DPP v F.R and A.R

• Jurisdiction: Ireland
• Judge: Mr. Justice John Edwards
• Judgment Date: 23 July 2019
• Neutral Citation: [2019] IECA 212
• Docket Number: [C.A. Nos. 46 & 47 of 2017],Record Numbers: 47/2017 46/2017
• Court: Court of Appeal (Ireland)
• Date: 23 July 2019

[2019] IECA 212

THE COURT OF APPEAL

Edwards J.

Edwards J.

McCarthy J.

Kennedy J.

Record Numbers: 47/2017

46/2017

BETWEEN/

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

APPLICANT

- AND -

F.R.

AND

A.R.

RESPONDENT

Acquittal – Keeping prohibited goods – Exclusion of evidence – Applicant seeking an order quashing an acquittal by direction – Whether the trial judge erred in law in excluding compelling evidence

Facts: The respondents were acquitted by direction of the trial judge on the 1st February, 2017 in circumstances where they each faced trial on a count of keeping prohibited goods contrary to s. 102(3)(c) of the Finance Act 1999. The applicant, the Director of Public Prosecutions, applied to the Court of Appeal seeking an order quashing the acquittal by direction, and determining that the trial judge erred in law in excluding compelling evidence within the meaning of s. 23(14) of the Criminal Procedure Act 2010 and an order directing that the accused be retried for the offence charged.

Held by the Court that the excluded evidence was compelling evidence within the meaning of s. 23(14) of the 2010 Act, in as much as it considered that it was (a) reliable, (b) of significant probative value, and (c) was such that when taken together with all the other evidence adduced in the proceedings concerned, a jury might reasonably be satisfied beyond a reasonable doubt of the person's guilt in respect of the offence concerned.

The Court held that, in the circumstances, it was disposed to allow the appeal. The Court held that it would quash the acquittal by direction and hear submissions concerning whether or not a retrial should be directed.

Appeal allowed.

JUDGMENT of the Court delivered on the 23rd day of July, 2019 by Mr. Justice John Edwards

Introduction

1 In this case both respondents were acquitted by direction of the trial judge on the 1st February, 2017 in circumstances where they each faced trial on a count of keeping prohibited goods contrary to s. 102(3)(c) of the Finance Act 1999.

2 The Director of Public Prosecutions has applied to this court seeking an order quashing the acquittal by direction, and determining that the trial judge erred in law in excluding compelling evidence within the meaning of s. 23(14) of the Criminal Procedure Act 2010 (the Act of 2010) and an order directing that the accused be retried for the offence charged. Accordingly, what is before the court is a ‘with prejudice’ appeal against the respondents” acquittal.

Background to the matter

3 Following the arraignment of the respondents, at which they each pleaded not guilty to the single charge preferred against them, the jury were given an uncontroversial opening address by counsel for the prosecution and they were then sent away on the basis that legal matters required to be canvassed in their absence. Once the jury had gone the trial judge was told that there was to be a challenge to a search warrant which was at the heart of the case and that it was proposed to hear evidence in relation to the obtaining of the warrant and the search on foot of that warrant in a voir dire.

4 The trial judge was told, by way of context, that the respondents in this case lived at Courtbane, Dundalk Upper, County Louth. Their premises comprised a family home in its own grounds and adjacent to which there was a shed, out house and yard. There was a driveway leading up to the house. A family home was to the right of the driveway and the driveway continued past the house into the yard. At the bottom right hand corner of that yard was an L-shaped structure comprising the shed and outhouse previously referred to. The shed was quite close to the kitchen of the dwelling house. There was a sixteen metre gap between the kitchen and the shed.

5 The court of trial heard evidence from Officer Mary Callan who told the Court that in October 2012 she was an officer of the Customs and Excise Service. She was also an authorised officer of the Revenue Commissioners and at the time was attached to the Special Compliance District of the Customs and Excise Service based at Dundalk. She told the court that while working in that role she received information from senior management in the Customs and Excise Service to the effect that there was an oil laundering operation on the aforementioned premises of the respondents.

6 Consequent on receiving that intelligence, covert surveillance was conducted on the premises in question. Officer Callan told the court that she personally conducted this surveillance accompanied by her colleague, Officer Deirdre Martin. The surveillance was conducted on the 11th September, 2012 and again on the 16th October, 2012. While initially unwilling to disclose the precise position where the surveillance had been conducted from, for understandable operational reasons, she confirmed to the court that they were near the premises and in a position to observe the shed adjacent to the dwelling house. It was later confirmed that they had in fact been in the vicinity of the hedge at the back of the shed. She stated there was a strong smell of diesel at the back of the premises. Pressed as to where exactly this smell of diesel was coming from, she stated that it was coming from where the hedge was at the back of the shed. She further stated that she had observed in the course of her surveillance that there was a timber opening in the back of the shed. It was like a door but it was a makeshift opening. There did not appear to be a proper door.

7 On the 16th October, 2012, which was the second occasion on which they conducted covert surveillance, there was a much stronger smell of diesel. Again, this appeared to be coming from where the makeshift door was.

8 In consequence of what the covert surveillance had revealed, Officer Callan applied for and obtained a search warrant. The application was made to the District Court in Drogheda on the morning of the 23rd October, 2012. Officer Callan told the court that prior to making the application she established who owned the premises. She looked it up in the Land Registry and got the Folio Number and established the names of the owners who were the first and second named respondents in this appeal. One of those owners, namely the second named respondent, was, in fact, a Revenue Official.

9 The evidence was that for the purpose of obtaining the required search warrant Officer Callan attended in person at Drogheda District Court on the date in question. The District judge who was sitting was Judge Flannan Brennan. Officer Callan provided an information in writing, which she had verified on oath, otherwise known as a ‘sworn information’, to Judge Brennan and she stated that Judge Brennan asked her some questions in relation to it. A copy of her sworn information was produced before the court of trial and exhibited. When pressed as to what exactly happened in the District Court she told the court of trial that she handed Judge Brennan the documentation she had prepared and he read it. He then asked her questions with regard to the information that she had provided. When asked what documentation she had handed to him she said that she handed to him the search warrant and her information.

10 Officer Callan was asked in the court below about the contents of her sworn information and it was read into the record. The information read:

An Chúirt Dúiche The District Court

INFORMATION

Under Section 136(5) of the Finance Act, 2001

District Court Area of Dundalk District No 6

The information of Mary Callan attached to Revenue Anti Evasion Team, Revenue Hose, Coes Road, Dundalk, Co Louth, who says on oath:-

I am an Officer of the Revenue Commissioners and I have reasonable grounds to suspect that

(a) certain goods to wit, excisable products, mineral oil on which the appropriate rate of duty has not been paid, prohibited goods as defined in s. 94 of the Finance Act 1999, and vehicles and equipment relating to same, the same being goods which are liable to forfeiture under the law relating to excise,

and

(b) certain records relating to transactions in contravention of the laws relating to excise,

are kept or concealed on or at the premises or place of [F.R.] and [A.R], Courtbane, Dundalk Upper, Co Louth in the said District.

The grounds for so suspecting are as follows: Information received from a reliable source and surveillance effected by me on the said premises.

I hereby apply for a warrant to search the said premises pursuant to Section 136(5) Finance Act, 2001.

Signed:…. Mary Callan….. (Informant)

Sworn before me at Drogheda District Court this 23rd day of October 2012 and I am satisfied the grounds set out above are reasonable.

Signed: …. Flannan Brennan ….

Judge of the District Court assigned to the said District.’

11 The witness gave evidence that Judge Brennan questioned her, while she was under oath, as to whether she believed that the information that she was providing was correct and she replied, ‘yes’. She stated that he further asked her if the signature on the document was her own and she had said ‘yes’. Officer Callan confirmed in evidence to the court below that she had signed the information as informant and she identified her signature in court on the document. She stated that she had appended her signature in front of Judge Flannan Brennan. This was again while she was in the witness box and under oath. After she had done so, he then signed the warrant and gave it to her. A copy of the search warrant as signed by the District Judge was also exhibited before the Circuit Court. As no issue is taken with the form of the warrant there is no need to set out its terms.

12 Officer Callan further testified in the course of the voir dire that on the 24th October, 2012 authorised officers of Customs and Excise, including herself, and two members of the Garda Regional Response Unit, went...