foot of these charges. The charges were however struck out by that court

when the prosecution failed to produce the necessary documents on time. At a later date which does not appear with precision from

the papers before the Court, he was re-charged. On this occasion the “Book of Evidence” was duly produced and he was sent

forward for trial to the Circuit Criminal Court. The date on which this occurred, likewise, does not appear from the papers.

3. On the 9th July, 2003, the case against the applicant was listed in the Dublin Circuit Criminal Court before his Honour Judge Hogan

on foot of a Notice of Motion filed on behalf of the applicant on the 27th June, 2003. This Notice of Motion sought:

“An order pursuant to s.4E(1) of the Criminal Procedure Act, 1967 (as inserted by s.9 of the Criminal Justice Act, 1999)

dismissing all of the charges against the accused on Bill of Indictment No. DU60/02.”

4. It was stated that the application “will be grounded on the Book of Evidence served on the accused, the nature of the case and

the reasons to be offered.”

5. On the 3rd July, 2003 in the Circuit Court it was submitted by prosecuting counsel that the Notice of Motion was insufficient and

that the prosecutor was entitled to be put on notice of the specific ground upon which the application to dismiss would be based.

There does not appear to have been any formal order of the Circuit Court drawn up in respect of the proceedings on that day but the

applicant and respondent in the present proceedings seem to be at one that, as the applicant puts it, the learned judge “ruled that I

was required to give notice to [the Director of Public Prosecutions] of the grounds upon which the application would be argued in

advance of the hearing of the application”. In the affidavit of Una Duggans sworn on behalf of the prosecutor, it is said that the

learned judge “held that this was a new procedure which did not entitle the defence to ambush the prosecution as in the course of a

criminal trial and consequently the grounds for application should be set down.”

6. The applicants subsequently sought judicial review of this decision. He was granted leave to do so by the High Court (O’Donovan

J.) by order dated the 20th October, 2003 on the grounds that:

“(1) There is no requirement in law for a person charged with the commission of a criminal offence to give notice of any

ground of defence upon which he intends to rely at any stage of the criminal process save where expressly provided by

statute.

(2) That the provisions of s.4E of the Criminal Procedure Act, 1967, must be strictly construed since it is a criminal

statute and the Section makes no provision for notice of the kind which has been required in these proceedings.

(3) That the first-named respondent acted ultra vires in requiring the applicant to give notice to the DPP of the grounds

upon which he intended to rely in support of the application that he wished to make pursuant to the provision of s.4E(1)

of the Act of the 1967 Act.”

Statutory provision.

7. The said s.4E, insofar as relevant, provides as follows:

(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.”

Legislative background.

8. The Act of 1999 abolished provisions of the Criminal Procedure Act, 1967 which provided for a preliminary examination of indictable

charges in the District Court. Up to the passing of the 1999 Act 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, which were however

required to be exercised in the court of trial rather than in the District Court. The right to apply for the dismissal of the charges

pursuant to s.4E is one such entitlement. These are important rights. 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 jury persons, brings a rapid end to the defendant’s anxieties (which in

this case must be considerable since one of the charges the applicant is facing 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.

9. There is, accordingly, no doubt but that the applicant was entitled to seek the relief which he sought from the learned Circuit

Court judge. The question is whether the latter was entitled to require him to give advance notice of the grounds upon which the

application would be urged.

10. The applicant’s rights arise from the statutory provision already quoted. This provision requires that the prosecutor be put on

notice of the defendant’s application to dismiss but does not itself require that notice of the grounds of this application be given. The

statute does not of course exclude this possibility either. The applicant’s case is put in this way: he has an undoubted right to have

his motion to dismiss determined and there is no statutory authority for the proposition that he has to give advance notice of the

grounds of his application. The respondent, however, argues that the requirement to give notice of the application would be

“meaningless” unless it (that is, the notice) incorporated the grounds of the application. It is also argued that the learned judge was

entitled to organise the business in his court in the most efficient manner as he sees fit and that this extends to a power to order a

statement of grounds.

The High Court decision.

11. The High Court (Quirke J.) in a judgment delivered the 27th May, 2004, referred to a number of cases including Hughes v. Garavan

and the DPP (unreported, Supreme Court, 17th December, 2003). There, McGuinness J. had endorsed the following statement from the

High Court judgment of Kelly J.:

“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”.

12. I respectfully agree that the availability of a pre-trial examination of the sufficiency of the evidence against the defendant, now

by virtue of s.4E, is “an important safeguard to ensure that an accused is not put on trial for offences where there is no evidence

against him.”

13. In the Hughes case, submissions, evidently substantial ones, were made to the learned District Justice during the preliminary

examination on behalf of the applicant. The prosecution did not make submissions but sought an adjournment. Between the date on

which the submissions were made and the adjourned date a “Notice of Additional Evidence” was served purporting to comprise

additional testimony as to the value of the drugs in question in that case. On judicial review it was held that:

“Once the District judge had passed on to hear submissions under s.7 it was not open to him to receive the additional

evidence which purported to be served under s.6(4) or to take it into account in reaching his decision to return the

accused for trial on this particular charge… there is, I consider, also some weight and logic in the argument put forward

by Mr. Gageby that the right to make submissions under s.7 would be rendered meaningless, and possibly

counterproductive, if the prosecution is to be permitted simply to mend its hand by producing additional evidence at that

stage.”

14. It is important to remember that Hughes was decided before the provisions of s.4E had come into force and related to the older

provisions of the 1967 Act. Nevertheless the case is a useful one because of its emphasis on the importance of a safeguard such as

that provided by s.4E. I do not believe that it is necessary for the purpose of this case to comment on the last passage from Hughes

cited above. It is however quite clear that a trial judge has an inherent jurisdiction to refuse to permit the adduction of additional

evidence, if to do so would be unfair or would tend to frustrate the defendant’s entitlements.

15. In this case the learned trial judge proceeded to make further finding about the procedure required by the 1999 Act. He pointed

out (p.8 of the judgment) that an accused person under the preliminary examination system was “entitled to make an application in

the District Court that he be discharged as to the offence under examination on the ground that the evidence before the District

Court did not disclose a sufficient case to put him on trial for the offence with which he had been charged”. As far as I am aware,

there is no reported case under the 1967 Act regime where a defendant exercising this right was compelled to give advance notice of

his submissions. The statutory provision under the present law provides a right to apply to the trial court to dismiss one or more of

the charges preferred. It goes on to provide, at subsection (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.”

16. At p.9 of his judgment the learned trial judge asked:

“Does this place an onus upon the accused person to prove that the evidence upon which the State will rely in support of

the charge preferred against him is insufficient to establish a prima facie case?”

17. Quirke J. answered his own question as follows:

“I think not. Every person charged with the commission of a criminal offence within this jurisdiction enjoys the

constitutional right to a trial “in due course of law” (Article 38.1 of the Constitution). Included in that right is the right to

be presumed innocence of the offence charged unless and until convicted on the evidence beyond a reasonable doubt.

The onus of proof of the commission of a criminal offence rests with the prosecution and never transferred to the persons

accused.

The provisions of the 1967 Act as amended do not affect and in particular do not diminish the right of an accused person

to the presumption of innocence at all times within the criminal trial process (including the procedures preliminary to the

trial itself).

Accordingly, s.4E of the 1967 Act must be construed as conferring upon a person charged with an indictable offence the

right to apply to the trial court for the purpose of having one or more of the charges preferred against him or her

dismissed.

Thereupon the prosecutor is required to satisfy the trial court that the evidence upon which the State will rely is

sufficient ‘ to put the accused on trial in respect of the charge to which the application relates.’

This applies notwithstanding the fact that the application to dismiss pursuant to s.4E will invariably have been made by or

on behalf of the accused person.”

17. A little later, on p.10 of the judgment, the learned trial judge having considered the nature of an application for a “direction” at

the end of the prosecution case, said:

“An application made pursuant to s.4E is of a similar character. The onus of proof of guilt remains unaffected. It rests

upon the prosecution at all times.”

18. I respectfully agree with the analysis of Mr. Justice Quirke. It is based, as his judgment makes clear, on the fundamental right to a

trial in due course of law and on the significance of the presumption of innocence in that “due course”.

19. Accordingly, the position is that there is no express power to order a defendant applying for dismiss to give advance notice on the

grounds upon which he relies, and no statutory obligation on him to give such notice. The Director strenuously argues that there is

however an implied entitlement to require notice of the grounds of the application. This arises, he says, in one or two alternative

ways. Firstly he contends that it arises from the requirement to give notice: this, he says, should be deemed to include a requirement

to give notice of the grounds of the application, and not merely of the application itself. Secondly, and quite separately, he argues

that there is a power to require the defendant to give notice of the grounds of his application to dismiss as part of the inherent

powers of the judge to manage proceedings in his own court.

20. I have no doubt that any trial judge, sitting with or without a jury, is entitled to exercise a wide, inherent, and discretionary

jurisdiction to control the proceedings in his court. But the nature of this jurisdiction will vary with the nature of the proceedings

before him. The learned trial judge in his judgment went on to quote the English case of Ashmore v. Lloyds [1932] 1 WLR 446 referring

to the practice of the (U.K.) Commercial Court. I have no doubt that this passage, and the conclusions he draws from it (at pp12-16

of the judgment) constitute a lucid exposition of the power of a judge in civil cases. Specifically, it may be perfectly proper for a

judge in a civil case to order a party, be he plaintiff or defendant, to state precisely what his case is in advance. In the Commercial

Court here, this extends to a power to order the production of witness statement of evidence. This is what is envisaged in the

learned trial judge’s citation from the English case mentioned above:

“In the Commercial Court and indeed in any trial court it is the trial judge who has control of the proceedings. It is part of

his duty to identify the crucial issues and to see that there are tried as expeditiously and as inexpensively as possible. It

is the duty of the advisers to the parties to assist the trial judge in carrying out his duty. Litigants are not entitled to the

uncontrolled use of a trial judge’s time. Other litigants await their turn. Litigants are only entitled to so much of the trial

judge’s time as is necessary for the proper determination of the relevant issues.”

21. With great respect, it is not part of the duty of the advisers to a defendant in a criminal case to take part in a form of case

management which, however justifiable or even commendable in civil proceedings may involve his client in disclosing legal or factual

material which he does not wish to disclose, or disclose at that time. A criminal defendant, like a defendant in any form of proceeding,

is of course subject to the coercion of the facts: the precise nature of what can be proved against him may force various moves and

disclosures upon him. But, because he is entitled to a trial in due course of law, he is not to be obliged to make any other form of

disclosure. If the statute itself expressly required such a disclosure of him the question would arise as to whether it was consistent

with Article 34 of the Constitution. But that does not arise here. The principle I have just enunciated, the right to a trial in due course

of law, is in my opinion quite strong enough to preclude the interpretation of a statute which does not say so expressly as implying a

power to require disclosure on the part of a defendant in a criminal action.

22. It must also be borne in mind that the prosecution, who have full access to the facts of this case as the gardaí see them and the

Garda summary of the case and recommendations, have decided to bring certain charges against the applicant. They have had their

Book of Evidence settled by counsel and, presumably, had proofs advised by Senior Counsel. All this makes it unlikely in the extreme

that they will be in any way embarrassed by the need to demonstrate how their evidence amounts to a sufficient case to put the

applicant on trial. If any such embarrassment did arise, no doubt they could apply to the learned trial judge for an adjournment and, if

appropriate, he would grant this request. Like the defendant, the prosecution are, of course, subject to the coercion of the facts of

the individual case and if there is some inherent problem in the case they may be unsuccessful on the motion. But they would have to

encounter this difficulty any way, at the close of the prosecution case at a trial. Under the s.4E procedure, moreover, they have the

right of appeal.

23. For these reasons I would not consider that s.4E, or the inherent jurisdiction of the Court, provides a jurisdiction, expressly or

impliedly, to require the defendant to give advance notice on the grounds of the present application. I would accordingly allow the

appeal and quash the order of the learned Circuit judge requiring such disclosure.