The High Court has quashed a man’s conviction for possessing heroin for sale or supply, finding that the District Court judge was not entitled to take judicial notice of regulations that formed part of the definition of the offence but had not been proved at trial.
The judgment, delivered by Mr Justice John MacMenamin on 14 July 2010, concerned a judicial review of a District Court conviction. The applicant had been charged with possessing diamorphine (heroin) at the North Circular Road, Dublin 1, on 24 October 2008, for the purpose of selling or supplying it to another. He pleaded not guilty.
At the end of the prosecution evidence, the applicant’s solicitor sought a direction that there was no case to answer. The submission was that the prosecution had not proved the Misuse of Drugs Regulations 1988 and the 1993 amendment regulations. The District Judge adjourned the matter for legal submissions, then refused to reopen the prosecution case. He nevertheless took judicial notice of the regulations, relying on the Supreme Court’s decision in DPP v Collins, and convicted the applicant. He sentenced him to three months’ imprisonment.
On judicial review, the applicant argued that the regulations created the offence and were an essential part of the prosecution case. The respondents submitted that the failure to tender them was not fatal and that the District Judge could take judicial notice of them.
Mr Justice MacMenamin distinguished Collins, which concerned regulations used as evidential proof, from regulations that define an offence. He relied on authorities including DPP v Cleary, which he said supported the requirement to prove the relevant regulations in a criminal prosecution. The judge found that the regulations at issue defined the offence and were not merely routine or evidential material. Taking judicial notice of them in the absence of formal proof was, he held, an error in excess of jurisdiction and therefore open to judicial review.
The High Court granted the relief sought and quashed the conviction. It declined to remit the matter to the District Court, observing that the applicant had already served at least part of his sentence and was on temporary release. The court made no order for remittal.