DPP v O'Brien

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 01 January 1969
• Date: 01 January 1969

Court of Criminal Appeal.

Supreme Court.

The People (Attorney General) v. O'Brien.

THE PEOPLE (at the Suit of the ATTORNEY GENERAL)

and

GERALD O'BRIEN and PATRICK O'BRIEN (1)

Criminal law - Evidence - Admissibility - Search warrant - Error - Premises incorrectly described in warrant - Evidence obtained on foot of faulty warrant - Dublin Police Act, 1842 (5 & 6 Vict., c. 24), s. 54 - Constitution of Ireland, Art. 40, para 5.

Criminal Appeal.

On the 28th October, 1960, in the Dublin Circuit Court, Gerald O'Brien was convicted, inter alia, of the larceny of certain articles of clothing, contrary to s. 2 of the Larceny Act, 1916, and Patrick O'Brien was convicted, inter alia,of receiving the stolen property, contrary to s. 33, sub-s. 1, of the Larceny Act, 1916. All the articles were found in the course of a search of the premises, 118 Captain's Road, Crumlin, where the applicants, who were brothers, resided with their father. Detective Sergeant Healy had sworn an information that he had reason to suspect that the articles were to be found in these premises, and on such an information a search warrant in respect of these premises issued pursuant to the Dublin Police Act, 1842, s. 54, and was duly signed by District Justice Farrell. By some error the premises in respect of which the warrant was issued were described in the warrant not as "118 Captain's Road, Crumlin," but as "118 Cashel Road, Crumlin." There was no question of chicanery or deliberate alteration and it appeared that the error was accidental. In the circumstances the guards had no valid search warrant authorising them to search the premises, 118 Captain's Road. The trial Judge (Judge Conroy) having refused an application for leave to appeal, the applicants applied to the Court of Criminal Appeal for leave to appeal. On the 17th January, 1961, the Court of Criminal Appeal refused the applications of both Gerald O'Brien and Patrick O'Brien for leave to appeal against their convictions and sentences, but granted a certificate pursuant to s. 29 of the Courts of Justice Act, 1924, certifying that the decision involved a point of law of exceptional public importance, namely:—

"5. That the main bulk of the evidence . . . on which the accused was convicted rested on the production in Court of property found in the house 118 Captain's Road, Crumlin, Dublin, and which had been taken possession of there by members of the Garda Síochána while the said members of the Garda Síochána were not in possession of a valid warrant required by law authorising the search of said house and the taking possession of the said property by the said members of the Garda Síochána.

6. That the main body of the evidence put forward against the accused . . . was obtained in direct violation of Article 40, Sect. 5, of Bunreacht na hÉ;ireann hé;ireann in that the house at 118 Captain's Road, Crumlin, in the City of Dublin, was forcibly entered otherwise than in accordance with law and property taken from there and put in evidence to support a conviction.

From the above judgment the applicants appealed to the Supreme Court (4) pursuant to a certificate granted under s. 29 of the Courts of Justice Act, 1924.

G. O'B. was convicted of housebreaking and stealing and P. O'B. of housebreaking and receiving certain articles of clothing which were identified by their owners at the trial and which had been found in the course of a search by members of the Garda Síochána of the dwelling-house, No. 118, Captain's Road, where the two accused lived. A search warrant issued pursuant to the Dublin Police Act, 1842, s. 54, in respect of these premises, but by some mistake the premises were described in the warrant, not as "118 Captain's Road, Crumlin,"but as "118 Cashel Road, Crumlin." There was no question of deliberate alteration of the warrant and it was not clear whether the garda sergeant noticed the mistake before searching the premises. A certificate for leave to appeal to the Court of Criminal Appeal having been refused by the trial judge, the accused applied to the Court of Criminal Appeal for leave to appeal against their convictions and sentences on the grounds, inter alia, that most of the evidence supporting the convictions consisted in the production of property found at 118 Captain's Road, possession of which had been taken by the guards without a valid search warrant, and that such evidence was obtained in violation of Art. 40, 5, of the Constitution of Ireland, and was therefore inadmissible. The Court of Criminal Appeal (Maguire C.J., McLoughlin and Teevan JJ.) dismissed the applications but granted a certificate, pursuant to the provisions of s. 29 of the Courts of Justice Act, 1924, that the decision involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court. The point of law was certified as that set out in grounds 5 and 6 of the notice of application for leave to appeal which have been summarised above. On appeal to the Supreme Court it was

Held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Lavery, Kingsmill Moore, Walsh and Budd JJ.), dismissing the appeal, that the evidence should not be excluded.

Per Kingsmill Moore J. (with whose judgment Lavery and Budd JJ. agreed):"The mistake [in the search warrant] was a pure oversight and it has not been shown that the oversight was noticed by anyone before the premises were searched. I can find no evidence of deliberate treachery, imposition, deceit or illegality; no policy to disregard the provisions of the Constitution or to conduct searches without a warrant; nothing except the existence of an unintentional and accidental illegality to set against the public interest of having crime detected and punished. Assuming that the Judge had a discretion to exclude or receive evidence of what was discovered in the course of the search because the search was illegal, I am of opinion that such discretion was rightly exercised in receiving the evidence . . .

Mr. Justice Walsh, in the judgment which he is about to deliver, is of opinion that where evidence has been obtained by the State or its agents as a result of a deliberate and conscious violation of the constitutional (as opposed to the common law) rights of an accused person it should be excluded save where there are 'extraordinary excusing circumstances,' and mentions as such circumstances the need to prevent an imminent destruction of vital evidence or rescue of a person in peril, and the seizure of evidence obtained in the course of and incidental to a lawful arrest even though the premises on which the arrest is made have been entered without a search warrant. I agree that where there has been such a deliberate and conscious violation of constitutional rights by the State or its agents evidence obtained by such violation should in

general be excluded, and I agree that there may be certain 'extraordinary excusing circumstances' which may warrant its admission. I would prefer, however, not to attempt to enumerate such circumstances by anticipation. The facts of individual cases vary so widely that any hard and fast rules of a general nature seem to me dangerous and I would again leave the exclusion or non-exclusion to the discretion of the trial judge . . . This case is not one of deliberate and conscious violation, but of a purely accidental and unintentional infringement of the Constitution. In such cases, as Mr. Justice Walsh indicates, the evidence normally should not be excluded."

The judgment of the Court was delivered by Maguire C.J.:—

Maguire C.J. :—

In this case Gardai, having arrested the applicants and having ascertained where they resided, sought a warrant to search No. 118 Captain's Road. By mistake a warrant was granted in respect of No. 118 Cashel Road. In purported exercise of their authority under this warrant the Gardai searched No. 118 Captain's Road. They found a number of articles which were subsequently offered in evidence at the trial. Objection was taken to the admission of this evidence on the grounds that the search warrant did not authorise the Gardai to search 118 Captain's Road. Being obtained without a warrant, it was submitted, the evidence having been illegally obtained was inadmissible. This objection was overruled. The evidence was admitted. The applicants having been convicted, an application was made for a certificate that the case was fit for appeal on a single ground, namely, that evidence which was inadmissible had been admitted. A certificate was refused. There are a number of grounds in the application for leave to appeal in addition to this ground.

Mr. O Síocháin asked permission to add a further ground, that charges of breaking with intent should not have gone to jury, on the ground that the evidence could only support a charge of intent to obtain money by false pretences. This Court refused to add this ground. Another ground which was argued by Mr. O Síocháin was that the number of charges brought against the applicant were an embarrassment and that there was an unreasonable multiplicity of charges. This point was not taken at the trial, but this Court has allowed it to be argued and given full consideration to it and has decided that it is unsustainable. There was nothing unreasonable in the number of charges brought. They were all interconnected and sprang from the same set of incidents. Furthermore when it went to the jury the number was reduced by direction to five. The point should, moreover, have been raised at the opening of the trial when the Judge in exercise of his discretion could have directed that the trial on some of the charges should be postponed.

The main and serious ground argued is that the admission of evidence obtained by the Gardai when they searched the house was improper. We have formed an opinion and do not consider it necessary to call upon the Attorney General. The question was...