DPP v Bowes

• Jurisdiction: Ireland
• Judge: FENNELLY J.
• Judgment Date: 22 November 2004
• Neutral Citation: [2004] IECCA 44
• Court: Court of Criminal Appeal
• Docket Number: [C.C.A. No. 139 of 2003]>
• Date: 22 November 2004

[2004] IECCA 44

COURT OF CRIMINAL APPEAL

Fennelly J.

Kelly J.

Peart J.

139/2003

DPP v. BOWES

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

-v-

JAMES BOWES

Applicant

Citations:

MISUE OF DRUGS ACT 1977 S15(a)

CRIMINAL JUSTICE ACT 1999 S4

MISUE OF DRUGS ACT 1977 S27

CRIMINAL JUSTICE ACT 1999 S5

MISUSE OF DRUGS ACTS 1977–1984 S23

MISUE OF DRUGS ACT 1977 S15

CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S2

CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S2(2)(a)

CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S2(2)(b)

CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S2(2)(c)

CRIMINAL JUSTICE ACT 1984 S6

DPP V FINNERTY 1999 4 IR 364

DPP V MCGARTLAND UNREP CCA 20.1.2003 2003/18/4139

CRIMINAL JUSTICE ACT 1984 S8

CRIMINAL JUSTICE ACT 1984 S8(1)

ZAMBRA V MCNULTY 2002 2 IR 351 2002 2 ILRM 506

CRIMINAL PROCEDURE ACT 1976 S5

CRIMINAL JUSTICE ACT 1984 S8(2)

CRIMINAL PROCEDURE ACT 1967 S8(5)

CRIMINAL JUSTICE ACT 1999 PART III

CRIMINAL PROCEDURE ACT 1967 PART 1A

KENNELLY V CRONIN 2002 4 IR 292 2003 1 ILRM 505

CRIMINAL JUSTICE ACT 1924 S29

CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S7

CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S7(2)

BOWES & MCGRATH V DPP 2003 2 IR 25

Synopsis:

WORDS AND PHRASES

"Discharge" - "Discontinued" - Criminal proceedings - Whether striking out of proceedings by District Judge discontinuance of proceedings - Whether voluntary act of prosecuting authority necessary for discontinuance - Whether striking out of proceedings in District Court discharge of accused - Criminal Procedure Act 1967 (No 12), s 8(5) - Criminal Justice Act 1984 (No 22), ss 6 and 8 - Appeal allowed (139/2003 - Court of Criminal Appeal - 22/11/2004) - [2004] IECCA 44

People (DPP) v Bowes

The applicant was convicted of drugs related offences. He applied for leave to apply against his conviction. The Gardai had carried out what was called a "hit" against a car acting on what was described as "confidential information" relating to the applicant. The applicant relied on fourteen grounds of appeal including: that there had been an infringement of his right to silence with regard to either his admissions or his silence; that the details of the evidence regarding the alleged "confidential information" should not have been given; and that fingerprint evidence should not have been admitted on the basis that the prints should have been destroyed pursuant to the Criminal Justice Act 1984.

Held by the Court of Criminal Appeal in treating the application for leave to appeal as the hearing of the appeal, allowing an appeal and ordering a re-trial that the evidence regarding the "confidential information" should not have been given as it could lead the jury to the inference that the accused was known to the police previously. The fingerprint evidence should have been destroyed and therefore not admitted. The ground of appeal relating to the right to silence succeeded insofar as reliance was placed on the failure of the applicant to comment on pieces of evidence produced to him.

Reporter: R.W.

1 JUDGMENT of the Court delivered on the 22nd day of November, 2004 by FENNELLY J.

2 The Applicant was convicted on 8 ^th July 2003 in the Circuit Criminal Court, before His Honour Judge O'Donnell and a jury, on two counts of possession on 3 ^rd April 2000 at James's Street, Dublin of a controlled drug, namely diamorphine or heroin. The first count was of possession for sale or supply. Since the market value was in excess of £10,000, the offence was covered by section 15A (as inserted by section 4 of the Criminal Justice Act, 1999) and section 27 (as amended by section 5 of the same Act of 1999) of the Misuse of Drugs Act, 1977. The Applicant was sentenced to serve a term of twelve years imprisonment on the first count, the final two years being suspended. He has applied to this Court on a number of grounds for liberty to appeal against his conviction.

The Facts

3 On 3 ^rd April 2000, members of the Garda National Drug Unit, using six unmarked Garda cars, carried out what, at the trial, was called a "hit" against a grey Honda registration number 92 D 7570. They were acting on what was described as "confidential information received by Detective Sergeant Walsh."

4 In respect of the details and nature of the alleged "confidential information," evidence was led at the hearing, firstly, that one garda witness, Detective Sergeant Doran, was aware that Detective Sergeant Walsh "was aware of confidential information in relation to importation and distribution of substantial quantities of diamorphine" and, secondly, when the latter came to give evidence that the "confidential information" related to "the accused James Bowes, the man in the dock."

5 The time of the police operation was 3 pm; the traffic was heavy; the weather was sunny; the car was being driven by the Applicant, who was alone in the car.

6 The operation was apparently led by Detective Garda (later Detective Sergeant) Patricia McGarrity. She abandoned her car and approached the Honda and produced her Garda identification card to the driver, the Applicant. She told him that she and the other people there were gardaí. She informed him that she had grounds for believing that he had controlled drugs in his possession and that she was stopping and searching him and his vehicle under section 23 of the Misuse of Drugs Acts 1977–1984. She cautioned him in the usual terms. The gardaí blocked the car. Detective Garda Doran said that the Applicant was accelerating hard on the car, though it was not moving. Detective Garda McGarrity and Detective Garda Collis took the Applicant out of the car. They restrained him by placing him on the ground face down.

7 While the caution was being administered, the car was being searched. Detective Garda Carey called to Detective Garda McGarrity: "Patricia, there's drugs in the boot, heroin in the boot." She then informed the Applicant that he was no longer being detained for the purpose of search but that she was now arresting him for an offence under section 15 of the Misuse of Drugs Act. Having administered the usual legal caution, Detective Garda McGarrity explained to the Applicant the reason for his arrest. She asked him if there were any more drugs in the car. He replied: "only the bags of gear in the boot." She asked if there were any needles or syringes in the car, to which he replied: "no." Detective Garda Doran said he heard the exchanges between Detective Garda McGarrity and the Applicant, including the answers to the two questions. He said that he noted these in his notebook, which he produced at the trial. It was common case that the entire operation at James's Street took a matter of minutes. The Applicant was not, at that point, shown what the gardaí had found in the boot or asked to comment.

8 The Applicant, both through cross-examination by his counsel and in his own evidence, denied that he was cautioned or that he was asked or answered the two questions mentioned at the end of the preceding paragraph. His case, at all times, was that he was put on the ground with his clothes over his head and that he could not hear what was going on.

9 Detective Garda PJ Carey he said that he found two plastic sacks side by side in the boot of the car. Each contained three brown plastic wrapped packages containing powder. On analysis, five of the six sacks were found to contain heroin. The total quantity was almost five kilos. The concentration was between 56% and 63%. Also in the boot were weighing scales packed in a cardboard box. This is material to a fingerprint issue mentioned later. In the front of the car, there was found a green jacket in which was found a receipt dated 2 ^nd April 2000 for the purchase of the weighing scales. The Detective Garda said that, having informed Detective Garda McGarrity of what was in it, he jumped into the car and drove it out of the area. He took it to Blanchardstown Garda Station.

10 The Applicant, now under arrest, was also taken to Blanchardstown Garda Station, where the garda investigation continued. His detention was authorised pursuant to section 2 of the Criminal Justice (Drug Trafficking) Act, 1996. That authorisation was for an initial period of six hours from the time of arrest (section 2(2)(a)), which was duly extended for eighteen hours (section 2(2)(b)) and further extended for twenty four hours (section 2(2)(c)). The legality of the arrest or further detention was not contested. In addition, authority was given pursuant to section 6 of the Criminal Justice Act, 1984for the Applicant to be photographed and fingerprinted.

11 Detective Garda Doran said that, as the Applicant was being placed in a cell in Blanchardstown Garda Station, having cautioned him, he read over to him the notes from his notebook of what he had said, in answer to questions from Detective Garda McGarrity in James's Street and that the Applicant agreed that the notes were correct but refused to sign. All of this was confirmed in the evidence of Detective Garda Collis, but denied by the applicant.

12 The Applicant was questioned in Blanchardstown from 3 ^rd April to the evening of 4 ^th April. The admissibility of his answers to garda questioning was contested on voire dire, though not on the basis that his answers were not voluntary, but rather that they were prejudicial rather than probative and tended to prejudice, in particular, his reliance on his constitutional right to silence.

13 The learned trial judge made a number of rulings on admissibility. It is best, in the first instance, to describe the evidence which was admitted and, therefore, heard by the jury. The following is the evidence from the interviews that was admitted:

1.	Q.	Do you understand the caution?
	A.	Yea
	Q.	Do you understand the reason for your arrest?
	A.	No.
	Q.	The reason you were...