DPP -v- Jason Kavanagh, Mark Farrelly & Christopher Corcoran, [2012] IECCA 65 (2012)

Judge:Denham C.J.
Party Name:DPP, Jason Kavanagh, Mark Farrelly & Christopher Corcoran
Docket Number:301, 308/09 & 6/10
 
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THE COURT OF CRIMINAL APPEALCCA Nos. 301, 308/09, 6/10

Denham C.J.

Moriarty J.

Hogan J.

Between/

The People (Director of Public Prosecutions)

and

Jason KavanaghApplicant

and

The People (Director of Public Prosecutions)

and

Mark FarrellyApplicant

and

The People (Director of Public Prosecutions)

and

Christopher CorcoranRespondent

Judgment of the Court delivered on the 24th day of May, 2012, by Denham C.J.

1. Jason Kavanagh, Mark Farrelly and Christopher Corcoran, the applicants before the Court of Criminal Appeal in these appeals, referred to collectively as “the applicants”, were accused jointly, with David Byrne and Niall Byrne, of:-

(i) Having falsely imprisoned Paul Richardson on the 13th and 14th days of March, 2005 at 28 Ashcroft, Raheny, Dublin 5, in the County of the City of Dublin, contrary to section 15 of the Non Fatal Offences Against the Person Act, 1997.

(ii) Having falsely imprisoned Marie Richardson on the 13th and 14th days of March, 2005 at 28 Ashcroft, Raheny, Dublin 5, in the County of the City of Dublin, contrary to section 15 of the Non Fatal Offences Against the Person Act, 1997.

(iii) Having falsely imprisoned Ian Richardson on the 13th and 14th days of March, 2005 at 28 Ashcroft, Raheny, Dublin 5 in the County of the City of Dublin, contrary to section 15 of the Non Fatal Offences Against the Person Act, 1997.

(iv) Having falsely imprisoned Kevin Richardson on the 13th and 14th days of March, 2005 at 28 Ashcroft, Raheny, Dublin 5, in the County of the City of Dublin, contrary to section 15 of the Non Fatal Offences Against the Person Act, 1997.

(v) Having robbed Paul Richardson and Securicor Security Services Ireland Limited of €2,280,000 on the 14th day of March, 2005, in the County of the City of Dublin contrary to section 14 of the Criminal Justice (Theft and Fraud Offences) Act, 2001.

2. The applicants were convicted on the 30th July, 2009, sentenced on the 12th November, 2009, and have appealed to the Court of Criminal Appeal.

Preliminary Issue

3. There is a preliminary issue before the Court. It is a discrete matter, addressed in advance of full appeals. Two fundamental questions arise at this time:

(i) Does the decision in Damache v. DPP and Ors [2012] IESC 11 apply to these cases?

(ii) If it does apply, what are the consequences?

Events

4. The events giving rise to these proceedings were as follows. On the 13th and 14th March, 2005, a number of men forced entry into the Richardson family home. They falsely imprisoned the Richardson family with the intent of forcing Paul Richardson, under threat of harm to his family, to undertake certain acts in his capacity as an employee of Securicor Security Services Ireland Ltd., so as to facilitate a robbery. Paul Richardson’s wife and two sons were taken to Cloon Wood, County Wicklow, where they were kept for a period overnight while Paul Richardson was kept at the family home. On the morning of the 14th March, 2005, Paul Richardson went to work and, under duress and in accordance with instructions, enabled a drop-off of €2.28 million in cash at the car park of the Angler’s Rest Pub, County Dublin. Marie, Kevin and Ian Richardson were left tied up in Cloon Wood. However they managed to release themselves, and obtained assistance.

5. On the 30th July, 2009, the applicants were convicted on all counts by a jury of eleven (one member having been discharged by reason of a family bereavement). The jury failed to reach a verdict in relation to the other accused; David Byrne and Niall Byrne.

6. On the 12th November, 2009, Jason Kavanagh was sentenced to 25 years imprisonment, concurrently on each count, which was backdated to the 1st November, 2008; Mark Farrelly was sentenced to twenty five years imprisonment, concurrently on each count, from the 30th July, 2009, and Christopher Corcoran was sentenced concurrently on each count, to twelve years imprisonment from the 30th July, 2009.

7. Each of the applicants has appealed his conviction and sentence. Jason Kavanagh’s Notice of Appeal was filed on the 2nd December, 2009; Mark Farrelly’s Notice of Appeal was filed on the 11th December, 2009; and Christopher Corcoran’s appeal was filed on the 8th January, 2010.

Damache Case

8. A preliminary issue has arisen in each of the three appeals, by reference to the decision of the Supreme Court in Damache v. DPP [2012] IESC 11 (unreported, 23rd February, 2010). It was held in Damache, at paragraph 59, that:-

“This Court would grant a declaration that s. 29(1) of the Offences against the State Act, 1939 (as inserted by s. 5 of the Criminal Law Act, 1976) and referred to as s. 29(1) of the Act of 1939, is repugnant to the Constitution as it permitted a search of the appellant’s home contrary to the Constitution, on foot of a warrant which was not issued by an independent person.”

9. The first question before the Court for consideration is whether the decision in Damache applies to the appeals of the applicants. Each of the applicants had appealed to this Court, and grounds of appeal had been filed, but no hearing date had been listed, prior to the decision in Damache v. DPP [2012] IESC 11.

Jason Kavanagh

10. It was submitted that Jason Kavanagh seeks to rely upon ground J, in his Notice of Appeal, which was filed before the Damache decision was given. Ground J states:-

“The learned trial judge erred in law and in fact when he found that the search of the appellant’s home and his subsequent arrest during that search were lawful”.

11. This ground refers, inter alia, to the admission of evidence that was obtained after a search of the applicant’s home which was made on foot of a search warrant issued by Superintendent Conneely, pursuant to s. 29 of the Offences Against the State Act, 1939, as inserted by s. 5 of the Criminal Law Act, 1976, referred to as “s. 29 of the Act of 1939.”

12. On Day 14 of the trial (18th May, 2008), the learned trial judge ruled on the issue as to whether the prosecution had fulfilled the legal requirements and had laid a foundation for the subsequent admission of evidence.

13. The home of each of the appellants was searched pursuant to a warrant issued by Superintendent Conneely. The evidence in relation to the warrants, which had been issued under s. 29 of the Act of 1939, was given by Superintendent Conneely on Day 14 of the trial (18th May, 2008). It is clear from that evidence that:-

(i) Superintendent Conneely was one of the senior garda officers involved in the investigation of the offences in this case;

(ii) Superintendent Conneely issued the warrant pursuant to s. 29 of the Act of 1939 to search Jason Kavanagh’s home at 27, Parlickstown Court, Mulhuddart, Dublin 15; as he did for the home of the other applicants;

(iii) Jason Kavanagh was arrested;

(iv) After Jason Kavanagh’s arrest, Superintendent Conneely authorised the taking of bodily samples from Jason Kavanagh during his period of detention at Santry Garda Station.

Warrants issued under s. 29 of the Act of 1939

14. Superintendent Conneely gave evidence, on the 18th May, 2009, that from his investigations it was his belief that there was evidence in relation to the unlawful possession of firearms and other matters at 27, Parlickstown Court, Mulhuddart, Dublin 15,...

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