The High Court has refused an application to stop the Director of Public Prosecutions pursuing a retrial of Fergal McNulty on drug charges, ruling that the issues raised about a search warrant should be dealt with by the trial judge.
Mr Justice Roderick Murphy delivered judgment on 15 March 2006. The application concerned charges of possessing MDMA and possessing it for supply, following a search of the applicant’s flat on 20 July 2002. Gardaí said they found white tablets in a cigarette box while executing a warrant issued under section 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997. The warrant related to a rape investigation at the premises.
At the first trial, held from 8 to 10 July 2003, the jury could not reach a verdict. The applicant challenged the warrant and the admissibility of evidence found during the search. He argued that the warrant did not show that the District Court judge had heard evidence on oath and was satisfied there were reasonable grounds for the search, as required by the Act. The prosecution maintained that the warrant was valid and that any admissibility issues belonged before the trial court.
The High Court examined the warrant’s wording and the signed information form. It concluded that the judge’s signed statement that the information had been sworn and that the grounds were reasonable showed statutory compliance. The judgment said the judge was satisfied there were reasonable grounds to suspect evidence relating to rape would be found at the flat. It also said the formal sworn information did not have to be separately produced to prove the warrant’s validity.
That conclusion did not resolve whether there had been information supporting the likelihood that evidence would be found at the address. The judgment noted Inspector Timothy McCarthy’s account of what the District Court judge had asked him, and said the net issue was whether such information existed.
The court held that questions about the warrant’s technical merits, possible prejudice and whether evidence should be admitted were for the Circuit Court trial judge. It said judicial review was not the appropriate route to decide those matters and refused the relief sought. The court did not order an acquittal, determine the admissibility of the seized tablets, or decide the outcome of any retrial.