DPP v Byrne, Healy & Kelleher
| Jurisdiction | Ireland |
| Judge | Keane J. |
| Judgment Date | 17 December 1997 |
| Neutral Citation | 1998 WJSC-CCA 5287 |
| Docket Number | No. 2, 7 & 8./1996 |
| Court | Court of Criminal Appeal |
| Date | 17 December 1997 |
1998 WJSC-CCA 5287
THE COURT OF CRIMINAL APPEAL
Keane J.,
Lavan J.,
Quirke J.,
and
Citations:
OFFENCES AGAINST THE STATE ACT 1939 S30
OFFENCES AGAINST THE STATE ACT 1939 PART V
CRIMINAL JUSTICE ACT 1984 S24(1)(a)
MISUSE OF DRUGS ACT 1977 – 1984
DPP V FORBES 1993 ILRM 817
ROAD TRAFFIC ACT 1961 S49
AG, STATE V FAWSITT 1955 IR 39
KEATING V GOV OF MOUNTJOY PRISON 1991 1 IR 61
DPP V HARRINGTON UNREP CCA 31.7.1990 1990/6/1622
MURRAY V DPP 1977 IR 360
HOBSON V IMPETT 1957 41 CAR 138
MISUSE OF DRUGS ACT 1977 S29(2)
MISUSE OF DRUGS ACT 1977 S29
WARNER V METROPOLITAN POLICE COMMISSIONER 1969 2 AC 256
MISUSE OF DRUGS ACT 1971 (UK) S28(3)
MISUSE OF DRUGS ACT 1977 S29(2)(a)
R V MCNAMARA 1988 87 CAR 246
ARCHBOLD CRIMINAL PLEADING EVIDENCE & PRACTICE (1997) PARA 26.59
FORGERY ACT 1913 S8
FORGERY ACT 1913 S11
CRIMINAL JUSTICE ACT 1984 S24(1)
Synopsis
[1998] 2 IR 417
In the early hours of the morning of July 9th 1994, a number of detective gardai were on the beach at Ballyconneely in Connemara. They were there because they believed that an attempt would be made under cover of darkness in that remote part of the country to import a large quantity of illegal drugs.
At about 1.15am, a large white camper van came down the public road and turned on to the beach area where it stopped with its lights shining seawards. A person used a torch to flash red, white, green and orange signals out to sea. At about 4.20am, when dawn was breaking, a small dinghy, with two men on board dressed in "survival" suits, approached the beach. The weather, which initially had been very bad, had now improved, but the men had still some difficulty in landing the dinghy on the breach. When they did, they were met by four other men. These four, who had earlier been seen digging on the beach with shovels, were then given bulky packages, some of which they dropped on the ground. Meanwhile, the dinghy had put to sea again.
The four men got into the camper van and attempted to start it. The driver, however, had difficulty in getting it off the grass and three of the men got out and tried and push it from the rear. At this stage, the gardai who were observing the movements on the beach were instructed by radio to move in.
When the gardai emerged from their hiding places and were seen by the four men - who were the three applicants and another defendant in the subsequent court proceedings, John McKeon - the latter ran away but were seized by the gardai who arrested them under s.30 of the Offences Against the State Act1939.They were then brought to Mill Street Garda Station in Galway and there detained under s.30. They were subsequently brought before the District Court on charges of being in unlawful possession of a controlled drug, i.e. cannabis resin, of being in possession of it for the purpose of selling it or supplying it to others and of unlawfully importing the same.
The applicants and John McKeon (who are collectively henceforth referred to as "the defendants") were returned for trail by the District Court to the Circuit Court sitting at Galway. The trial before Judge Dominic Lynch and a jury began on the following 31st October and concluded on the 18th December 1995. Each of the defendants was represented by one senior and one junior counsel.
During the course of the trial, counsel for the prosecution sought to adduce evidence of statements alleged to have been made by the defendants while they were detained by the gardai. This was objected to on behalf of the defendants on the ground that their purported arrest and subsequent detention was not authorised under s.30 of Offences against the State Act1939(hereafter "the 1939 Act"), that their detention was accordingly unlawful and that statements allegedly made by them to the gardai while in such unlawful detention were inadmissible.
The evidence in relation to this issue was heard by the trial judge in the absence of the jury. The gardai gave evidence that they had arrested and detained the men concerned at a time when they suspected that they were in unlawful possession of firearms. It was accepted that, this being a scheduled offence for the purposes of Part V of the 1939 Act, the gardai would have been entitled to stop, arrest and detain the persons concerned if they in fact suspected them of having committed such an offence. Having heard the evidence on the issue, the trial judge found that, while the gardai initially suspected that the defendants were in possession of firearms, once a search had been carried out and no firearms were found, that suspicion no longer existed so as to justify the exercise of their powers under S.30. He said:
"I am satisfied that, on the information they had, that had a suspicion and they were entitled to do what they did, but I will use a neutral word, I will say they were entitled to “apprehend” the four accused, but the question is, were they entitled to detain them, particularly after the search had been carried out and it transpired that there were no arms… I am satisfied that such bona fide suspicion that did exist on the evidence expired and that at the time of the removal of all four accused from the beach, the bona fide suspicion was well and truly spent. I am satisfied on the evidence that the bona fide suspicion was no longer justified or could be justified and, therefore, I must rule the detention, based on the Section 30 arrest, was unlawful."
The trial judge, accordingly, held that the statements allegedly made while the defendants were so unlawfully detained were inadmissible.
Evidence was given by the gardai as to the events which occurred on the beach prior to the arrest of the defendants. Gardai also gave evidence as to having seen the first and second named applicants and John McKeon in a car earlier that evening at the forecourt of a licensed premises in Maam Cross. There was also evidence as to the renting of vehicles by the defendants, including the renting by the third named applicant of the camper van. The evidence as to the packages found by the gardai on the beach was that they consisted of 22 bales which contained slabs of resinous material. A forensic scientist, Mrs. Mary O'Connor, gave evidence that, on analyses, this proved to be cannabis resin, the total weight 640.4 kilograms.
At the close of the prosecution's case, counsel on behalf of each of the defendants applied for a direction in respect of each of the counts. The trial judge, having heard submissions, acceded to the application in respect of the count of unlawfully importing a controlled drug and rejected the application in respect of the other two counts. He was then informed by senior counsel appearing for the first named applicant that he, his junior and his solicitor had been discharged from the case by their client, who now wished to represent himself. The first named applicant having confirmed to the trial judge that that was his wish, the trial judge invited him to consider whether that course was in his interest and remarked that his counsel had done a very good job for him. The first named applicant having reiterated his desire to defend himself, the trial judge informed him as to his rights in relation to giving evidence and addressing the jury. Counsel for the remaining three defendants having informed the trial judge that they would not be going into evidence, the trial judge told the first named applicant that, if he wished to say anything to the jury about his involvement in the matters the subject of the trial, he would have to do so on oath in the witness box and that he could only address the jury in the same manner as counsel would on the evidence which had been given. The first named applicant in response said that he thought that he understood what he has being told by the trial judge.
Before counsel began making their closing addresses to the jury, counsel on the behalf of the second-named applicant submitted that, having regard to the fact that one of the defendants was not now professionally represented and was no going into evidence, counsel for the prosecution was not entitled to make a closing address to the jury, citing the provisions of S.24(1)(a) of the Criminal Justice Act1984.The trial judge, however, said that he was satisfied that counsel for the prosecution was entitled, in the circumstances of this case, to make a closing speech.
After counsel for the prosecution had addressed the jury, the first named applicant began his speech as follows:
"Ladies and gentlemen of the jury, I know it has been hectic for you for the past two weeks or so listening to all kinds of evidence, so I don't intend wasting any more of your time. I don't think it is necessary for me to go into the finer details, so I will go straight to the point, as there is two sides to every story. Johnny McKeon, my co-defendant, and myself left Dublin for the West of Ireland for a break. In just so happens that…"
At that point, counsel for the prosecution intervened and said that he had an application to make in the absence of the jury. The jury having retired, the trial judge heard submissions and said that he was satisfied that the first named applicant had deliberately adopted a stratagem of attempting to disrupt the trial by having the jury discharged. He accordingly declined to allow the first named applicant to continue with his address.
It also appears from the transcript of evidence that the trial judge was concerned that, because of discussions he could see taking place at the back of the court between the first named applicant and John McKeon, a concerted attempt was being made to bring about a discharge of the jury. The trial judge referred...
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