DPP v Balfe

• Jurisdiction: Ireland
• Judge: MrJustice Francis D Murphy
• Judgment Date: 17 January 2000
• Neutral Citation: 1998 WJSC-CCA 5240,2000 WJSC-CCA 2420
• Date: 17 January 2000
• Docket Number: [C.C.A. No. 35 of 1997]
• Court: Court of Criminal Appeal

DPP v. BALFE

The People at the suit of the Director of PublicProsecutions

v

Veronica Balfe

Applicant

1998 WJSC-CCA 5240

Murphy J

Lavan J

Budd J

35/96

COURT OF CRIMINAL APPEAL

Synopsis:

- [1998] 4 IR 50

Citations:

LARCENY ACT 1916 S33(1)

LARCENY ACT 1990 S3

LARCENY ACT 1916 S42(1)

AG, PEOPLE V O'BRIEN 1965 IR 142

COURTS OF JUSTICE ACT 1924 S29

DPP V KENNY 1990 2 IR 110

MISUSE OF DRUGS ACT 1977 S26(1)

DPP, PEOPLE V SHAW 1982 IR 1

DPP V DUNNE 1994 2 IR 537

MISUSE OF DRUGS ACTS 1977 – 1984 S26

BYRNE V GREY 1988 IR 31

CRIMINAL LAW ACT 1976 S9

1 MrJustice Francis D Murphyon the 15th day of may 1997.

2 This is an application by the above named Veronica Balfe for leave to appeal from her conviction on the 16th February 1996 of handling stolen property contrary to Section 33 (1) of the Larceny Act 1916 as inserted by Section 3 of the Larceny Act 1990and also from the sentence imposed on her in respect thereof.

3 It is not in dispute that a television set, a video recorder and a CD player were stolen from the home of the owner Mr David McEvoy of 26 Rockfield Green,Maynooth, on the 5th of January 1995. Mr McEvoy immediately notified the Gardai who on the 6th day of January commenced an investigation into the matter by taking details of the stolen property from the owner. On the 3rd day of February 1995 Mr McEvoy attended in Nass Garda Station where he identified as his property the equipment which had been recovered by the Gardai in the circumstances hereinafter described.

4 Richard Gamble was one of the investigating Gardai. It appears that on the day the investigation commenced he received information that the property taken from Mr McEvoy's house was in the possession of Veronica Balfe at an address in Forest Hills, Rathcoole, specified by the informant as "number 5". In those circumstances Garda Gamble prepared an information and drafted a form of search warrant preparatory to applying to Judge Gillian Hussey of the District Court at Kilmainham, Dublin, for the appropriate warrant. He subsequently made the application and after a hearing, which involved the Judge making certain inquiries of the Garda, the search warrant was issued. As much of the argument before the trial Judge and in this Court concerned ambiguities or inconsistencies in or between the information and the search warrant it may be helpful to refer to photo stat copies of those documents rather than reconstructed copies thereof.

5 appears to me as a result of information on cath of a ??? of ??? Garda Station there is reasonable cause to believe that ??? in his custody ???or possession or ???on his premises ??? property, to wit;

6 respect to which an offence against the Larceny Act 1916 been committed. Accordingly, I grant this search warrant.

7 warrant is to authorise the said Garda ??? any other member of An Garda Siochana to search for and to a such property.???

8 ???

9 Having obtained the search warrant Garda Gamble with three of his colleagues called to 34 Forest Hills, Rathcoole, where they met with Eddie and Veronica Balfe. The Gardai, without any opposition from Mr or Mrs Balfe, searched the premises and recovered the goods which were clearly established as those stolen from the house of Mr McEvoy. It is also material to note that one other item, a camera, was found by Garda Gamble which he believed to have been stolen and which accordingly he removed but which was later returned by the Gardai to Mrs Balfe as it was not claimed by any injured party.

10 As it was Mrs Balfe who accepted responsibility for the goods found at 34 Forest Hills she was charged with the offence of handling those goods contrary to the provisions of Section 33 (1) of the Larceny Act 1916 as inserted by Section 3 of the Larceny Act 1990.The particulars of the charge were expressed as follows:-

"Veronica Balfe on the 6th January 1995 at 34 Forest Hills Rathcoole in the County of the City of Dublin handled stolen goods, namely, a compact disc player, a television set and video recorder the property of David McEvoy knowing or believing such property to bestolen."

11 Mrs Balfe was found guilty of that offence and sentenced to a term of 4 years imprisonment to be suspended on terms which included the payment of a fine of £1,800.00 and compensation to Mr McEvoy in the sum of£200.00. Such fine and compensation to be paid within 6 months from the date of the sentence.

12 In the Notice of Application for leave to appeal dated the 23rd February 1996 the Applicant sets out nine grounds (the original grounds) on which it is contended that the conviction was unsafe and unsatisfactory and a further ground contending that the sentence imposed on the Appellant was excessive. In addition a motion was listed for hearing with the appeal seeking to extend or expand the ten grounds aforesaid. The amendment was permitted by the Court and the further grounds are hereinafter referred to as "the additional grounds"

Grounds 1 and 2:-

13 The first and second grounds of appeal contain a challenge to the validity of the information and search warrant aforesaid separately and in combination one with the other. The significance, perhaps the only significance, of thischallenge can be found in the additional ground which introduced thecontention:-

"The learned trial Judge wrongly admitted in evidence the finding of goods during an unconstitutional search made following on said information and warrant."

14 It was pointed out that the address on the information was incorrect; the date given for the larceny was incorrect and a name - Eddie Balfe -, and not that of Veronica Balfe, appeared on the information. As to the search warrant it was pointed out that it was addressed to a person other than the Appellant and it was emphasised that the search warrant contained an amendment which was "unsuitable, inappropriate, unclear, ambiguous and unlawful". The basis of that contention can be seen by reference to the photostat copy of the search warrant and in particular the amendment or attempted amendment of the number of the house at Forest Hills, Rathcoole. It is also correctly asserted that the address on the search warrant does not conform to that given in the information. The address of the house to be searched was given in the information as 5 Forest Hills, Rathcoole, and in the warrant is described, as a result of amendment, as 34 Forest Hills,Rathcoole.

15 Again there is no doubt that the date of the theft is given in the information as the "5/1/94" when the incident clearly occurred one year later. It was also contended that "the proper procedure for the issuing of a search warrant was not complied with".

16 All of the foregoing arguments were debated at some length before the learned trial Judge and, where appropriate, explored in evidence before him. Those arguments were rejected and the goods found in the course of the search were admitted in evidence on the trial. The additional grounds included, however, an argument that had not been raised before the trial Judge, namely, that the search warrant was invalid because itcontained:-

17 "No reference to the goods sought."

18 Reference to the warrant confirms that this is so but why the description of the goods contained in the information was not transposed into the warrant, either by the Garda who drafted it or the Judge who issued it, was not discussed or adverted to in any way before the trialJudge.

19 Search warrants are now granted by judges of the District Court in appropriate circumstances pursuant to numerous acts of the Oireachtas and earlier acts of Parliament including the Larceny Act 1916, Section 42 (1). It was the 1916 legislation which provided for the granting of a search warrant in respect of stolen goods and that section effectively consolidated the power which existed at common law to grant search warrants. Section 42 (1) of the 1916 Act as amended and adapted provides as follows:-

"If it is made to appear by information on oath before a Judge of the District Court or a Peace Commissioner that there is reasonable cause to believe that any person has in his custody or possession or on his premises any property whatsoever, with respect to which any offence against this Act has been committed, the Judge or Commissioner may grant a search warrant to search for and seize the same."

20 Two reported decisions of the Supreme Court dealing with search warrants demonstrate how different defects in such instruments can have very different consequences.

21 In the People (Attorney General) and O'Brien [1965]I.R. 142 a problem arose as a result of a search warrant sought and granted under Section 54 of theDublin Police Act 1842. The Gardai who were investigating certain burglaries were desirous of searching the house known as "118Captains Road, Crumlin". An information for the purpose of applying to the District Court for the necessary warrant was duly completed and sworn. District Justice Farrell acceded to the application but as a result of some mistake, which was caused by a pure oversight, the warrant which was issued described the premises not as "118 Captains Road, Crumlin" but as "118Cashel Road, Crumlin". In purported exercise of their powers under the search warrant the Gardai searched the premises 118 Captains Road and recovered the goods which largely formed the basis of the evidence on which the Appellants in that case were convicted of housebreaking and stealing. On appeal to the Court of Criminal Appeal the decision of the trial Judge to admit in evidence the goods seized at Captains Road was upheld and on an appeal to the Supreme Court, pursuant to a certificate under Section 29 of the Court of Justice Act 1924, that Court unanimously upheld the decision. The decision of the Supreme Court can be summarised by saying that, whilst the search was not authorised by the search warrant actually issued, the...