The Supreme Court dismissed Fergal McNulty’s appeal against the refusal of judicial review concerning a planned retrial on drug charges. It did not decide whether the search warrant was valid or whether the evidence gathered under it was admissible. Those issues remain for the Circuit Court judge at any retrial.
McNulty had been charged with possessing MDMA and possessing it for supply, allegedly on 20 July 2002. At his July 2003 trial in Dublin Circuit Criminal Court, the defence challenged the legality of a search warrant issued by the District Court. The trial judge ruled the evidence admissible, but the jury could not reach a verdict. The Director of Public Prosecutions indicated an intention to bring the case to trial again.
After that trial, the prosecution served notices of additional evidence. They included a Garda statement saying the officer who sought the warrant had given oral evidence to the District Court judge, and a statement from a friend denying an allegation that he had brought the drugs to McNulty’s apartment.
McNulty argued that the prosecution was unfairly using the first trial to repair gaps in its evidence. He sought orders preventing the prosecution from proceeding and a declaration that he should have been acquitted at the first trial. The High Court refused that relief, and he appealed.
The Supreme Court held that the admissibility of evidence at a criminal trial is ordinarily for the trial judge to determine. It said the earlier ruling had no continuing legal effect and would not bind another Circuit Court judge. The Court also said that judge must disregard observations made in the High Court judgment about the warrant and evidence.
The Court noted the State’s undertaking that the prosecution would not repeat or rely at retrial on the earlier submission that the warrant should be presumed valid, or on the trial judge’s related reasoning. It described the warrant issues as substantial, including whether the statute required the Garda officer to give oral evidence before the District Court judge. The Supreme Court did not resolve those questions; it said they were for the judge hearing the retrial.
It also rejected the argument that deploying additional or different evidence at a second trial was, by itself, oppressive. Whether a party’s change in approach would be oppressive in particular circumstances is for the judge at that trial, the Court said. The appeal was dismissed.