Ayadi v DPP

CourtHigh Court
JudgeMs. Justice Ní Raifeartaigh
Judgment Date20 January 2017
Neutral Citation[2017] IEHC 84
Docket Number[2015 No. 702 JR]
Date20 January 2017

[2017] IEHC 84

[2015 No. 702 JR]


Crime and Sentencing – S. 17 of the Criminal Justice (Theft and Fraud) Offences Act, 2001 – Handling stolen property – Admissibility of electronic evidence – Breach of fair procedures – Expert witness testimony

Facts: The applicant sought an order of certiorari for quashing the conviction and sentence of the applicant contrary to s. 17 of the Criminal Justice (Theft and Fraud) Offences Act, 2001. The applicant contended that the District Court Judge had failed to give adequate reasons for his refusal of legal submissions made by the applicant and that the electronic evidence was not admissible as it had not been properly proved. The applicant also alleged breach of fair procedures in the manner the learned District Court judge had conducted the hearing of the trial.

Ms. Justice Ni Raifeartaigh granted the relief of certiorari to the applicant and remitted the matter to the District Court for a fresh hearing. The Court observed that the learned District Court Judge was in breach of fair procedures as he did not address the legal submissions made on behalf the applicant in relation to the admissibility of the electronic evidence and rather interrupted the applicant's solicitor who had been trying to make the submissions. The Court held that the learned Judge failed to give reasons for his rejection of the submissions, especially when the said Judge had failed to explicitly rule on the submissions that the failure of the applicant to explain the photos in the interview conducted by the Garda was not probative. The Court stated that some of the essential features of fair trial had been compromised in the manner the trial was conducted.

JUDGMENT of Ms. Justice Ní Raifeartaigh delivered on the 20th day of January, 2017.

This is an application by way of judicial review seeking, inter alia, an order of certiorari quashing the conviction and sentence of the applicant dated the 29th September, 2015. The applicant was convicted and sentenced by Judge O'Donnell, in the District Court, sitting at the Criminal Courts of Justice in Dublin on that date, in respect of an offence of handling stolen property contrary to s. 17 of the Criminal Justice (Theft and Fraud) Offences Act, 2001. The grounds on which the relief is sought are essentially: (1) that the District Court Judge failed to give adequate reasons for his refusal to accede to legal submissions made on behalf of the applicant during the giving of evidence and in the course of an application for a direction at the close of the prosecution case, (the 'reasons' ground), (2) that the manner in which the District Court Judge conducted the hearing breached fundamental principles of fairness and constitutional justice (the 'fair procedures' ground) and (3) that the manner in which the District Court Judge conducted the hearing would lead an objective person to believe that the Judge was biased or had come to a view of the merits prior to the case concluding (the 'objective bias' ground).


The trial of the applicant took place with that of a co-accused in a District Court sitting in the Criminal Courts of Justice in Dublin on the 29th September, 2015. The sole charge was one of handling stolen property, namely an iPhone, contrary to s. 17 of the Criminal Justice (Theft and Fraud Offences) Act, 2001. Three witnesses were called by the prosecution. The first witness was one Mr. Cathal Mooney, who gave evidence that after socialising in a nightclub on Abbey Street, Dublin, which he left between 12.30 a.m. and l a.m. of the date in question, he noticed that his iPhone was missing. As it happened, Mr. Mooney was himself a network systems engineer with a degree in information and communications technology. He had been working in his field of internet protocol and telecommunications since 1999. He had installed an app on his iPhone, called 'iCaughtU Pro' [hereinafter: 'the app'], which sent him an email when someone tried to access or shut down his phone. The app also took a photo of the person in possession of the phone and emailed it to Mr. Mooney by way of attachment. Mr. Mooney had not, of course, been involved in any way in the design of the app itself, having merely purchased the app online and set it up on his phone, although he did say in cross-examination that he had tested it because it would not be any use if it did not work. Mr. Mooney said that when he realized he did not have his phone, he went to his computer to check his emails. He found that he had received some emails originating from the app, which showed that people had tried to switch off the phone up and down Abbey Street, in the proximity of where he had been. He had his laptop in court and he also produced a number of printouts which showed the emails he had received and photographs contained therein. These showed that attempts had been made both to switch off his phone and to unlock the device a number of times between 1.01 a.m. and 1.10 a.m. on the date in question. He subsequently furnished these to An Garda Síochána. No other witness was called by the prosecution to deal with the app.


The second prosecution witness was a Garda who had been furnished with the photos in question and identified the two accused from them. As a result of this identification the two accused were arrested and evidence of this was given by the third prosecution witness, one Garda Mairead Murphy.


Garda Murphy gave evidence that she obtained search warrants for the homes of the two men identified from the photographs, and that the applicant had been arrested and detained pursuant to s. 4 of the Criminal Justice Act, 1984. She gave evidence that he was questioned during his detention. The following exchanges then took place concerning these interviews, Mr. McCarthy being the solicitor for the applicant:-

A: Judge, I obtained search warrants for both mens' home - unfortunately - in order to locate the telephone, the phone was not recovered. Both men were arrested and detained under s. 4 of the Criminal Justice Act, Judge, and questioned.

Judge O'Donnell: Yes.

A: Neither of whom made any admissions.

Judge O'Donnell: Made no admissions.

A: No admissions, Judge. They could not explain as to why their photographs were -

Mr. McCarthy: They are not obliged to explain.

Judge O'Donnell: Ah, Mr. McCarthy.

Mr. McCarthy: No Judge, if they retain their right to silence their interview.


A: They weren't silent.

Judge O'Donnell: They weren't silent, they made no admission

Mr. McCarthy: Well, I wasn't given a copy of -

A: Yes, you were. The original folder had the memo of interviews, the photographs, the downloads, everything. Judge, this matter has been in for hearing twice already, so these matters were given (inaudible).

Judge, when asked why their photographs were on this application on the phone, they could not explain it. Judge, they were both asked had they found the mobile phone and had they been accessing it in an effort to locate the owner, if that had been the case, and if they had not been successful why did they not hand the phone into Gardai or to the nightclub worker, any other authorised person, Judge, they were unable to answer that question.

Mr. McCarthy: They were not obliged to answer any questions.

Judge O'Donnell: So you keep telling me, Mr. McCarthy.

Mr. McCarthy: She shouldn't be giving this evidence, or it should be disregarded, judge.

Judge O'Donnell: Right.

Mr. McCarthy: In my submission, Judge.

Judge O'Donnell: Submission noted.

Mr. McCarthy: Thank you, Judge.


I have examined the memorandum of interview and it appears that the applicant in the present case answered 'no comment' to almost all of the questions during the interview in question. There were two exceptions. He was asked: 'what would you do if you found somebody's mobile phone?', to which he replied, 'no comment, what would you do?'. He was also asked 'although your family is from Tunisia you have spent 20 years in the country, you're a 20 year old Dub. You know the clubs and pubs in the city centre', to which he replied 'are you calling me a Dub?'. Neither of these two answers were of any probative value as regards the charge of handling the particular iPhone. This was therefore an interview which should have been dealt with within the parameters of the Supreme Court decision in D.P.P. v. Finnerty [1999] 4 IR 365. In other words, the correct description of the interview is that nothing of probative value had emerged from it. Thereafter, the interview should have been disregarded by the District Court Judge. Instead, what was conveyed to the Court, by the Garda, was that this was an interview during which the applicant had not remained silent (and must therefore have given answers of some kind) and yet had been unable to explain why his photo was taken by the phone. While the evidence by the Garda was misleading in this regard, the District Judge's attitude to the solicitor's objection at this point was also unsatisfactory; if he had looked at the memo of interview for even a few seconds, he would immediately have seen that the solicitor was correct and that the applicant had exercised his right to silence throughout, with the two exceptions referred to. Further, the Judge's comment of 'so you keep telling me' is open, on one interpretation, to being construed as a failure to accept that the right to silence is a fundamental principle of Irish criminal law which renders a 'no comment' interview valueless in probative terms, unless one is dealing with questioning pursuant to one of the special legislative 'adverse inference' provisions, which was not the case here. Also, the phrase 'submission noted' failed to indicate whether the judge accepted the correctness of the submission or not, and...

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