Recent Supreme Court Judgments

April 2015

The Exclusionary Rule:

DPP v J.C [2015] IESC 31

Unreported judgments:

O’Donnell J

Clarke J

MacMenamin J

Dissenting:

Murray J

Hardiman J

McKechnie J

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Damache v DPP [2012] IESC 11

Section 29(1) of the Offences Against the State Act, 1939 (as inserted by s. 5 of the Criminal Law Act 1976) found to be repugnant to the Constitution.

Judgment of the court delivered by Denham CJ

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January 2011

DPP v Leipina and Suhanovs

[2011] IESC 3

Supreme Court (Macken, Finnegan, McKechnie JJ) 2 February 2011

Judgment delivered by Finnegan J

International Insurance Card – Vehicle Bearing Irish Registration Plate – ss 56, 58, 62, 66, 78 Road Traffic Acts

Facts:

An Irish registered car was stopped at a Garda checkpoint. A Latvian insurance company had issued its certificate of insurance. The Latvian company was not a member of Motor Insurers Bureau of Ireland.

Proceedings in the Lower Courts:

The Appellants were convicted in the District Court conviction under s.56(1)(3) Road Traffic Act 1961 as amended. The conviction was appealed to the Circuit Court. The learned Circuit Judge posed the following questions to the Supreme Court by way of consultative case stated:

a)    Whether the vehicle in question is covered for use in Ireland under the International Motor Insurance Card (hereinafter called “Green Card”) system;

b)    Whether, on the charge before me, a policy of insurance attested to by way of the Green Card for a vehicle bearing an Irish registration plate may be a defence to such a charge.

 

Held (per Finnegan J):

  1. The Green Card is not a certificate of insurance. It is a device by which a vehicle, registered in one state and visiting another, is deemed to be insured. Compensation is provided to an injured party by the Motor Insurers Bureau of Ireland who recoup the amount from the foreign insurer who issued the Green Card or the Bureau of the country in which the vehicle is registered.
  2. The answer to both questions posed in the case stated is: No.

Significance of the Case

The Green Card system does not operate as a policy of insurance per se. An Irish registered vehicle can only be insured by an insurance company registered with the Motor Insurers Bureau of Ireland.

Click to Access Judgment.

Reporter: Brian Storan BL

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AP v DPP

[2011] IESC 2J

Supreme Court (Murray CJ, Denham, Hardiman, Fennelly, Finnegan JJ) 25 January 2011

Judgments delivered by Murray CJ, Denham, Hardiman and Fennelly JJ

Multiple Jury Trials – Whether Fourth Retrial Abuse of Process – Judicial Review – Extending Arguments at Hearing beyond Grounds Pleaded

Facts

The Appellant was charged with 14 counts of indecent assault, offences alleged to have occurred between 1974 and 1978, beginning when the complainant was 8. The complaint was first made in 1999. The Appellant was put on trial in Waterford Circuit Criminal Court on three occasions in 2006. On each occasion the jury was discharged as the complainant had given inadmissible and prejudicial evidence. The Appellant sought an order by way of judicial review prohibiting the fourth trial on the grounds that it would amount to an abuse of process, and a breach of his constitutional right to a fair trial.

A letter was alleged to have been written by the complainant to the appellant, prior to the first trial demanding money in return for not proceeding with the case. However neither the question of delay or of the letter were mentioned in the grounds on which leave to seek judicial review was granted. Furthermore, no attempt was made to amend or extend those grounds.

 

Proceedings in the Lower Courts

In the High Court McCarthy J refused to prohibit a fourth trial. He distinguished the decision of the Supreme Court in D.S. v Judges of the Cork Circuit and the DPP [2008] 4 I.R. 379, because that case was concerned with successive disagreements by a jury after a complete trial. He also held that this case concerned more serious offences than in DS and that there was no specific prejudice or any unavoidable risk of a fair trial. McCarthy J considered the arguments relating to delay and the alleged letter from the complainant.

Arguments of Counsel

Counsel for the Appellant emphasised his reliance on the cumulative effect of the delay, the  alleged letter, stress and anxiety and the fact that there had been three previous attempts at a trial. Counsel submitted that the delay and the letter were in fact before the court and should be considered.

Counsel for the Respondent argued that the decision whether to proceed with a fourth trial was primarily a matter for the Director, who had knowledge of the relevant facts, is an independent officer and who had taken the view that there is a strong public interest in the prosecution of these offences. Counsel submitted that the issue of delay and the letter were not properly before the court.

Held: (per Fennelly and Denham JJ)

1.     A court is limited in a judicial review to the grounds ordered for the review on the initial application, unless the grounds have been amended. In this case the grounds for review were limited, essentially that a fourth trial would be an abuse and unfair, and were not amended. The issues of delay and the letter allegedly sent by the complainant were not before the court and the learned High Court Judge erred in considering them.

2.     A court would be slow to intervene in the exercise of the DPP’s function in initiating prosecutions, but would intervene if necessary to protect constitutional rights and any relevant aspect of the public interest, including the due process of the trial.

3.     A fourth trial may not per se be a breach of a trial in due course of law. There is no rule under statute law, common law or the Constitution, which limits the number of prosecutions, or retrials, which may occur. Each case requires to be considered on its own facts to determine whether, in all the circumstances, a further prosecution would be constitutional.

4.     The Appellant failed to discharge the burden upon him to show that it would be a breach of his right to due process in the sense that it would be oppressive to put him on trial for a fourth time, having particular regard to the fact that the case had not gone to the jury in any of the previous trials.

5.     (Per Murray CJ) The grounds upon which judicial review is sought should be set out clearly and precisely. If at the leave stage it appears to the High Court that the grounds could or ought to be stated with greater clarity and precision then any order granting leave should specify the ground or relief in such terms.

6.     Where additional arguments arise during a judicial review hearing, the High Court may permit these matters to be argued, especially if the respondents consent, but the applicant should seek an order permitting any extended or new ground to be argued.

7.     (Per Hardiman J) There were, or might have been, substantial issues both of delay and issues arising from the alleged letter. However although the question of delay and of the letter was raised by the appellant’s solicitor in his affidavit, neither question was reflected in the grounds on which leave to seek judicial review had been granted. Therefore, they could not be considered.

Significance of the Case

There is no numerical limit on the number of prosecutions which may be brought by the DPP in respect of the same charges. Practitioners should note that in judicial review cases, the definition of the issues before the reviewing court at the leave stage is crucial and grounds where leave was not granted will not be entertained. There is the strong indication, at least from Hardiman J that had the leave stage been approached in a different way, another outcome might have been reached.

Link to Judgments:

Denham J:

Fennelly J:

Murray CJ:

Hardiman J

Reporter: John Cleary BL


February 2011

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DPP v Alphonsus Connolly

[2011] IESC 6

Supreme Court: Murray CJ, Hardiman J, Fennelly J, Macken J, Finnegan J (nem. diss)

Judgment delivered by Fennelly J, 15 February 2011

S.15A Misuse of Drugs Act 1977 – Value of drugs seized – Evidence of purity given on basis of ‘general range’ of purity of other powders

Facts:

The Appellant was arrested in possession of 10 packages containing approximately one kilo each of white powder, which he admitted to the Gardai contained amphetamine. The Appellant was charged with offences under s.15A and s.15 of the Criminal Justice Drug Trafficking Act 1996. A conviction under s.15A required that the drugs had a market value of €13,000 or more. The Appellant pleaded guilty to s.15, but not guilty to s.15A. Gardaí gave evidence estimating value at €145,755, using a price of €15,000 per kilo, which assumed at least 10% concentration of amphetamine. A forensic scientist, Dr. Casey, gave evidence that she had analysed five of the packs and found them to contain a white powder which contained amphetamine.

On cross examination, Dr Casey said that the analysis of the sample of five packages was carried out in accordance with accredited laboratory procedure, which was routinely to analyse half of the packs. She could say with 100% certainty that the five packs contained amphetamine and with 99% certainty that at least seven of the packs contained amphetamine. She accepted that she had not examined the concentration of amphetamine in the packages. She gave evidence that the range within which amphetamine purities ‘generally fall between is maybe 10 and 40%’.  She accepted that a 1% concentration of amphetamine would trigger the test.

Proceedings in the Lower Courts

The Court of Criminal Appeal emphasised that the burden remained on the State to satisfy the jury beyond reasonable doubt as to the market value of the drugs. The Court held that there was no principle in law requiring every package to be individually analysed. The Court also noted that a purity of 10% would place the value at approx €70,000, but a purity of 1% would put the value at approx €7,000. The Court held that there was evidence to go to the jury from which it could accept or reject this evidence and it was open to the jury to find that the quantity of the drug present in each pack was at least 10%.

Held:

1.     There was no reason to assume that Dr Casey’s statistical analysis was incorrect, and so the Court proceeded on the assumption that at least seven packs contained amphetamine. Even if limited to the five tested packages then the €13,000 threshold would be comfortably met, provided that the purity was at least 10%

2.     Proof of value is an essential ingredient of the offence under section 15A. The ingredient of value must be proved to the satisfaction of the jury beyond reasonable doubt. The words used by Dr. Casey in evidence (‘generally’ falling within a particular range) cannot be taken to mean more than that there was probably 10% to 40% amphetamine present. Probability is not enough.

3.     The proof of value is an objective matter. In the present case, there is nothing to prove value except the scientific evidence combined with that of the arresting Garda. The Court did not exclude, in other circumstances, that such evidence combined with other non-scientific evidence could be considered sufficient to allow the case to go to a jury.

4.     It was not sufficient for the prosecution to prove the mere presence of amphetamine and to rely on an unexplained range of values which generally applies without evidence which addressed the extent to which there are cases outside the range. This left a gap in the prosecution evidence. The case should have been withdrawn from the jury.

Significance of the Case

The case could have major implications for s.15A prosecutions. The State may in many cases be obliged to combine Garda opinion evidence with quantitative as well as qualitative analysis of the drugs in order to prove value. Accused persons in possession of poor quality drugs may benefit from falling without the terms of s.15A. However, it may be a double edged sword as quantitative analysis could well have the effect of increasing the purity level, and hence value, from the estimate.

Link to Judgment:

Click to access Judgment.

Reporter: John Cleary BL

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January 2011

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Thomas Olsson v MJELR

[2010] IESC 61

Supreme Court (Murray CJ, Fennelly J, Macken J, O’Donnell J, MacMenamin J) nem. diss

Judgment delivered by O’Donnell J, 13 January 2011

European Arrest Warrant Act 2003 – Sufficiency of AG’s scheme for EAW Act – Surrender in case where formal charge not yet made in requesting country

 

Facts

The surrender of the appellant was sought so that he could be prosecuted in Sweden for four offences of robbery and arson. The warrant was endorsed on 19December 2006 and executed on 5July 2007. The Appellant objected to his surrender on two main grounds:

1.     That the AG’s scheme was an ex gratia discretionary scheme and as such did not satisfy the requirements of the 2003 Act as regards legal representation.

2.     That a decision to prosecute him had not been made in Sweden and that he was being sought for the purposes of the investigation of offences.

The Appellant was unsuccessful in the High Court (where he argued slightly broader grounds on the first point).

 

AG’s Scheme

Article 11.2 of the Framework Decision provides for a right of representation; and then only in accordance with the national law of the executing member state.

S.13 of the EAW Act 2003 provides that on arrest a person has a right to be informed of his right to obtain, or be provided with, professional legal advice and representation.

The existence of a right to legal assistance in EAW cases was accepted by the respondent.

Solicitors for the AG gave evidence that if there was a residual discretion not to follow a Court’s recommendation regarding the scheme, that discretion was only every exercised in favour of the respondent in EAW cases.

Surrender for questioning

S. 21A (1) of the EAW Act provides that the High Court shall refuse to surrender a person if it is satisfied that a decision has not been made to charge the person or try him for the offence. S.21A (2) provides that the issuing of a warrant creates a presumption that this decision has been reached until the contrary is proved.

It was not disputed that the Appellant would not be charged until after he had been interviewed by the Swedish authorities. The Appellant’s Swedish lawyer submitted an affidavit to the effect that the Appellant was suspected of committing serious crimes, but that the decision to charge had not been made. An affidavit from the Swedish prosecutor indicated that the decision to charge had been made, but that the physical presence of the accused was necessary for the laying of formal charges.

Held: dismissing the appeal (per O’Donnell J, nem.dis):

1.     The  Attorney General’s Scheme operates by the making of a recommendation by the court which the Attorney General almost always follows, although he or she is not obliged to do so. Application of Woods [1970] I.R. 154 considered.

2.     Since in EAW cases, there is no residual discretion on the part of the Attorney General, the provision of legal services in such cases are properly described as being provided as of right.

3.     Cogent evidence is required to raise a genuine issue as to the purpose for which a warrant has been issued. The surrender of the person for the purpose of prosecution requires that the decision to prosecute not be contingent on the outcome of further factual investigation. That does not preclude the pursuit of any continuing investigation into the circumstance of the offence. Minister for Justice v. McArdle [2005] 4 I.R. 260 considered.

4.     The words “charge” and “prosecution” in the Act should only have the meaning assigned to them in the Irish criminal justice system. A purposive approach should be had with regard to other legal systems. Re Ismail [1999] A.C. 320 and Dundon v. Governor of Cloverhill Prison [2006] 1 I.R. 518 considered.

5.     The “decision to charge and try” need not be irrevocable and it need not be demonstrated by the requesting state. A court may refuse to surrender where no decision has been made to charge or try.

6.     A “decision” for the purposes of investigation alone is insufficient. However, in the instant case it was clear that Sweden intended to bring proceedings against the Appellant.

7.     In the circumstances the High Court was entirely correct to conclude that there was a clear intention to bring proceedings within the meaning of s. 10 of the Act, and that the Appellant was not being sought solely for the purposes of an investigation.

Significance of the Case

The Court has affirmed a broad purposive approach taken to the interpretation of fundamental legal concepts in the Act of 2003, in line with the principles of mutual confidence and recognition. The issue of an arrested person’s right to legal aid under the AG’s scheme has now been clarified.

Link to Judgment:

Click to Access Case Report.

 

Reporter: John Cleary BL

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November 2010

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Byrne -v- DPP[2010] IESC 54

17 November 2010

Supreme Court:Fennelly, Finnegan, O’Donnell JJ.

Facts:

1.     The accused was charged with s.2 assault and s.2 criminal damage arising out of an incident on 7th April 2004 in a Centra  shop where he was alleged to have thrown items and been verbally abusive  to staff. The accused was arrested on the scene by Gardaí. Witness testimony of Gardaí and the staff comprised the bulk of the evidence against the accused. The shop was equipped with a CCTV system which allowed the printout of still images but not the downloading of video to DVD. The complainant printed out 8 still images which were given to the prosecuting Garda.

2.     On the 26th May 2004, the solicitors for the Applicant wrote to Gardaí seeking, inter alia, any video evidence, relying on the SC decision in DPP v Braddish.  The Gardaí furnished copies of the 8 still images. The solicitors then sought a copy of the video from which the stills had been taken. The Garda responded on 10th August 2004 that there was no CD burning facility on the system and “arrangements are being made to have the images transferred for viewing”. On the 10th February 2005 however, the Gardaí informed the solicitors that the footage was “no longer on the hard drive”.

3.      The Applicant brought judicial review proceedings to prohibit the trial on the basis of the authority in DPP v. Braddish. During the proceedings evidence of the Gardaí as to the steps taken to secure the evidence was not challenged either by replying affidavit, or by cross-examination.

Held,

Dismissing  the Applicant’s appeal against the refusal of the High Court to prohibit the trial,

per O’Donnell J [nem diss]:

1.     Other than the very straight forward type of Braddish case [where the missing CCTV footage which had been viewed by the Gardaí not only showed the incident alleged to constitute the offence, but was the basis upon which the accused had been identified],something exceptional will be required for the Superior Courts to intervene and prohibit a trial, particularly on the basis that evidence is sought to be adduced (in the case of video stills), or is not available (in the case of CCTV evidence itself). The Trial Judge retains a discretion to exclude evidence if its admission would be unfair to the accused.

2.     This was not a Braddish type case as there was witness testimony and the Applicant was arrested at the scene. The Applicant failed to engage with the facts of the case – not for court to speculate as to how the missing evidence would help his case.

3.     The duty to seek out and preserve evidence, is one which must, on all the authorities, be interpreted realistically.

4.     The fact the Gardaí had never had the particular evidence in their possession, but made efforts to obtain it, is relevant in the assessment of the case.

Obiter:

1.     A substantial part of the High Court Judicial Review lists and Supreme Court appeals involving two lines of authority, delay and missing evidence cases, can be traced back to an observation in State (O’Connell) v. Fawsitt that JR is the appropriate remedy to an anticipated trial on indictment. The court questioned whether this is “necessarily so”.

2.      The court questioned whether the appropriate test for prohibition of a pending trial in a court established under the Constitution is the existence, on the balance of probabilities, of a “real risk” of an unfair trial, but left the question open for further consideration.

3.     The Court noted State (O’Connell) v. Fawsitt expressly limited its decision to the case of trial on indictment, while accepting that in summary trials, an application to the Trial Judge to dismiss on grounds of delay might be an equal or alternative remedy. The Court held the same must apply to missing evidence cases.

4.     The Court noted that this remedy would not only be an alternative, but speedier, cheaper, and would allow the TJ to determine the issue of the fairness of the trial. The court noted that “it is perhaps desirable to give consideration to whether at least in the case of summary proceedings such an application would not be a preferable procedure.”

John Cleary BL

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December 2010

Minister for Justice, Equality and Law Reform v Tighe

[2010] IESC 61

Supreme Court (Murray CJ, Denham, Hardiman JJ) 21 December 2010

Judgment delivered by Hardiman J

European Arrest Warrant Act 2003 – Correspondence – ‘Ticked box’ offences – UK Offence of Cheating the Public Revenue – Conspiracy

 

Facts

The surrender of the appellant was sought so that he could be prosecuted in the UK for four offences, being three counts of conspiracy to cheat the public revenue contrary to s.1(1) of the Criminal Law Act 1977 and one count of cheating the public revenue contrary to common law. The issuing judicial authority marked “fraud” and “money laundering” in the boxes provided for categories of offence coming within Article 2.2 of the Framework Decision on the warrant, and therefore being offences in which no proof of double criminality was required (‘ticked box’ offences). The warrant also indicated that the offence of conspiracy was not covered by the marking of the boxes referred to, and therefore would require proof of double criminality.

Proceedings in Lower Courts

In the High Court ([2009] IEHC 33), Peart J held that correspondence must be established in regard to the offence of conspiracy. Under UK law conspiracy to commit an offence is provided for by s.1(1) of the Criminal Law Act, 1977. There is no such equivalent provision in this jurisdiction, but the existence of the common law offence of conspiracy here is sufficient to satisfy correspondence for conspiracy.

Held: (per Hardiman J):

1.     The EAW Act of 2003 has introduced a novel system whereby a list of offences has been created where double criminality need not be found in Article 2.2 of the Framework Decision. Accordingly a significant amount of detail, including the nature of the offence, its classification under the law of the issuing state, the circumstances of the offence, and its penalties are required to be stated on the warrant. MJELR v. Desjatnikovs [2009] 1 IR 618 approved.

2.     The offence of conspiracy to defraud the public revenue does not correspond to an offence in Ireland. The offence would be unlikely to meet the requirements of Irish law that a criminal offence be certain and specific in its definition. DPP v Cagney and Mcgrath [2008] 2 IR 3 considered, Attorney General v Hilton [2005] 2 IR 374 approved.

3.     There is no general offence of conspiracy at common law, it is criminal only in the context of a specific agreement to commit a specific unlawful act.

4.     It is uniquely for the issuing state to say whether and if so where in the list of actions in the Framework decision the particular offence is to be found. In the instant case, it was certified in the warrant that three of the four offences charged were within the list of criminal conduct in the framework decision, and later in the warrant, that they were not (as conspiracy was an element of the first three charges and later certified as not being within Article 2.2.) This was a serious internal conflict in the warrant. Correspondence would need to be established for the conspiracy charges, however, nothing in the warrant aimed to establish dual criminality. Correspondence on the particular charge could not have be established in any event. Attorney General v Hilton [2005] 2 IR 374 applied.

5.     The fourth charge of Cheating the Public Revenue was a substantive offence which on the warrant claimed to come within the ambit of “fraud” in the list of criminal offences in article 2.2 of the Framework Decision. However the warrant failed to provide enough detail as to the circumstances in which the offence was alleged to have been committed. It is also a charge which had previously been held not to correspond to an offence in this jurisdiction (see Hilton above). Accordingly surrender was also refused on this charge.

Significance of the Case

Practitioners in the EAW list will be interested to note that the very common “belt and braces” approach of issuing authorities to claim that an offence is within the Art 2.2 list of offences and also that it corresponds to an offence in this jurisdiction has been severely questioned by the Supreme Court. Where such an approach is taken, it appears that correspondence will need to be established in the warrant.

Reporter: John Cleary BL

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DPP (Lavelle) v Paul McCrea

[2010] IESC 60

Supreme Court (Murray CJ, Hardiman, Fennelly, Macken, Finnegan JJ) 9 December 2010

Judgment delivered by Hardiman J

Persons in custody – right of access to a solicitor – statutory demand for breath sample

Facts:

McCrea arrested on suspicion of drunk driving. He was brought to Blanchardstown Garda Station, where he was Sgt Synnott made a demand for a breath sample in the Intoxyliser room. Immediately after the making of the demand, Mr McCrea asked to see a solicitor. Sgt. Synnott refused his request indicating that he could not see a solicitor until after he had provided the sample. Sgt. Synnott mistakenly believed that only one demand for a sample was possible under the legislation and that once she had made the demand, she could not stop the process. Mr McCrea was subsequently charged with refusing to provide a breath sample, contrary to s.13 of the Road Traffic Act 1994 (as amended).

Proceedings in the Lower Courts

In the District Court, Judge Watkin dismissed the charges against Mr McCrea. She held that under Treatment of Persons in Custody Regulations 1987 and the Notice of Rights as communicated to Mr McCrea, he was entitled to consult a solicitor at any time. She accepted that his refusal to provide a sample may have been a consequence of this refusal of this right. The prosecution appealed by way of case stated to the High Court. Edwards J in dismissed the Appeal.

Arguments of Counsel

The prosecution appealed High Court decision to the Supreme Court. Their argument in the Supreme Court was restricted to two points. First, that the refusal of access to a solicitor, even if it was mistaken, was reasonable. Secondly, that a refusal of the right to access to a solicitor at the time the request was made was reasonable even if the Garda had known that a second demand for a sample would have been possible after legal advice was taken.

Held (per Hardiman J):

1.     The right of access to a solicitor is one of reasonable access, not instant access. (DPP v Madden [1977] IR 336 considered)

2.     What the Gardai tell a suspect about his rights is relevant for consideration of the reasonableness of a request for access to a solicitor and is also relevant to a refusal of such a request. In this case, the Gardaí had told Mr McCrea that he had a right to consult a solicitor at any time while at station, based on the Custody Regulations 1987.

3.     The court declined to consider the scope of the constitutional right of reasonable access to a solicitor and whether it applies to a person arrested solely for purpose of a breath test. The case was to be considered on its own facts and  on the Custody Regulations.

4.     On the specific facts of this case, the District Court Judge was entitled to make the following findings: that Mr McCrea was entitled to rely literally on what the Gardaí had told him; that a solicitor’s advice could have been of benefit to Mr McCrea; and that Mr McCrea had not had reasonable access to a solicitor.

Significance of the Case

The Court determined the case narrowly on its own facts. It does not represent any significant sea-change in the right to access to a solicitor. However, it does suggest that where a District Judge is minded to dismiss a case on the grounds of a refusal of reasonable access to a solicitor, then the Superior Courts are unlikely to interfere with that dismissal.

Reporter: John Cleary BL


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