DPP v Jagutis

JurisdictionIreland
JudgeMr. Justice Clarke
Judgment Date07 March 2013
Neutral Citation[2013] IECCA 4
CourtCourt of Criminal Appeal
Docket Number[C.C.A. No. 231PX of 2011]
Date07 March 2013
DPP v Jagutis
Between/
The People at the suit of the Director of Public Prosecutions
Prosecutor/Appellant

And

Vitoldas Jagutis
Accused/Respondent

[2013] IECCA 4

Clarke J.

deValera J.

McGovern J.

[Appeal No: 231PX/11]

THE COURT OF CRIMINAL APPEAL

CRIMINAL LAW

Search warrant

Evidence - Admissibility - Illegally obtained evidence - Dismissal of charge - Summary dismissal of charges - Sufficient evidence - Admissible evidence - Preliminary issue - Whether application as to admissibility of evidence may be taken pursuant to s 4E of Criminal Procedure Act 1967 prior to commencement of trial - Whether admissibility of illegally obtained evidence may be subject of application under s 4E of Act of 1967 - Whether admissibility of unconstitutionally obtained evidence may be subject of application under s 4E of Act of 1967 - Cruise v O'Donnell [2007] IESC 67, [2008] 3 IR 230 and The People (Attorney General) v O'Brien [1965] IR 142; (1964) 103 ILTR 109 applied - Lynch v Moran [2006] IESC 31, [2006] 3 IR 389; People (DPP) v McCarthy [2010] IECCA 89; [2011] 1 ILRM 430; The People (Director of Public Prosecutions) v Mallon [2011] IECCA 29, [2011] 2 IR 544 and Shell E & P Ireland Ltd v McGrath [2013] IESC 1, [2013] 1 IR 235 considered - Criminal Justice Act 1967 (No 12), s 4E - Criminal Justice Act 1999 (No 10), s 9 - Appeal against dismissal of charges allowed (231/2011 - CCA - 7/3/2013) [2013] IECCA 4

People (DPP) v Jagutis

Facts: The respondent had been charged with nine counts of forgery and similar offences relating to counterfeit driving licences, tax discs, NCT discs and insurance discs. Much of the evidence was a number of these licences and discs that were found in the course of a search of premises, carried out on foot of a warrant under s.48 of the Criminal Justice (Theft and Fraud) Offences Act 2001. The respondent brought an application before the court under s. 4E of the Criminal Procedure Act 1967 (the '1967 Act"), as inserted by s.9 of the Criminal Justice Act 1999 (the '1999 Act"), for the charges against him to be summarily dismissed. It was his claim that the warrant, which permitted the search of premises, was defective making the subsequent search unlawful and the resulting evidence inadmissible. The motion was approved. The appellant appealed to the Court of Criminal Appeal against the dismissal of the charges.

The appellant contended that determination of the admissibility of the evidence was a matter for the trial judge as it involved consideration of a whole range of factors, which may include the hearing of oral evidence such as whether the warrant was acted upon properly even where the warrant was found to defective. An application under s. 4E the 1967 Act was said to provide an inadequate scope of inquiry to reach a conclusive decision. Secondly, the appellant argued that even if it was found that such an application was adequate to determine the issue of admissibility of evidence, the judge had incorrectly excluded the evidence. It was said that the court was obliged to take the prosecution case at its highest in considering the application, and if this had been properly done, the judge would not have reached the conclusion it had. Finally, the appellant argued that the search warrant was not defective.

Held by Clarke J (with de Valera J and McGovern J concurring) that issues of admissibility of evidence could only be considered on an application for summary dismissal where two conditions are met: firstly, the case against the accused must be dependant on the evidence in question so that if the evidence was excluded there would be an insufficient case remaining; and secondly, the issues arising on admissibility are clear enough so that they could be dealt with using only the Book of Evidence and explanatory oral evidence if required.

In the present case, it was clear that the first leg of this test was satisfied based on the dependence of the case on the evidence uncovered in the search of premises. On the second leg of the test, it was held that even if it was assumed that the search warrant was invalid, the court retained discretion whether to admit the evidence or not as the premises searched were business related. In using this discretion, the court was obliged to give due regard to a range of factors, which may go beyond the materials to be found in the Book of Evidence such as whether the warrant was defective due to an accidental error. As a result, it was held that an application under s. 4E the 1967 Act could potentially be an appropriate vehicle for ruling on the issue of admissibility of evidence, but that this was an unlikely situation due to the probability of the prosecution seeking to admit evidence in support of their position outside of the Book of Evidence. Such a probability applied to the present circumstances.

Appeal of dismissal of charges allowed

CRIMINAL JUSTICE (THEFT & FRAUD) OFFENCES ACT 2001 S48

CRIMINAL PROCEDURE ACT 1967 S4(E)

CRIMINAL JUSTICE ACT 1999 S9

CRUISE v JUDGE O'DONNELL & DPP 2008 3 IR 230 2008 2 ILRM 187 2007/12/2421 2007 IESC 67

CRIMINAL PROCEDURE ACT 1967 S4(E)(4)

CRIMINAL PROCEDURE ACT 1967 S4(E)(7)

LYNCH v MORAN 2006 3 IR 389 2006 2 ILRM 447 2006/34/7332 2006 IESC 31

SHELL E & P IRELAND LTD v MCGRATH & ORS UNREP SCC 13.8.2013 2013 IESC 1

AG, PEOPLE v O'BRIEN 1965 IR 142

DPP, PEOPLE v MCCARTHY 2011 1 ILRM 430 2010/16/3825 2010 IECCA 89

DPP, PEOPLE v MALLON 2011 2 IR 544 2011/18/4330 2011 IECCA 29

1. Introduction
2

1.1 The accused/respondent ("Mr. Jagutis") was charged with nine counts of forgery and similar offences relating to allegedly counterfeit driving licences, tax discs, NCT discs and insurance discs. A key part of the evidence against Mr. Jagutis was what were said to be such counterfeit tax, insurance and NCT discs and foreign driving licences found in the course of a search at a premises at Unit 3, Turnpike Business Centre, Ballymount, Dublin 22 on the 19 th October, 2008. The search in question had been carried out on foot of a warrant under s.48 of the Criminal Justice (Theft and Fraud) Offences Act, 2001 to search the premises in question.

3

1.2 After Mr. Jagutis was returned for trial, an application was brought on his behalf under s.4E of the Criminal Procedure Act, 1967 ("the 1967 Act"), as inserted by s.9 of the Criminal Justice Act, 1999 ("the 1999 Act"), seeking an order dismissing the charges against him. Such an application might be referred to as a summary dismissal motion. As was pointed by the Supreme Court in Cruise v. Judge Frank O'Donnell and D.P.P. [2008] 3 I.R. 230, the main aim of s.4E was, so far as possible, to confer on a trial court a jurisdiction similar to that which had been exercised by the District Court in the context of the former procedure of preliminary examination which procedure was, of course, discontinued by virtue of the 1999 Act.

4

1.3 The basis for Mr. Jagutis's application was that it was said that the warrant on which the relevant premises was searched was defective such that the search in question was thus unlawful. On that basis it was argued that the court should not admit the evidence gathered on foot of the search warrant. In turn it was argued that in the absence of the evidence which it was said should be excluded there was not a sufficient case to put Mr. Jagutis on trial and that, therefore, in accordance with s.4E(4) of the 1967 Act (as amended) the Court should dismiss the charge.

5

1.4 The motion was heard by His Honour Judge Hogan in the Circuit Court. Judge Hogan agreed with the case made on behalf of Mr. Jagutis and, accordingly, dismissed the charges against him. From that decision the prosecutor/appellant ("the D.P.P.") has, in accordance with s.4E(7) of the 1967 Act (as amended), appealed to this Court. Against that background it is necessary to turn to the issues raised on the appeal.

2. The Appeal Issues
2

2.1 Both in the written submissions filed and in the oral argument before this Court counsel for the D.P.P. made three commendably succinct arguments which may be briefly stated.

3

2.2 First, attention was drawn to the precise type of issue which arose in respect of the admissibility of the evidence obtained on foot of the search warrant in question which, it was said, involved questions of fact and questions concerning the discretion of the trial court. Such questions were not, it was said, readily amenable to being dealt with within the scope of an application under s.4E. In summary, it was argued that s.4E involves, to a very large extent, a consideration of whether the Book of Evidence discloses, in respect of any relevant charge, a sufficient case to put the accused on trial for the offence in question. It is said that questions involving the admissibility of evidence obtained on foot of a defective search warrant (except where the search warrant relates to a home) involves the Court in considering a range of factors before determining whether the evidence should be admitted and that, in so doing, the Court may be required to hear evidence relating to such matters as whether the warrant in question, even if found to be defective, was nonetheless applied for and acted upon in a bona fide manner. On that basis it was argued that the scope of the inquiry which ought properly be conducted before determining whether evidence was to be admitted went beyond a consideration of the facts likely to be disclosed on the Book of Evidence and was, thus, outside the scope of the type of inquiry which could properly be conducted within the rubric of s.4E.

4

2.3 Second, counsel for the D.P.P. argued that, even if, contrary to his first submission, the type of issues which could be considered in a summary dismissal application under s.4E included issues of the type raised in these...

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