DPP v O'Donnell
| Jurisdiction | Ireland |
| Judge | O'Hanlon J., |
| Judgment Date | 28 February 1995 |
| Neutral Citation | 1995 WJSC-CCA 2189 |
| Docket Number | 70/93 |
| Court | Court of Criminal Appeal |
| Date | 28 February 1995 |
1995 WJSC-CCA 2189
THE COURT OF CRIMINAL APPEAL
O'FLAHERTY J.
O'HANLON J.
GEOGHEGAN J.
Citations:
EXPLOSIVE SUBSTANCES ACT 1883 S4
OFFENCES AGAINST THE STATE ACT 1939 S30
CHRISTIE V LEACHINSKY 1947 AC 573
AG, PEOPLE V WHITE 1947 IR 247
DPP V QUILLIGAN 1986 IR 495
TRIMBOLE V GOVERNOR OF MOUNTJOY PRISON 1985 IR 550
DPP V ROONEY 1991 2 IR 7
MORRIS V BEARDMORE 1981 AC 446
DPP V CLOSKEY UNREP O'HANLON 6.2.84 1984/4/1155
DPP V GAFFNEY 1987 IR 173
DPP V HEALY 1990 2 IR 73
DPP V SHAW 1982 IR 1
WALSH V O BUACHALLA 1991 1 IR 56
Synopsis:
CRIMINAL LAW
Suspect
Search - Garda - Authorisation - Evidence - Procurement - Means - Legality - Admissibility of evidence of possession of explosives - Whether suspect informed of reason before continuation of search of suspect's jacket - Suspect's initial acquiescence in search - Offences Against the State Act, 1939, s. 30 - (70/93 - Court of Criminal Appeal - 28/2/95) - [1995] 3 I.R. 551
|The People v. O'Donnell|
EVIDENCE
Admissibility
Procurement - Means - Legality - Garda - Powers - Exercise - Suspect acquiesced in search initially - Suspect objected to continued search of jacket pocket - Suspect arrested and informed of reason for search - Continued search thereafter lawful - (70/93 - Court of Criminal Appeal - 28/2/95) - [1995] 3 I.R. 551
|The People v. O'Donnell|
GARDA SIOCHANA
Powers
Search - Suspect - Rights - Information - Reason for search - Whether suspect informed of reason before continuation of search of suspect's jacket - Suspect's initial acquiescence in search - (70/93 - Court of Criminal Appeal - 28/2/95) - [1995] 3 I.R. 551
|The People v. O'Donnell|
Judgment of the Court delivered by O'Hanlon J., the 28th day of February, 1995.
The applicant for leave to appeal (Christopher O'Donnell) seeks leave to appeal against his conviction by the Special Criminal Court on the 2nd July, 1993, of the offence of possession of explosives contrary to Section 4 of the Explosive Substances Act, 1883.
The particulars of the offence, as given in the Indictment, are as follows:-
Christopher O'Donnell, on the 6th day of July, 1992, in Dundalk in the County of Louth knowingly had in his possession explosive substances, to wit, 5 detonators, in such circumstances as to give rise to a reasonable suspicion that it was not in his possession for a lawful object.
The sentence imposed by the Special Criminal Court was one of seven years, and there is no appeal against sentence. The Court refused an application for leave to appeal and five grounds were originally put forward in support of the present application for leave to appeal. When the matter came on for hearing, however, Mr. Barry White, Senior Counsel for the applicant, indicated that he only intended to pursue the second of those Grounds of Appeal, which reads as follows:-
2. The Court of Trial erred in law in holding that the search of the accused was lawful and constitutional.
The relevant evidence in relation to the search in question was given by Gardai Kealy and Gordon, whose evidence was accepted by the Special Criminal Court in preference to that of the applicant, Christopher O'Donnell. His evidence was described in the judgment of the Court as "unreliable and substantially untrue". Accordingly, for the purpose of considering the present application for leave to appeal, based as it is on the second ground of appeal referred to above, it is only necessary to summarise the evidence of the two Gardai in relation to this issue.
Garda Kealy said in evidence that he was driving a mobile patrol van in Dundalk on the 6th July, 1992, accompanied by Garda Gordon after 11 p.m., when they saw a blue Ford Fiesta being driven by a man whose identity was known to them as Austin Hearty, and who was known to Garda Kealy for some time and suspected by him to be a member of an unlawful organisation, namely, the IRA.
They followed the van and shortly afterwards, after the Garda car had made a detour, they saw the other car coming towards them down a road in a nearby housing estate. They stopped, and caused the oncoming car to stop, albeit not without certain difficulty. Garda Gordon got out and spoke to the driver of the car, and Garda Kealy then got out, holding his torch, and spoke to the applicant, Christopher O'Donnell, who was seated in the front passenger's seat in the car. He recognised the applicant, and knew him previously, and suspected him of being a member of an unlawful organisation, namely, the IRA. Their conversation at all stages, even on the account given by the applicant, appears to have been a friendly one.
On being asked where he was going the applicant made some non-committal reply. He was then asked to step out of the car and did so in response to Garda Kealy's request. The Guard then told him he was going to search him under Section 30 of the Offences Against the State Act, 1939.The applicant, who was wearing a black leather jacket, made no response. The Garda then put away his torch and patted the applicant's two pockets and detected the presence of "something solid, a lumpy object, in each pocket, left and right". He then put his hand in the pocket on the right-hand side and found a small walkie-type radio and took possession of it.
He was then about to put his hand into the other (left-hand) pocket, but at this stage the applicant put his hand down and pushed the Garda's hand away - "not a violent motion". The Garda again attempted to put his hand in that pocket, as did also Garda Gordon who had joined them, but the applicant turned away from them, making it impossible for them to get at the left-hand pocket. "He (Garda Gordon) got the same response, the resistance, passive resistance of Christy O'Donnell by turning his body away and pushing the hand away".
At this stage Garda Kealy said that "I formed an opinion in my mind…at that stage, my lord, the opinion being that he was going to commit an offence under the Offences Against the State Act, 1939, and I would arrest him, and as I do in these cases, my lord, when I arrest somebody I caution him that he wasn't obliged to say anything unless he wished to do so" (Book A. Qn.52). He continued, at Questions 58 – 61:"I informed...
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