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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> D.P.P. v. Windle [1999] IEHC 18; [1999] 4 IR 280; [2000] 1 ILRM 75 (23rd July, 1999) URL: http://www.bailii.org/ie/cases/IEHC/1999/18.html Cite as: [1999] 4 IR 280, [2000] 1 ILRM 75, [1999] IEHC 18

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D.P.P. v. Windle [1999] IEHC 18; [1999] 4 IR 280; [2000] 1 ILRM 75 (23rd July, 1999)

BETWEEN

JUDGMENT of Mr Justice McCracken delivered the 23rd day of July 1999.

1. The background to this case may be briefly stated. The second named Respondent was charged with certain offences under the Misuse of Drugs Act 1977 and was duly furnished with the documents required to be served on him pursuant to Section 6 of the Criminal Procedure Act 1967. These included a search warrant dated 22nd April 1997 which had been issued pursuant to Section 28 of the Misuse of Drugs Act 1977 and was headed "District Court Area of Dublin Metropolitan District". It authorised a member of theGarda Siochana to enter and search certain premises and was signed "Margaret Gaffney, Peace Commissioner".

2. On the 28th of July 1998 in the Dublin Metropolitan District Court the matter came before the first named Respondent for the preliminary examination under Section 7 of the 1967 Act to take place. In the course of this hearing the first named Respondent raised the question of the validity of the search warrant, and asked that the parties argue the issue before him. He suggested that the search warrant was invalid because it did not state on the face of itthat Margaret Gaffney was a Peace Commissioner for the area encompassing the premises authorised to be searched.

3. In the course of the argument that followed, the Solicitor for the Applicant submitted that the first named Respondent had no jurisdiction to determine the validity or otherwise of the search warrant. The first named Respondent ultimately determined that the warrant was invalid, and refused to send the second named Respondent forward for trial.

4. I would emphasise that these are judicial review proceedings, and I am not concerned with whether the learned District Judge was correct in law in the ruling which he made. I am concerned purely with whether he had the power or jurisdiction to make such a ruling.

Part II of the Criminal Procedure Act 1967 deals with the preliminary examination of indictable offences in the District Court. The relevant sections are as follows:-

"(5)(1) 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 this Part.

(2) References in any enactment to the preliminary investigation of an indictable offence shall be construed as references to the procedure set out in this Part".

Section 6 then sets out a list of the documents to be served on the accused, commonly known as the Book of Evidence, and provides that copies of these documents shall be furnished to the Court. The Act then continues:-

"7(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.

(8)(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".

5. There have been a number of cases dealing with the validity of search warrants, and in reaching his decision the first named Respondent considered that he had an obligation to protect the constitutional rights of the second named Respondent, and in support of this cited the decision of the Supreme Court inThe People (Director of Public Prosecutions) v Kenny (1990) ILRM 569. In the head note to that case at page 570 it is stated:-

"Per curiam: the duty of the Courts under Article 40.3.1 of the Constitution is to defend and vindicate the rights protected therein as far as practicable. As between two alternative principles governing the exclusion of evidence obtained as a result of the invasion of the personal rights of the citizen, a Court has an obligation to choose a principle which is more likely to provide a stronger and more effective defence and vindication of the right concerned. To provide for the exclusion of any evidence obtained in breach of anaccused's constitutional rights incorporates a positive encouragement to those in authority over the crime protection and detection services of the State to consider in detail the personal rights of the citizen protected by the Constitution and the effect of their powers of arrest, detention, search and questioning in relation to such rights."

6. While this is unquestionably a correct statement of the general principles applicable, it still leaves open the question of the jurisdiction of a District Judge on the taking of depositions to make a decision as to the validity of a warrant. The taking of depositions is stated in Section 5 of the Act as being "a preliminary examination of the charge". It is not a trial of the accused, and the sole purpose would appear to 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 investigation. This seems to be of particular importance when one considers the recent case ofDirector of Public Prosecutions v Owens (unreported) in which Barrington J. delivered the principal judgment of the Supreme Court on 16th February 1999. That case decided that a search warrant is a document which may affect constitutional rights and does not speak for itself in a criminal trial. Accordingly, the Supreme Court held that a Circuit Court Judge in the course of the trial was correct in directing the jury to find the accused not guilty because there was no evidence of the state of mind of a Peace Commissioner who signed the relevant search warrant. In that case, the Peace Commissioner concerned was very elderly, and at the time of the trial was too ill to give evidence, and therefore his evidence was unobtainable. However, it is equally clear from thejudgment in that case that, had the Peace Commissioner been available and had he given evidence as to a state of mind when he issued the warrant, then the warrant could have been considered valid. What the Court was concerned with was not the validity of the warrant on the face of it, but with the evidence necessary to prove the validity of the warrant.

7. 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 named 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.

In the People (Director of Public Prosecutions) v Kenny which I have already referred to the principle was set out byFinlay C.J. at page 579 as follows:-

"I am satisfied that the correct principle is that evidence obtained by invasion of the constitutional personal right of a citizen must be excluded unless a Court is satisfied that either the act of constituting the breach of constitutional rights was committed unintentionally or accidentally, or is satisfied that there are extraordinary excusing circumstances which justify the admission of the evidence in its (the Courts) discretion."

8. I think this passage can only refer to the Court before which the trial is taking place, and my views supported by the decision of the Queen's Bench Division in R v Norfolk Quarter Sessions ex parte Brunson (1953) 1 QBD 346 in which Lord Goddard C.J. said at page 348, after setting out the history of the taking of depositions:-

"They were to take the depositions in writing, and that had to be done in the presence of a prisoner, who was entitled to cross-examine. If the provisions of that section are not complied with, the committal is bad and that is what the Court of Criminal Appeal decided inR v. Gee, R. v. Bibby, R. v. Dunscombe where, instead of taking depositions in the way prescribed by the Act, statements had been obtained from witnesses and they were read over in Court. Speaking for myself, I should have thought it would be a very good thing if something like that could be permitted because it would save an enormous amount of time, but it is not permitted, and, as the depositions had not been taken as prescribed by the Act, the Court held that the committal was bad. But no Court has suggested that, because Justices in taking depositions admit some evidence that is not admissible or hear a witness to whom, it turns out, objection could be taken on some point or other, that vitiates committal. The committal takes the place of the form of presentment by a grand jury, who could hear whatever evidence they liked or no evidence at all, and now the matter is dealt with by the Administration of Justice (Miscellaneous Provisions) Act 1933, Section 2(1), which makes a committal by Justices equivalent to a presentment by a grand jury. Therefore, so long as it is once shown that Justices have acted in accordance with the Indictable Offences Act, 1848, their committal is a good committal. Whether the evidence that has been given before the Justices will be admitted at the trial is another matter."

9. These principles appear to me to be equally applicable to the present case. It will be a matter for the trial judge on the evidence before him to determine both whether the Peace Commissioner had authority to issue the warrant, and as to the state of mind of the Peace Commissioner which she did issue it.

10. Finally, it was also argued on behalf of the second named Respondent that, because of delay in issuing these proceedings, I ought in my discretion to refuse an Order of Certiorari. There is no doubt that Order 84 Rule 21 of the Superior Court Rules provides that anapplication for certiorari shall be made promptly, and in any event not later than six months from the date when the grounds for the application first arose. This application was made only one day short of that six month period. The Applicant submits that I should have regard to the realities, and in particular that the Order which it is sought to challenge was made on 28th July, only a few days before the commencement of the long vacation. If one takes the long vacation into account, then the delay is a period of four months only. This is a discretionary matter, and I am not satisfied that the Respondents are in any way prejudiced by such delay as there may have been. Accordingly. I will set aside the Order of the learned District Judge and hear arguments from Counsel as to whether any further Order is needed.

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