DPP v Boggans

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMr. Justice Sheehan
Judgment Date09 Mar 2015
Neutral Citation[2015] IECA 46

[2015] IECA 46

THE COURT OF APPEAL

The President

Sheehan J.

Edwards J.

No. 198/13
DPP v Boggans
The People at the Suit of the Director of Public Prosecutions
V
Alan Boggans
Appellant

Conviction – Drug offences – Appeal against conviction and sentence – Appellant seeking to appeal against conviction and sentence – Whether the appellant received a fair trial

Facts: The appellant, following trial in the Dublin Circuit Criminal Court, was found guilty of an offence contrary to s. 15A of the Misuse of Drugs Act, as amended, in respect of the possession with intent to supply of cannabis resin to the value of approximately €2 million together with two related offences contrary to ss. 3 and 15 of the Misuse of Drugs Act 1977. The appellant was sentenced to thirteen years imprisonment in respect of the s. 15A offence and the two other offences were taken into consideration. The appellant appealed to the Court of Appeal against conviction and sentence. The appellant, relying upon Damache v DPP [2012] 2 IR 266, attacked the validity of the search warrant, alleging that Detective Superintendent O”Leary, who issued the warrant, was not an independent party as he was involved in the investigation into the offence. The appellant also submitted that the circumstances of urgency which must exist to allow a Superintendent to issue a search warrant did not exist at the time or arose from a failure by the gardaí to ensure that they had a judge of the District Court or a Peace Commissioner on standby to issue a warrant when that became necessary. Finally, the appellant said that Detective Superintendent O”Leary could not have given proper consideration to the matter as his evidence disclosed that he had issued the warrant within one minute of being asked to do so. The appellant”s contention that his arrest was unlawful arose in circumstances where he maintained that his detention for a short while prior to his arrest was unlawful because Detective Garda Carroll, to whom the search warrant was addressed, was not present at the time when this occurred. He said that as a result of this, his arrest was tainted and was unlawful. The respondent, the DPP, submitted that the authority to enter the premises accompanied by other members is not exceeded in circumstances where, for good reasons, other members of the garda team entered in advance of the member named on the warrant. The appellant contended that his trial was unsatisfactory on grounds related to the absence of full disclosure, the refusal of the trial judge to allow CCTV footage to be played during cross-examination of a prosecution witness, allegedly unfair interventions by the trial judge and a refusal by the trial judge to discharge the jury following a particular answer given by a prosecution witness under cross-examination.

Held by Sheehan J that the circumstances of the garda operation were such that it was wrong to characterise the evidence as being contrived in the sense that procedures could have been put in place at an earlier stage and the Court agreed with the respondent”s submission that this proposition ignored the fact that the presence of the appellant at the location was necessary prior to any application for a warrant. Sheehan J distinguished the Damache case in that it involved the issuing of a search warrant relating to the applicant”s home while in this case the premises were commercial and owned by a third party in circumstances where the appellant was unable to invoke any proprietary or constitutional interest. Accordingly, the Court held that the appellant”s challenge to the validity of the warrant must fail. The Court held that the authority of the search warrant was not exceeded as to hold otherwise would be entirely disproportionate. Sheehan J held that the appellant had failed to establish that there was material on the CCTV footage which would have assisted him in his cross-examination. Sheehan J held that the trial judge was perfectly entitled to intervene as he did, a dispute having arisen as to what the witness had actually said; there was nothing unusual in this type of intervention in a criminal trial. The Court held that the answer by the witness did not affect the fairness of the trial and any potential prejudice was adequately counteracted by the judge”s charge.

Sheehan J held that the appellant received a fair trial in accordance with law and dismissed the appeal.

Appeal dismissed.

1

Judgment of the Court delivered on the 9th day of March 2015, by Mr. Justice Sheehan

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1. This is an appeal against conviction and sentence. Following a six day trial in the Dublin Circuit Criminal Court, the appellant was found guilty of an offence contrary to s. 15A of the Misuse of Drugs Act, as amended, in respect of the possession with intent to supply of cannabis resin to the value of approximately €2 million together with two related offences contrary to ss. 3 and 15 of the Misuse of Drugs Act 1977.

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2. The appellant was sentenced to thirteen years imprisonment in respect of the s. 15A offence and the two other offences were taken into consideration.

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3. This judgment is solely concerned with the appellant's conviction.

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4. The appellant challenges the conviction under eight different grounds of appeal which he sets out as follows:

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1. The learned trial judge erred in law in his rulings and in his determinations.

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2. Without prejudice to the generality of the foregoing, the learned trial judge erred in his rulings and in his determinations concerning (a) the validity of the search, (b) the validity of the arrest, and (c) the admissibility of evidence.

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3. The conduct of the trial was unsatisfactory and in all the circumstances the appellant was denied a fair trial and/or a trial in due course of law.

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4. Without prejudice to the foregoing, the appellant's trial was unsatisfactory because:

(a) the prosecution did not make full disclosure,
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(b) the learned trial judge required the trial to proceed notwithstanding the late and/or incomplete disclosure,

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(c) the trial judge refused to afford facilities and/or permit counsel for the appellant to play relevant CCTV footage whilst cross-examining prosecution witnesses in respect of matters depicted thereon and in circumstances where the judge was requested by counsel to cause or permit the CCTV footage to be played,

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(d) the learned trial judge erred in denying the appellant the opportunity to play the CCTV in the course of cross-examination and that refusal was very prejudicial to the appellant as the jury very clearly, in its deliberations, sought to view that CCTV footage.

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(e) the trial judge interrupted and interjected during the trial and did so during the cross-examination by defence counsel in a manner prejudicial to the appellant.

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5. The trial judge refused to discharge the jury when asked to do so in circumstances where he should have so acted after unsolicited prejudicial testimony touching on the appellant's exercise of his right to silence was proffered by a witness for the prosecution.

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6. The learned trial judge failed to properly consider and/or determine the submissions made on behalf of the appellant and, without prejudice to the foregoing, he so erred in law or in fact when considering the issues pertaining to the search and arrest.

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7. The legislation, pursuant to which the gardaí purported to act, is unconstitutional and the evidence gleaned as a result is inadmissible.

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8. The trial judge misdirected himself in law and he fell into error, and he so erred in his charge to the jury.

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5. In order to consider these grounds of appeal it is necessary to set out the circumstances of the offences.

The background
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6. On the 1st September, 2009 as a result of confidential information, the Garda National Drugs Unit put in place a surveillance operation in the Rathcoole area of Dublin, which was focused on the appellant.

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7. At approximately 8.15 pm, a van driven by the appellant's brother-in-law and suspected to contain a large quantity of drugs was observed entering the premises of Celtic Truck Wash and Parking in the Green Oak Business Park, Rathcoole. About twenty minutes later, at about 8.35 pm, the appellant was seen driving into the said premises in a silver BMW vehicle. He was followed by a taxi.

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8. At this point it was decided to obtain a search warrant for Celtic Truck Wash and Parking. Having ascertained that it would take some hours before a judge would be available to entertain an application for a warrant and learning when they called to a local Peace Commissioner's house that he was not at home, an application was made to a Superintendent for a warrant pursuant to s. 26(2) of the Misuse of Drugs Act 1977, authorising entry and search of the Celtic Truck Wash and Parking premises and the warrant was then issued.

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9. There was some dispute about exact timings, but the evidence suggested that the gardaí entered the premises shortly after 9.00 pm and a garda van went directly to the area of the park where a white Mercedes van was parked between a bus and a large container facing outwards.

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10. The appellant and his brother-in-law were observed looking around the side of the white van in the direction of the gardaí who had announced their presence and who were wearing distinctive garda clothing. Detective Sergeant O'Connell identified the appellant being at the back of the white Mercedes van. Both men ran to the rear of the van when the gardaí arrived, but the appellant doubled back and ran across the front of the garda van which had been driven into the premises of Celtic Truck Wash and Parking by Detective Garda Barber. The appellant ran to another part of the park where he was stopped by gardaí. Drugs were found inside the white...

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