Neutral Citation No. [2004] IEHC 376 
THE HIGH COURT 
JUDICIAL REVIEW
[2004 No. 551 J.R.]
BETWEEN
EAMONN CRUISE
APPLICANT
AND
JUDGE FRANK O’DONNELL AND THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTS
JUDGMENT of Mr. Justice Quirke delivered the 8th day of December, 2004.
By Order of the High Court (McKechnie J.) dated 5th day of July, 2004 the applicant was given leave to apply by way of Judicial Review for an order quashing a ruling of the first named respondent made on 11th May, 2004. The ruling related to an application made pursuant to s. 4E of the Criminal Procedure Act 1967 (as inserted by s. 9 of the Criminal Justice Act 1999). The first-named respondent held that he had no jurisdiction under the said s. 4E to decide on the validity of a search warrant. The applicant was also given leave to seek certain other reliefs ancillary to the substantive relief and consequential thereon. 

FACTUAL BACKGROUND
1.	On 18th April, 2003 the applicant was charged before the District Court with the commission of seven offences contrary to the provisions of the Misuse of Drugs Act 1977.
2.	Having been served with the Book of Evidence the applicant was returned for trial to the Dublin Circuit Criminal Court.  Proceedings have come before that court on a number of occasions and have been adjourned from time to time for procedural and other reasons.
3.	On 30th March, 2004, an application was made on behalf of the applicant to the first named respondent sitting as a Judge of the Dublin Circuit Criminal Court for an Order pursuant to s. 4E of the Criminal Procedural Act 1967 (as amended) dismissing the charges preferred against the applicant.
The grounds relied upon on behalf of the applicant was that the Book of Evidence failed to disclose any or any admissible evidence that the drugs which were the subject of the charges had been seized lawfully by the investigating members of An Garda Síochána since the search warrant requested by and issued to the prosecuting Gardaí failed to identify on its face the premises sought to be searched.  
It was submitted that the warrant was accordingly invalid, void and of no effect.  It was contended on behalf of the applicant that the Book of Evidence served upon the applicant failed to disclose any admissible evidence in support of the charges preferred against the applicant and that accordingly there was not a sufficient case to put the applicant on trial in respect of the charges preferred against him and that the court should dismiss those charges.  
4.	The first named respondent sought submissions from the parties as to his jurisdiction to hear and determine the applicant’s application. Having received such submissions he made a ruling on the 11th May, 2004, that the validity of a search warrant was a matter which fell to be determined by the trial judge during the course of a trial and was not an appropriate issue to be determined during the hearing of an application pursuant to s. 4E of the Criminal Procedures Act 1967 (as amended).  
5.	The applicant has been advised that the ruling made by the first named respondent is wrong in law and deprives him of his constitutional right to a trial in due course of law and has accordingly sought the relief which has been sought in these proceedings.

LEGISLATIVE PROVISIONS
Section 4E of the Criminal Procedure Act 1967 (as inserted by s. 9 of the Criminal Justice Act 1999) provides inter alia as follows:
“(1)	At any time after the accused is sent forward for trial the accused may apply to the trial court to dismiss one or more of the charges against the accused. 
(4)	If it appears to the trial court that there is not a sufficient case to put the accused on trial for any charge to which the application relates, the court shall dismiss the charge.  
(5)	(a)	oral evidence may be given on an application under subs. (1) 
only if it appears to the trial court that such evidence is required in the interests of justice…”

On behalf of the applicant it is contended that the enactment of s. 4E of the 1967 Act comprises a radical alteration of the criminal law.  It is argued that the legislation does not limit in any manner the issues of law or fact which can be determined by the court of trial on foot of an application pursuant to the provisions of s. 4E.
It is further contended that subs. (5) (a) of s. 4E makes express provision for the admission of oral evidence in support of an application under the section where “…such evidence is required in the interests of justice…”.
The applicant says that this provides legislative authority for the admission of evidence other than that contained within the Book of Evidence in support of an application pursuant to the provisions of s. 4E of the 1967 Act.  It is argued that this may include evidence designed to demonstrate that specific evidence which will be relied upon by the prosecuting authority is inadmissible as a matter of law.
It is also contended that the legislative provisions are intended to buttress the right of an accused person to a trial with reasonable expedition in due course of law and to avoid the necessity for a lengthy, arduous and expensive criminal trial process where such a process will, in any event, be futile.
On behalf of the Director of Public Prosecutions it is argued that s. 4E of the 1967 Act was never intended to effect a fundamental and radical alteration of the law with a view to changing substantively the manner in which criminal jury trials are to be conducted.  
It is argued that such an interpretation would undermine the unitary nature of a criminal trial and create the potential for inconsistent and conflicting rulings as to the admissibility of evidence.  

CONCLUSION
The enactment of Part III of the Criminal Justice Act 1999 has had the effect of abolishing the statutory preliminary examinations authorised by the 1967 Act.  A new statutory regime empowers and requires the District Court to send an accused person charged with an indictable offence forward for trial to the appropriate court of jurisdiction subject to compliance with the terms of s. 4 of the 1967 Act as inserted by s. 9 of the 1999 Act.  
Formerly an accused person was, at a particular point in the preliminary criminal procedure, entitled to make an application to the District Court that he be “…discharged as to the offence under examination…”, on the grounds that the evidence before the District Court did not disclose a sufficient case to put him on trial for the offence with which he had been charged (see s. 5 of the 1967 Act).  
That statutory right has been replaced by a right to apply to the trial court to dismiss one or more of the charges preferred against an accused person on the grounds that the evidence before the trial court does not disclose “…a sufficient case to put the accused on trial…”.  See s. 4E of the 1967 Act (as inserted by s. 9 of the 1999 Act).  
It is acknowledged by the parties in these proceedings that the term “trial court” refers to the appropriate court of jurisdiction.  It is not intended by the section that applications pursuant to s. 4E should be made expressly to the specific trial judge who will preside over the criminal trial.  It is quite clear that the application was intended to be heard and determined as a preliminary issue heard independently before (and perhaps some time before) the hearing of the trial proper.  
This court has held that:
“The fundamental purpose of s. 4E of the Act is not dissimilar to the original purpose of the preliminary examination.  Where the evidence in support of the charge preferred is so weak that there is no probable cause to believe that the accused might be guilty, an application may be made pursuant to s. 4E of the Act to dismiss the charge and discharge the accused.  The test is whether the evidence upon which the State intends to rely, if adduced properly and lawfully, discloses a prima facie case against the accused.” 

See Phibbs v. Judge Desmond Hogan and the Director of Public Prosecutions (High Court, Unreported, 27th May, 2004). 
In Director of Public Prosecutions v. Windle [1999] 4 I.R. 280 the High Court McCracken J. held that a preliminary examination was: 
“…not a trial of the accused and the sole purpose would be to determine whether there is a sufficient case to put the accused on trial…”.
He went on:
“I am quite satisfied that it is not for a judge conducting a preliminary examination 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 respondent forward for trial, as there would have been no evidence to justify the search of the premises, but once the search warrant existed, in my view the question of its validity was one for the trial and not one for a preliminary investigation.”
It seems to me that these remarks apply with equal force to the procedure pursuant to s. 4E of the 1967 Act which has now replaced the former preliminary examination before the District Court.  
The admissibility of the particular evidence to be adduced in a criminal trial may only be decided upon by the trial judge who is conducting that criminal trial.  Its admissibility may not be challenged in advance of the trial.  That matter has been determined consistently and repeatedly by the courts in this jurisdiction.  See Byrne v. Grey [1988] I.R. 31, Berkley v. Edwards [1988] I.R. 217 and in particular Blanchfield v. Harnett [2001] 1 I.R.L.M. 193 where O’Neill J. observed at (p. 204/205) that 
“It would seem to me that the resolution of this issue hinges on the nature of the jurisdiction exercised by a trial judge in criminal proceedings.  In the course of such proceedings issues arise as to the admissibility of evidence and the resolution of such issues rests solely with the trial judge.  Where it is alleged that evidence has been obtained illegally the question of whether or not such is the case i.e. whether an illegality has occurred is one solely for the trial judge and following upon that whether or not the evidence should be admitted is again one that is solely at the discretion of the trial judge, a discretion to be exercised in accordance with law.  In my view the principle of regularity of judicial proceedings requires that all questions relevant to the determination of such issues rests with the trial judge.  Otherwise trials would be suspended for lengthy periods or litigated in other courts.”

Although the principle identified in most of the authorities referred to earlier herein arose in the context of  challenges to the admissibility of evidence by way of Judicial Review I have no hesitation in adopting the principle as applicable also to applications made pursuant to the provisions of s. 4E of the 1967 Act (as amended).  
Section 4E of the 1967 Act was intended to enable an accused person to make an application to have charges preferred against him dismissed where the evidence upon which the State intends to rely is so weak that there is no probable cause to believe that the accused might be guilty.
However as has been indicated in Phibbs v. Judge Desmond Hogan and the Director of Public Prosecutions - (supra) 
“… the test is whether the evidence upon which the State intends to rely, if adduced properly and lawfully, discloses a prima facia case against the accused.”

It was clearly not intended that applicants pursuant to s. 4E would be entitled to challenge evidence disclosed in the Book of Evidence on grounds of credibility or weight. I am satisfied also that it was not intended that it should be challenged on grounds of admissibility. Such applicants (and the court hearing the applications) should take the State’s case as disclosed in the Book of Evidence at its highest point.
The admissibility of particular evidence will invariably require to be determined by the trial judge during a criminal trial. In determining admissibility the trial judge may require to hear evidence by way of a voire dire or to exercise discretion judicially as to the admission of particular evidence. The validity of a warrant may depend upon the state of mind of the person applying for or issuing the warrant. Enquiry into such matters cannot be properly conducted in isolation from all of the other evidence to be adduced in a criminal trial. It is undesirable that specific findings of fact or law should be made in advance of a criminal trial. 
In hearing an application pursuant to s. 4E of the 1967 Act (as amended) the trial court should consider the evidence upon which the State intends to rely on the assumption that it will be adduced lawfully and properly and as outlined in the Book of Evidence. The court must then decide whether, if so adduced, it discloses a ‘prima facie’ case against the accused.
If so, the accused should be sent forward for trial.  If not then the accused person should be discharged.
In the light of the foregoing I am satisfied that the first named respondent was correct when he ruled that the validity of the search warrant was a matter to be determined by a trial judge in the course of the criminal trial of the accused person. It was not an appropriate matter to be decided on an application pursuant to s. 4E of the Criminal Procedure Act 1967 as amended.
It follows that the relief sought by the applicant is refused.