DPP v Desmond Collins

• Jurisdiction: Ireland
• Judge: O”Donnell J.
• Judgment Date: 31 July 2014
• Neutral Citation: [2014] IECCA 30
• Court: Court of Criminal Appeal
• Date: 31 July 2014

[2014] IECCA 30

THE COURT OF CRIMINAL APPEAL

O”Donnell J., Moriarty J., Herbert J.

CCA No. 161CPX/12 Bill No. LH17/12

Between/

The People at the Suit of the Director of Public Prosecutions

Prosecutor/Appellant

And

Desmond Collins

Defendant/Respondent

Search Warrant – Criminal Appeal – Jurisdictional requirements - Possession of a Controlled Substance – Abuse of Process – Admissibility of evidence – Director of Public Prosecutions

The facts of this case involved the defendant, being a suspected of possessing Diamorphine, having charges dropped against him by Judge O”Shea sitting in the Eastern circuit court due to the invalidity of a search warrant. The warrant in question was judged to have had Jurisdictional errors. Unsatisfied with the result of the lower court the Director of Public Prosecutions appealed to the court of Criminal Appeal against the dismissal. The case was heard before judges O”Donnell J., Moriarty J. and Herbert J. who also heard a motion brought by the respondent to dismiss the Director”s application on grounds of abuse of process and inordinate and inexcusable delay.

Firstly the Court accepted that it has jurisdiction to dismiss an appeal for want of prosecution. The court then examined the specific wording of the warrant in question to see if it met the standards established in case law. The court considered the requirements for a valid warrant with specific jurisdiction and examined the cases Simple Imports Ltd. v. The Revenue Commissioners [2000] 2 I.R. 243 and The People (The Director of Public Prosecutions) v. Edgeworth [2001] 2 I.R. 131.However the court drew most factual similarities with The Director of Public Prosecutions v. McCarthy [2010] IECCA 89 case. The court decided that the warrant stated a jurisdiction which the District judge did not have, and which would not justify the issuance of the warrant for the location in question. Whether warrants should be held to be invalid on such a basis is a matter that could usefully be reviewed by the Supreme Court. The court stated that the significance of a decision on the validity of the warrant for the admissibility of is a closely related issue, which deserves consideration. In conclusion the Court held that the learned judge was correct to hold the warrant invalid and the evidence inadmissible.

O”Donnell J.

Judgment of the Court delivered on the 31st of July 014, by O”Donnell J.

1 This is an appeal by the Director of Public Prosecutions (‘D.P.P.’ or ‘the Director’) against the order of His Honour Judge O”Shea sitting at Dundalk in the Eastern Circuit and made pursuant to s.4(E) of the Criminal Procedure Act 1967 (‘the 1967 Act’) as inserted by s.9 of the Criminal Justice Act 1999, whereby he dismissed the charges against the respondent. The Court also heard a motion brought by the respondent to dismiss the Director”s application on grounds of abuse of process and inordinate and inexcusable delay based on the fact that the order of Judge O”Shea was made on the 17th of May 2012 but the Director”s submissions were not lodged until November 2013.

2 The facts upon which the learned Circuit Court Judge dismissed the charges can be shortly stated. The respondent had been charged with seven counts. Five related to an address at Drogheda, County Louth. They were:

(1) Possession of diamorphine at 308 Rathmullen Park, Drogheda, County Louth;

(2) Possession of diamorphine with intent to supply at the same address;

(3) Possession of diamorphine to a value in excess of €13,000 at the same address;

(4) Possession of cannabis at the same address;

(5) Possession of cannabis with intent to supply at the same address.

The sixth and seventh counts related to possession of diamorphine and possession of diamorphine with intent to supply which was alleged to have occurred at Santry Garda Station. All the offences were alleged to have occurred on the 16th of July 2010. The defendant made certain admissions while under arrest. Nevertheless it is accepted that all the charges against the defendant/respondent were dependent upon the search warrant issued to the investigating guard, Garda Kieran Murrihy of Santry Garda Station on the 6th of July 2010, by Judge Patrick Clyne. This is because the arrest after which the admission was made took place on the premises at 308 Rathmullen Park to which entry was gained on foot of the warrant and similarly the accused had been brought to Santry Garda Station on foot of that arrest. It appears to be accepted that if the warrant was invalid, it followed that the arrest was also invalid and that the defendant was in unlawful custody, and being detained in breach of his constitutional right to liberty when the admission was made and the further search of his person was conducted at Santry. That this was the legal consequence if the warrant was ruled invalid was accepted by the D.P.P. on this appeal, and accordingly the Court expresses no view upon it nor on the question of whether it is appropriate that errors in warrants without more should have such consequences in law. As the law stands this Court is bound by the decision of the Supreme Court in The People (The Director of Public Prosecutions) v. Kenny [1990] 2 I.R.110 (‘ Kenny’). No issue is raised as to the sufficiency of the information on foot of which the warrant was issued, nor is it asserted that the statutory requirements of s.26 of the Misuse of Drugs Act 1977, as amended, were not complied with, nor indeed is it contended that the warrant failed to record such compliance on its face. It is also clear that the District Judge had jurisdiction to issue the warrant for 308 Rathmullen Park.

3 The warrant in this case reads as follows:

‘An Chúirt Dhúiche The District Court Dublin Metropolitan District

Section 26 Misuse of Drugs Act 1970 , 1977/1984 warrant to search.

Whereas I am satisfied by information on oath of Garda Ciaran Murrihy a member of An Garda Síochána of Santry Garda Station that there is reasonable cause for suspecting:

• That a person is in possession, in contravention of the Misuse of Drugs Act, 1977 and 1984, of

• A controlled drug, namely Diamorphine

• And that such drug is on the premises at No. 308 Rathmullen Park, Drogheda, County Louth, in the said District,

• THIS IS TO AUTHORISE You Garda Ciaran Murrihy the said member of An Garda Síochána, accompanied by such other members of An Garda Síochána and such other persons who may be necessary, at any time or times within one month of the date hereof, to enter if need be by force, the said* premises at No. 308 Rathmullen Park, Drogheda, County Louth in the said District to search such premises and any persons found therein, to examine any substance, article or other thing found thereon or therein, to inspect any book, record or other document found thereon and, if there is a reasonable ground for suspecting that an offence is being or has been committed under the Misuse of Drugs Act 1997 and 1984 in relation to a substance, article or other thing found on such premises or that a document so found is a document mentioned in subsection (1)(b) of section 26 of the Misuse of Drugs Act, 1977 or as record or other document which you have reasonable cause to believe to be a document which may be required as evidence in proceedings for an offence under the Misuse of Drugs Act 1977 and 1984 to seize and detain the substance, article, document or other thing as the case may be.

dated the 16th day of July 2010.

Signed: Patrick Clyne

JUDGE OF THE DISTRICT COURT,

To Garda Ciaran Murrihy of Santry Garda station.’

(The portions of the warrant italicised above are the Court”s emphases in order to identify the passages upon which the argument focussed, and appear in ordinary type in the original warrant.)

4 Although no evidence was given of this in the Circuit Court, it appears reasonable to assume that this warrant was produced using a standard template and that the pieces of information underlined in ordinary print in the warrant were the individual pieces of information which were inputted into the standard form. Again, it seems probable that this form was used because the investigating garda was attached to Santry Garda Station and therefore would in the normal course of events be normally concerned with the Dublin Metropolitan District. No evidence was given in the Circuit Court as to the extent of the Dublin Metropolitan District Court but it was accepted that Drogheda is not within that District. The fact is that Judge Clyne is assigned to the District Court which is in...