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McNulty v DPP [2009] 3 IR 572; [2009] IESC 12 was a Irish Supreme Court case in which the Court decided upon an appeal from the High Court. In this case there was an appeal brought on the grounds of a case regarding possession of controlled drugs with an intent to supply. This case addressed a substantial issue in the decision of a court on the granting of a warrant for searching premises as it looked at how the decision to grant should be reached. This case highlighted whether or not there was necessity to have a member of An Garda Síochána seeking a warrant "present himself before the learned District Judge and answer any questions it occurs to the judge to put to him in order to satisfy himself." Whilst this Court did not answer the question it did highlight the necessity for it to be addressed. The Supreme Court upheld the decisions of the lower courts and decided that the question of Judicial Review was not to be dealt with by the Supreme Court.

Background
McNulty was originally charged with the possession of a controlled drug and the possession of same for supply. However, the more prominent charge was that for the possession of MDMA with the intent to sell or supply to another person. As a result of another offence alleged against McNulty, which he was acquitted for, the Gardaí made certain observations on the apartment of McNulty, as a result of this they applied for a search warrant for the apartment.

There was a challenge raised on McNulty's behalf in relation on the legality of the search warrant granted by the District Court. This challenge resulted in a voir dire, this is similar to a small pre trial, conducted with only the members of counsel and the judge. At the end of this process the Judge ruled in favor of the admissibility of the search warrant. The jury were unable to reach a verdict and disagreed. Following this trial's conclusion the prosecution in the case served more evidence on McNulty. At the crux of McNulty's case is that the DPP have taken advantage of the jury's disagreement by serving additional evidence in order to rectify the issues with proof in the initial trial.

McNulty proposed that there are two reasons which this case can be brought forward, the appellant McNulty is of the opinion that he would have been acquitted if the trial judge had decided the legal issues correctly. Secondly, McNulty was of the opinion that if he was convicted that the conviction would have been quashed and as a result of this it is inequitable that he is in a worse position because of the disagreement of the jury. These claims were adjudicated by the Supreme Court by Justices Hardiman, Geoghegan and Fennelly.

Holding of the Supreme Court
The decision of the Court was delivered by Justice Hardiman in relation to a case for judicial review against the High Court. The Court affirmed the High Court Order to refuse the relief sought by McNulty, this judgement was supported by concurrence from Geoghegan J and Fennelly J.

This appeal was dismissed on the two grounds which were brought forward by McNulty. Hardiman J stated that most relevantly to the Court currently is that in order to issue a valid warrant the District Court would have to hear oral evidence from the applicant in the case and there was no obvious evidence this occurred. Also, it was said that the warrant did not establish that the District Court Judge had been satisfied of the information which it required he be. But rather that it appeared to him as a result of information on oath from a member of the Gardaí that there was reasonable grounds for suspecting evidence of the offence in McNulty's home.

McNulty had lodged for a stay on proceedings and not to allow the DPP to pursue prosecution against him he also sought judicial review in a declaration stating he was entitled to acquittal. The Supreme Court took a stance of deference in relation to this issue of the merits of the issue raised before the Circuit Court. Whilst McNulty's representation relied heavily on precedents such as the C.C case by deciding upon the merits and allow the Court to make their own decision on these. However, Hardiman J was of the opinion that the facts in issue would be capable of being resolved by the Circuit Court Judge and this would be the most appropriate action as the issues arising are from a pending Circuit Court case. The Supreme Court also drew inferences between the two cases as in the current case McNulty is seeking to quash on certiorari a decision of the Circuit Court Judge from 6 years previous. The fact of the matter is that the ruling of the lower court is entirely moot because it has no continuance of legal effect and has no binding nature.

The second relief sought was the prohibition or injunction to stop the upcoming trial and similarly to the above is based on the idea that the ruling of the lower Court was wrong in law. As a result of what has already been established because this point was rendered moot in relation to the first relief it has been understood to be identical in this case and therefore the relief is not to be granted.

This case importantly also investigated the point as to whether or not a member of An Garda Síochána seeking a warrant must appear before the District Court Judge. This was queried by McNulty under Section 10 of the Criminal Justice Act. This was relevant to the case because the District Judge did not state he was fully satisfied by the evidence provided. This issue calls into question "the root of our legal culture and the protection of the constitutional rights of the citizen." The resolution of this issue is paramount to the case. However, this Court felt that they were not the correct authority to deal with this query.

Justice Hardiman found that at the root of this case was the admissibility of certain evidence rather than substantive law which was at the root of the C C case and the a procedural issue in regards to the admission of evidence submitted to the trial judge. Hardiman J with concurrence from the other Justices stated there was no one single answer but an instance that was to be decided with the evidence that will be submitted in the case. Therefore the Court dismissed the appeal.

Background
The case of Bank of Ireland Mortgage Bank -v- Coleman originates from a case brought by the Bank of Ireland Mortgage Bank ("Bank of Ireland") against Coleman whereby relief was sought in two ways. The Bank of Ireland sought An Order that the the solicitor for the Defendant compensate the Bank of Ireland for the failure to comply with an Undertaking supplied to the bank. The Solicitor for the defendant made promise not to release €250,500 which was paid to him from the Bank of Ireland to his client unless there was a duly executed mortgage by the borrower in favor of the Bank of Ireland over the property being purchased. However allegedly the monies were released in contravention with the Undertaking and without the consent or authority of the Bank of Ireland. Another ground under which relief has been sought is that the monies be repaid by Coleman to the Bank of Ireland for the monies which were misused by him in direct breach of his undertaking with the Bank of Ireland.

In short the facts of the case which preceded the case in question are as follows, the Bank of Ireland issued a Mortgage Loan Offer Letter to the Borrower offering €250,500. Coleman was the solicitor of the borrower in this case, therefore the Bank of Ireland also issued a 'solicitor's pack' which contained standard documentation such as the Solicitor's Undertaking in question. This Undertaking was duly completed and returned with a cheque requisition form supplied by the Bank. Coleman broadly undertook to ensure that the borrower acquired good marketable title to the Property and ensure that the Bank received the first legal Charge on the same property. Coleman has accepted that he was in breach of his Undertaking to the Bank. The borrower fell into arrears on his mortgage and upon investigation irregularities in the mortgage transaction were identified. A formal complaint was then lodged with the Garda Bureau of Fraud Investigation. In 2004 the Gardaí, with a warrant removed the file of Coleman in relation to this purchase and mortgage in question. The Bank sought details of the status of what was outstanding and in relation to the requirements of Coleman to complete his Undertakings. Regarding this point Coleman said that he was unable to complete the requirements as his file was with the Gardaí but that he would deal with all matters when the file was returned to him.

Holding of the Supreme Court
This case came before the Supreme Court for investigation and Justice Geoghegan delivered the judgement with concurring opinions being expressed by Justices Finnegan and Fennelly. The appeal was allowed in this case.

Coleman successfully argued that the first ground of relief sought was not the correct approach as the Court was operating under special jurisdiction as a result of John Fox v. Bannister, King & Rigbeys [1987] 1 Q.B. 925 which sets our that it is "a jurisdiction which is exercised, not for the purpose of enforcing legal rights, but for the purpose of enforcing honourable conduct on the part of the court’s own officers." He argued that the Court was not concerned with the claim for breach of trust or of an agency agreement but rather for the discretionary remedy which is open to it in order to remedy the misconduct. The discretion arose in two aspects, whether or not the situation warranted the exercise at all and if so what form should it take. The High Court Judge held against the Bank of Ireland on both counts. After much deliberation the Supreme Court decided that when deciding upon the solicitors undertaking the overall outcome should be taken into account rather than singular aspects of the undertaking. The Supreme Court agreed with the lower court in that it would be inappropriate to order Coleman to repay €250,500 with or without interest when the Bank by its own negligence had "provided loan facilities on an overvaluation of the property." Whilst Geoghegan J stated he agreed with the High Court Judge for the most part, in this instance he also found that more of an emphasis should have been directed to compensation. In this case there may have been the possibility that the real value of the security which the bank would have obtained could have been given as compensation by Coleman.

Since the hearing in the High Court there had been developments in the case. The situation has now dramatically changed as the transaction was completed in full and the Title is in order along with the Bank's security being properly implemented. However, even though this is the case it is still not excusable that there was a breach on the part of Coleman. If the bank had suffered a loss due to the unimplemented security then it would have been the responsibility of Coleman to reimburse the Bank of Ireland. Therefore the appeal was allowed by the Supreme Court in so far as remitting the case back to the High Court in order to assess any damages which may have been incurred by the Bank of Ireland.