DPP v A.B.

CourtCourt of Appeal
Docket NumberRecord No: 318/2018
JudgeMcCarthy J., Donnelly J., President
Judgment Date2020
JurisdictionIreland
Neutral Citation[2020] IECA 162

[2020] IECA 162

THE COURT OF APPEAL

President

McCarthy J.

Donnelly J.

Record No: 318/2018

BETWEEN/
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
RESPONDENT
- AND -
A.B.
APPELLANT

Acquittal – Waste Management Acts 1996 to 2011– Exclusion of evidence – Appellant seeking to appeal from the acquittal of the respondent – Whether the trial judge had erroneously excluded compelling evidence

Facts: The appellant, the Director of Public Prosecutions, appealed to the Court of Appeal pursuant to s. 23(1) and (3) of the Criminal Procedure Act 2010 on a question of law from the acquittal of the respondent by direction of the trial judge sitting in the Circuit Court on all 18 counts for alleged offences under the Waste Management Acts 1996 to 2011. The appellant submitted that in ruling inadmissible all evidence obtained, following a search of certain lands carried out in purported reliance upon a search warrant, the trial judge had erroneously excluded compelling evidence.

Held by the Court that there was sufficient information available to assess the validity of the warrant and precisely what it authorised in terms of entry to the lands. The error was in the lack of a complete or perfect description of the lands, but the Court was satisfied that it was an adequate description of the lands and was not likely to mislead. In those circumstances, the Court was satisfied that the trial judge erred in holding that the warrant was invalid.

The Court held that, despite the delays that had occurred and the procedural issues that had arisen with respective witnesses and the indictment, it was satisfied that it was in the interests of justice to order a retrial.

Appeal allowed.

JUDGMENT of the Court delivered on the 28th day of January, 2020 by Ms. Justice Donnelly
1

This is an appeal on a question of law from the acquittal of the respondent by direction of the trial judge sitting in the Circuit Court on all 18 counts for alleged offences under the Waste Management Acts, 1996 to 2011. This appeal is brought by the Director of Public Prosecutions (“the appellant”) pursuant to section 23(1) and (3) of the Criminal Procedure Act, 2010 (“the 2010 Act”).

2

Section 23 of the 2010 Act permits with prejudice prosecution appeals against acquittals where one (or both) of the following situations apply:

(a) A ruling was made by a court during the course of a trial […] which erroneously excluded compelling evidence, or

(b) a direction was given by a court during the course of a trial […] directing the jury in the trial to find the person not guilty where –

(i) the direction was wrong in law, and

(ii) the evidence adduced in the proceedings was evidence upon which a jury might reasonably be satisfied beyond a reasonable doubt of the person's guilt in respect of the offence concerned.

3

The appellant submits that in ruling inadmissible all evidence obtained, following a search of certain lands carried out in purported reliance upon a search warrant, the trial judge had erroneously excluded compelling evidence. This evidence was in essence the only evidence relating to some counts on the indictment, but it was also central to the decision by the trial judge to give a direction in respect of all counts. This arose in circumstances where, despite certain other evidence observed in visits to the farm by members of the relevant County Council subsequent to the search carried out on the 31st August, 2011 being presented to the jury, the trial judge ruled that there was insufficient evidence to go to the jury and that it would be unfair to let the jury hear the case, based upon her earlier ruling in respect of the search warrant.

4

Ms. Rebecca Walsh, Assistant Scientist with the relevant County Council and an authorised person within the meaning of the Waste Management Acts, visited the lands which appear by common case to be in the ownership of the respondent. In April 2011, she entered the land in pursuance of her powers as an aforesaid authorised person. She met with the respondent who told her she was a trespasser but took no steps to obstruct or impede her visit.

5

Following ongoing investigations, on the 25th day of August 2011, Ms. Walsh applied for and was granted, a warrant to search certain property by Judge Hamill in the District Court on foot of sworn information. The sworn information referred to information she had received in respect of:

“Farmland in the townlands of C and K, K, X, County Y. The premises is approximately 144 acres in size and contains sheds and a quarry. I believe that these farmlands, sheds and quarry are in the ownership of AB, K, K, County Y. The premises is within the District Court area of X, District No. Z.”

6

The warrant, as issued, permitted entry by various personnel “on the premises comprising of approximately 144 acres of lands and including sheds and a quarry in the townlands of C and K, K, X in the County of Y, in the said Court Area and District aforesaid …”

7

A voir dire was held in respect of the validity of the search warrant. The respondent made substantial submissions questioning the status of Ms. Walsh as an authorised person and also made an objection to her alleged lack of candour with the District Court in outlining more fully that the information she was relying upon came in part from a neighbour with a history of disputes with the respondent. The respondent's submission, as to the purported inadequacy of the description of the premises, forms the mainstay of this appeal. At the trial, counsel submitted as follows:

“Otherwise, insofar as the warrant is concerned, it could be effectively read to include any premises of farmland in those specified townlands, including sheds and a quarry, therefore, the warrant on its face is bad.”

8

At the trial, counsel for the prosecution submitted that the warrant contained a thorough description of the lands. Counsel referred to the size of the farm being 144 acres which they said was significant in the area. Much of the rest of counsel's submission was taken up with dealing with the other aspects of the submissions of the respondent. However, counsel did return to the aspect of judicial discretion and submitted there was no prejudice to the accused. Counsel submitted there was no unfairness in the present case. Counsel submitted that this was a big farm and it was located at that address.

9

Counsel for the appellant submitted to the trial judge that to rule the search warrant invalid would be to take the type of very artificial approach that was being taken to search warrants many years ago and was totally against the decision in The People (DPP) v. J.C. [2017] 1 I.R. 417. In respect of JC, counsel for the appellant submitted at the trial that the warrant did not involve a constitutional right in the sense that JC was concerned with, because no dwelling unit was on the land, the warrant only concerned farm lands.

10

In answer to that submission, the trial judge replied “Okay, so JC doesn't apply.” She then asked whether counsel was saying that the defence's submission was wrong, that it was not a bad warrant. Counsel for the prosecution replied in that he was saying it was not a bad warrant because if the local postman received this information he would know the address. There was no deception or confusion in the way it would have been received. He then returned to the position set out in JC where a balancing test was applied and that there was a right of the community to be taken into account. He submitted that it came down to a question of genuine fairness and he submitted that there was no unfairness here because when the search was carried out it all turned out to be correct. He submitted that this was a hazardous dump.

11

Counsel for the respondent submitted in reply that there was no reason why the investigating agencies of the State could not have gotten their “house in order” and “done the job properly”. There was ample time available to them and this alleged trespass had been going on for a number of years. He submitted:

“This is not a JC situation where there is a trifling error or something of that nature. This is a huge error on the face of the warrant, such that it cuts to the very core of the powers that are available to the agencies and the task force involved. And, in the circumstances, the Constitution is there not just to protect what might be described as constitutional rights. It's there to ensure that the agencies of the State conduct themselves in accordance with the law and I would submit that they clearly haven't done that and that the court should not give its imprimatur by saying that, even though the warrant is defective, even though the powers of entry were defective, there is no prejudice to my client. Otherwise, what's the point in having search warrants? Anybody can just go onto the land and do what they want, whenever they want.”

12

The trial judge gave her ruling with respect to this issue as follows:

“Now, this is a defence application for change (sic) of the evidence of Rebecca Walsh and it has been challenged in relation to two aspects. So in respect of the first submission […]

The second argument raised as to the search warrant, and in respect of that aspect of the warrant there were a number of matters addressed. I agree with counsel that the constitution is there to ensure that the agencies of the state conduct themselves in accordance with law when it comes to entering upon premises. This case opened in the presence of the jury with specific evidence and calls we had with the director, with respect to maps and aerial photographs and reference to the folios and three particular maps in that regard in order to identify the property concerned. Clearly, the purpose was to ensure that the Court and the jury knows exactly where the locus of the alleged offending was and, bearing that in mind, where there were no...

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