Bogdan v District Judge O'Donnell & DPP

JurisdictionIreland
JudgeMs. Justice Iseult O'Malley
Judgment Date27 November 2015
Neutral Citation[2015] IEHC 746
CourtHigh Court
Date27 November 2015

[2015] IEHC 746

THE HIGH COURT

[No. 248 JR/2014]
Bogdan v District Judge O'Donnell & DPP
No Redaction Needed
Approved Judgment
JUDICIAL REVIEW
BETWEEN/
BOBY BOGDAN
APPLICANT

AND

DISTRICT JUDGE HUGH O'DONNELL AND THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTS

Crime & Sentencing – S. 14 of the Criminal Justice (Theft and Fraud Offences Act) 2001 – Conviction for robbery – Breach of fair procedures – Unlawful search

Facts: The applicant sought an order of certiorari for quashing the decision of the first named respondent convicting him for the offence of robbery. The applicant contended that his dwelling premises were searched unlawfully without identification of the source of search power at the instance of the complainant, who alleged to have been robbed by the applicant along with others

Ms. Justice Iseult O'Malley refused to grant an order of certiorari to the applicant. The Court held that the searched premises comprised the entrance hall of the multi-unit building which was not part of the dwelling of the applicant. The Court observed that it was appropriate for the first named respondent to not consider the constitutionality of the search procedure as the stolen and robbed items were recovered from the person of the applicant. The Court found that the conviction of the applicant was self-explanatory and justified as the case of the prosecution rested upon the identification evidence.

Introduction
1

In these proceedings the applicant seeks an order of certiorari quashing his conviction for the offence of robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001. He also seeks declaratory relief and an order of prohibition preventing his further trial in respect of the offence.

2

It is complained, in a general plea, that the first named respondent, in convicting the applicant, acted in breach of the rules of natural and constitutional justice and/or in a manner contrary to fair procedures; and that the second named respondent acquiesced in that process.

3

The specific complaints are that the first named respondent, in dealing with submissions made on behalf of the applicant, failed to consider those submissions individually and on their own merits; that he admitted eyewitness identification into evidence in breach of the applicant's rights; and that he admitted items obtained as a result of an unlawful search into evidence in breach of the applicant's rights.

Background facts
4

The applicant was alleged to have robbed a Mr. Barry McGuckian of his mobile phone, jewellery, and cash with a value of approximately €750.00 at 424 North Circular Road, Dublin 7 on 5 th August, 2013.

5

The case was listed for trial before the first respondent on 22 nd January, 2014. The applicant was represented by counsel but failed to appear on this date, despite having been present when the date was fixed. The matter was allowed to stand until second call, at which point the trial proceeded in the absence of the applicant. No objection was taken to this by his counsel. It is apparent that the injured party had travelled from Northern Ireland to give evidence and that the court was anxious to facilitate him.

6

The injured party said in evidence that he had been walking along a street late at night when he was accosted by a man who grabbed him by the arm and pulled him down into the basement area of a house. Another man helped to pull him inside the building. He said that there were four or five other men and women in the basement who all came running up, pinned him against a wall and searched him. They took his watch, ring, phone and cash. A man he described as "the young fellow" took the phone but was unable to get a signal. The injured party told him that he would show him how it worked, and then managed to get away and run across the street. He rang the gardaí from a nearby location. They arrived and he pointed out a house to them. He continued:

"The guards went into the house and took everybody out of the house. Then they searched the house and they found the back of my phone. They found my watch. They found my ring."

7

The injured party said that he thought he recognised two people but that he was "more confident about the younger fellow" and was "definitely sure" about him.

8

Cross-examination of the injured party was limited to establishing the fact that there had not been a formal identification parade.

9

At the end of the cross-examination the respondent District Judge issued a bench warrant for the applicant and the case was adjourned to the 24 th March, 2014.

10

The bench warrant was executed and the applicant was present at the hearing on 24 th March, 2014. On this occasion he was represented by a different counsel, who applied for an adjournment. Counsel said that he had now been given instructions that conflicted with the evidence given by the injured party, and that he wished the latter to be recalled so that he could cross-examine on those instructions. He accepted that his client was wholly to blame for failing to appear on the previous date and offered no excuse for his non-attendance. The first named respondent decided to proceed with the hearing and the adjournment application was refused.

11

The prosecuting officer, Garda Kelly, then gave evidence that he and his colleague Garda Moran attended the scene of the robbery as pointed out by the injured party. This was at 424 North Circular Road, which was described as "a house broken up into flats". He said that he knocked on the door, which opened "under the force" of the knock. He and Garda Moran had walked down some steps into a basement area which was described as "a communal hallway", with about three flats off it, where they were met by 10 to 15 Romanian nationals.

12

Garda Kelly said that, as the hallway was "a small confined area", the men were requested to step outside into the front garden. The gardaí began to take their details there. The injured party, who was standing outside the garden beside the garda patrol car, approximately 12 feet away, identified the applicant as one of two men who had committed the alleged robbery.

13

According to the transcript, Garda Kelly's evidence as to what he then said to the applicant was as follows:

"I then spoke to Boby Bogdan and I cautioned him as follows: 'You are not obliged to say anything unless you wish to do so, but anything you do say will be taken down in writing and may be given in evidence. I informed Mr Bogdan that he had been identified as being involved in the commission of a crime and I then informed him that I would - I was going to search him, as I believed that there may be evidence relating to this crime to be found on his person."

14

During the search Garda Kelly recovered a watch and a chain ring, which were identified by the injured party as being his property. The applicant was then arrested.

15

In cross-examination Garda Kelly accepted that the time was in and around midnight. Mr. McGuckian had identified the applicant by pointing him out. The applicant was, at the time, standing in a group of approximately ten Romanian nationals who were, he agreed, "packed closely together".

16

Garda Moran said that he became aware of the identification of the applicant. He was present when Garda Kelly conducted a cursory search of the applicant and said that Garda Kelly informed the applicant of the reason for the search. He was not cross-examined.

17

The garda evidence was that while in custody the applicant gave his address as Flat 2, 424 North Circular Road. No other relevant comments were made by him in interview.

18

At the conclusion of the prosecution case counsel for the applicant made a submission that the identification of the applicant was "entirely insufficient to jump the reasonable doubt hurdle" having regard to the circumstances in which it was made. The injured party had not given a physical description of his assailant's features or clothing and had identified the applicant some time after the event as he stood in a "huddle" of Romanian men, at a distance of about 12 feet and in the hours of darkness. Counsel said that the judge would be well aware of the decisions of the superior courts as to the appropriateness or otherwise of identification other than in a controlled, formal garda station setting. Any conviction arising from the purported identification would be wholly unsatisfactory and incapable of surmounting the reasonable doubt test.

19

The first named respondent indicated that he was holding against this submission on the basis that the identification evidence could not be looked at in isolation from the rest of the case. The applicant had been identified, then searched and the stolen goods were found on him. He concluded (on this issue):

"Take it all together, you have a case to answer."

20

Counsel then made a submission on the search. This submission appears to have been based on a note that Garda Kelly had said only:

"I informed [him] that he was suspected of committing an offence and I searched him."

21

However, the extract from the transcript quoted above makes it clear that the garda went somewhat further than that.

22

Counsel referred to his note and said:

"Judge, I'm not sure what legal basis for a search that purports to be, but, in my respectful submission, it's wholly inexact. There is no lawful evidence for search. The case of DPP v. Rooney, Judge, again, it's very clear that not only does the guard have to ground his search power and explain it to an accused person, he has to also tell him the reason for a search. So, it's not enough alone that he tells him the reason, he has to tell him the search power, Judge."

23

Counsel said that if the garda had been relying on his power under the Criminal Justice (Theft and Fraud Offences) Act 2001 he...

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