DPP v BA

JurisdictionIreland
CourtSupreme Court
JudgeDenham C.J.,Mr Justice Charleton,O'Donnell J
Judgment Date10 May 2016
Neutral Citation[2016] IESC 22
Docket Number[S.C. No. 53 of 2012],Bill number: 1175/2008 Appeal number: 2012/53 [2016] IESC S.C. No. 53 of 2012
Date10 May 2016

[2016] IESC 22

An Chuirt Uachtarach

THE SUPREME COURT

Denham C.J.

Charleton J.

O'Donnell Donal J.

Bill number: 1175/2008

Record number: 218/09

Appeal number: 2012/53

[2016] IESC

S.C. No. 53 of 2012

Denham C.J.

O'Donnell J.

McKechnie J.

Charleton J.

Between/
The People (at the suit of the Director of Public Prosecutions)
Prosecutor/Appellant
and
BA (called Robert for the purpose of this appeal)
Accused/Respondent

Crime & sentencing – Drugs offences – Package of drugs dispatched by post – Whether package lawfully intercepted – Admission of evidence

Facts: The respondent was alleged to have received a package of drugs as part of his drug trade business. In the Circuit Criminal Court, the respondent was acquitted of a number of offences by direction (having already pled guilty to others) on the basis the evidence relating to the package was inadmissible. The DPP now sought by way of a consultative case stated determination of a number of questions in relation to the interception of such packages.

The Supreme Court had heard the submissions with the late Mr. Justice Hardiman, and Denham CJ, O?Donnell J and Charleton J all handed down judgments. O?Donnell J and Charleton disagreed as to whether the relevant package in the matter was a postal packet, but Denham CJ stated such disagreement did not impact on the answering of the questions. The Court was satisfied that the interception of the package was lawful and on that basis any related evidence should have been admitted.

Ruling of the Court delivered on the 10th day of May, 2016 by Denham C.J.
1

This matter was heard by a formation of the Court including the late The Hon. Mr. Justice Hardiman.

2

The Court is unanimous in its conclusion, therefore, the Court delivers the decision of the four members of the Supreme Court.

3

The Court finds unanimously that the evidence of the cocaine found in the package addressed to a Mr. Johnson Kelly, in Phibsboro, and the other items found there, i.e. cannabis resin and a forged driving licence, were admissible evidence at the trial of the respondent.

4

The Court finds that there was lawful authority for the interception of the package by the Gardaí, and, accordingly, there was no basis for contending that the evidence obtained should have been excluded.

5

In addition O'Donnell J. and Charleton J. express differing views as to whether the package was a postal packet. By reason of the Court's decision as to interception this has no impact on the outcome of the case.

6

Thus, the question asked is answered by stating that there was no unlawful interception.

Judgment of Mr Justice Charleton delivered on Tuesday the 10th day of May 2016
1

At issue on this consultative case stated is the lawfulness of the gardaí taking custody in Germany, and opening in Dublin, a parcel containing cocaine posted in Brazil to an address in Phibsboro. The parcel contained a hollowed out book filled with a substantial quantity of cocaine. Because of a ruling adverse to the prosecution as to the lawfulness of those actions by Judge Franklin O'Donnell, at his trial in the Circuit Criminal Court the original accused, now the respondent, was acquitted of all the offences that he had not already pleaded guilty to. Under s. 34(5) of the Criminal Procedure Act 1967, as inserted by s. 21 of the Criminal Justice Act 2006, his anonymity is to be secured on this without prejudice appeal and so he will be referenced as Robert. While the parcel was not addressed to him by name at the flat where he lived, the prosecution case was that he took possession of it as part of a criminal drug-supply business. The gardaí had delivered the parcel into Robert's hands, as if in the ordinary course of post, and then obtained search warrant. On searching Robert's flat, they found the parcel unopened on a shelf, a large slab of cannabis valued at ?5,700 and 6 false driving licences. All of that evidence was ruled inadmissible but Robert had already pleaded guilty in the Circuit Criminal Court to 2 counts in the indictment under the Misuse of Drugs Acts 1977-1984 charging simple possession of cannabis and possession of same for the purpose of supply. The acquittals by direction of the trial judge were for: possession for the purpose of supply of the cocaine in the parcel, said to have a value above ?19,840; possession of that cocaine for the same purpose, but without a value ascribed; possession of that cocaine; and possession of false instruments, namely the driving licences.

2

This case was stated under a reference dated 10th March 2010, by Judge Franklin O'Donnell. Section 34 of the Act of 1967 enables this appeal by the Director of Public Prosecutions. Following a ?verdict or decision in favour of the accused person? the Director ?may refer a question of law arising during the trial to the Supreme Court for determination.? The questions posed by the Director for decision by this Court are:

1. Where the Irish law enforcement authorities suspect that an item of contraband is being sent from outside the jurisdiction to an intended recipient in the State, and where a decision is taken to effect a controlled delivery of that item, is such a delivery an interception for the purposes of the Interception of Postal Packets and Telecommunications Messages (Regulations) Act 1993 for which an authorisation from the Minister for Justice pursuant to section 2 of that Act is required where:

(a) The item is intercepted and removed from the postal system by foreign authorities before it reaches this jurisdiction and/or

(b) The members of An Garda Síochána and/or officers of Customs and Excise exercise their powers under section 14(1) of the Post Office (Parcels) Act 1882 and/or section 7 of the Criminal Justice Act 2006 to examine and/or seize that postal packet.

2. In the event that such an authorisation is required but not obtained, is evidence comprising the contents of such a packet obtained in breach of the constitutional rights of an accused who is the intended recipient of the packet where in fact it contains contraband, mandating the exclusion of the evidence in the trial of such an accused, or is the evidence obtained illegally so as to confer a discretion on the trial judge to admit same?

Background
3

Postal packets and letters are normally protected by legislation against any interference. The relevant law is set out below. This evidence was excluded because the trial judge considered that an unlawful interference had taken place and that the warrant grounding the search was also bad because it was applied for on foot of an unconstitutional discovery of information about the drugs in the parcel. Judge O'Donnell's ruling was based on these facts. About a week after the parcel had first been posted from Brazil, an officer of Customs and Excise in Dublin was alerted that a suspect package had been identified in Frankfurt, Germany, emanating from Brazil and addressed to the unusually named ?Johnson Kelly? at an address in Phibsboro, Dublin 7. That officer travelled to Frankfurt and took control of that package, without opening it, and brought it back to Dublin, to the drug unit at Store Street garda station. There, the package was opened by Inspector William Carolan. It contained a children's book, the pages of which had been cut out to form a cavity and this had been filled with a white powder, which subsequently was tested as cocaine. The gardaí and the officers of customs considered that no legal protection of the integrity of the parcel was involved. They thought that since the interception had been made in Germany that the item opened in Dublin was not then a postal packet. They resealed the package and set up what was called a ?controlled delivery?. Detective Sergeant Kenneth Donnellan posed as a postman and called to Robert's flat in Phibsboro. This was an upper-storey apartment accessed through a communal entrance with a set of individual post-boxes for the apartments. Detective Sergeant Donnellan went through that communal hallway and knocked on the front door of Robert's apartment. The door was opened by Robert, who examined the package, turning it over a couple of times and then took it inside. Telephone contact was immediately made with Inspector Carolan who obtained, from the District Court, a search warrant for the premises on suspicion that a controlled drug would be found there. That search happened about 15 minutes later. As he and his garda search team went up the stairs, they encountered Robert, originally from Nigeria, coming down. The gardaí identified themselves and showed him the search warrant and returned to the flat with him in order to search it. The package containing the cocaine was inside a small bedroom, on a shelf at the top of a black bookcase, unconcealed and unopened. When asked, Robert said there were no other drugs in the apartment: however, this was not so. Herbal cannabis in two lots, one of approximately 1 kilogram and a second of approximately 2 kilograms, totalling 2.815kgs, valued at ?5,700, as well as 6 forged driving licences were located behind the cooker hood in the kitchen. The accused was arrested and detained at Store Street Garda Station. In interview, he accepted that he knew about the cannabis because, as he claimed, a friend had brought it to the apartment, having had some difficulties with his landlord, and that he had agreed to keep it in his apartment until Friday. He said that he knew that it was ?cannabis, smoke?. He claimed that he knew nothing of the forged documents that were with the cannabis and that this friend had put a folder in the cooker hood. He told the gardaí that he knew nothing about the package that had just been delivered ?by post? and that because he thought it was a letter from the Department of Justice he just put it in the bookcase. He also explained that there were post-boxes downstairs...

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