DPP v Jan Stuurman
| Jurisdiction | Ireland |
| Judge | Mr. Justice Clarke |
| Judgment Date | 06 June 2013 |
| Neutral Citation | [2013] IECCA 19 |
| Court | Court of Criminal Appeal |
| Date | 06 June 2013 |
[2013] IECCA 19
THE COURT OF CRIMINAL APPEAL
Clarke J.
Herbert J.
de Valera J.
and
GEASLEY v DPP 2010 1 ILRM 317 2009/23/5571 2009 IECCA 22
COURTS OF JUSTICE ACT 1924 S32
CRIMINAL PROCEDURE ACT 1993 S3(6)
DPP v BOYLAN 1991 1 IR 477
CUSTOMS & EXCISE (MISCELLANEOUS PROVISIONS) ACT 1988 S2
MISUSE OF DRUGS ACT 1984 S12
DPP v TYNDALL 2005 1 IR 593 2006 1 ILRM 1 2005/22/4618 2005 IESC 28
DPP v HUGHES UNREP CCA 2.7.2012 2012/12/3297 2012 IECCA 69
DAMACHE v DPP & ORS 2012 2 ILRM 153 2012/9/2413 2012 IESC 11
OFFENCES AGAINST THE STATE ACT 1939 S29(1)
CRIMINAL LAW ACT 1976 S5
CRUISE v JUDGE O'DONNELL & DPP 2008 3 IR 230 2008 2 ILRM 187 2007/12/2421 2007 IESC 67
DPP v JAGUTIS UNREP CCA 7.3.2013 2013 IECCA 4
CRIMINAL PROCEDURE ACT 1967 S4E
MISUSE OF DRUGS ACT 1977 S23(1B)
MISUSE OF DRUGS ACT 1977 S23(1E)
MISUSE OF DRUGS ACT 1977 S23(1B)(C)
MISUSE OF DRUGS ACT 1977 S23(1F)
MISUSE OF DRUGS ACT 1977 S23(1B)(A)
CRIMINAL JUSTICE ACT 1984 S4(2)
CUSTOMS & EXCISE (MISCELLANEOUS PROVISIONS) ACT 1988 S2(2)(B)
CUSTOMS & EXCISE (MISCELLANEOUS PROVISIONS) ACT 1988 S2(5)
CUSTOMS & EXCISE (MISCELLANEOUS PROVISIONS) ACT 1988 S2(2)
Criminal law - Unlawful importation of drugs - Guilty plea - Appeal against conviction - Unlawful arrest - Reasonable suspicion - Fundamental error of law or irregularity
Facts: The appellant was charged with unlawful possession of diamorphine valued at €5,678,360. During the first two days of his trial, a number of rulings were made by the judge as to the admissibility of evidence which were adverse to the appellant”s case. As a result, the appellant changed his plea to one of guilty and received a sentence of 10 years imprisonment with the final three years and four months suspended on terms. Despite his change of plea, the appellant sought to appeal against conviction on the basis that two of the trial judges ruling on the admissibility of evidence were incorrectly made, and that a plea of guilty would not have been entered had this not have occurred. The rulings concerned the circumstances the appellant was subjected to prior to questioning by Gardai when alleged admissions as to his involvement in the diamorphine importation were made.
The appellant claimed he had been driving a lorry when Gardai stopped him in order to search the vehicle. In doing so, a requirement was made for the appellant to remain with the vehicle, which if not complied with, can lead to arrest. The appellant claimed that the manner in which the requirement was imposed effectively made it an unlawful arrest; therefore, any admissions made during that period should be disregarded. The case of The People (DPP) v Boylan [1991] 1 I.R. 477 was relied upon as a similar case where such a ruling was made. The appellant was ultimately arrested after a second lorry was stopped shortly afterwards and diamorphine was found. Gardai believed the two lorries had been working in unison. The appellant claimed that there was no evidence of the relevant officer having a suspicion such as would have permitted his lawful arrest. Instead, the trial judge had made adverse rulings on these assertions. These formed the basis of the appeal.
Held by Clarke J (with DeValera J and Herbert J concurring) that before leave could be granted to allow the appeal to advance, the court had to be satisfied that there were substantial grounds of appeal. However, the court also had to consider whether an appeal on conviction was permissible given the fact a plea of guilty had been entered.
It was held that the case of DPP v Geasley [2009] IECCA 22 had decided that there were exceptional circumstances where an appeal on conviction was permissible notwithstanding a guilty plea. These included where a ‘fundamental error or irregularity’ had been made by the trial judge. However, it was said that the onus of proof to show a fundamental error or irregularity had occurred was a heavy one and rested with the appellant. It was further held that a fundamental error would be one which was fundamental to the trial. In the circumstances of the present case, the rulings of the trial judge were said to have the potential to be considered fundamental errors in light of the fact the prosecution candidly admitted they would have had difficulty in sustaining a conviction had the rulings gone against them.
The next step was then to consider whether the two appeal points raised by the appellants could be described as fundamental errors or irregularities. In relation to the point about the officer”s suspicion about the appellant”s lorry working in unison with the lorry in which the drugs were found, it was held that the officer had made it clear to the appellant prior to the second lorry being stopped and searched that he believed he was involved in the illegal importation of drugs. It was evident that the necessary suspicion was held. On the second point, it was held that the present case could be distinguished from the case of Boylan. In Boylan, the defendant had been required to accompany Gardai to a room for questioning, which went above and beyond the requirement to remain with the vehicle. In the present case, the appellant was made to comply with the requirement to remain and no more, therefore unlawful arrest could not be claimed. The subsequent admissions were therefore admissible. Even if this was not the case, it was held that this could only be described as a less serious error at best. The appellant was therefore not entitled to appeal given the guilty plea he had entered and the less serious nature of the errors the trial judge was alleged to have made.
Leave to appeal conviction refused.
1.1 The appellant ("Mr. Stuurman") was charged with possession of 58 half kilo packages of diamorphine valued at €5,678,360. His trial before the Dublin Circuit Court commenced before His Honour Judge Hunt and a jury on the 9 th March, 2011. In the course of the first two days of the trial, a number of rulings were made by Judge Hunt relevant to the admissibility of evidence. Those rulings were adverse to Mr. Stuurman. Thereafter, Mr. Stuurman changed his plea to one of guilty and received a sentence of 10 years imprisonment with the final three years and four months suspended on terms.
1.2 Notwithstanding his plea of guilty, Mr. Stuurman has appealed his conviction to this Court. He has not, however, appealed against the severity of the sentence. The primary basis of Mr. Stuurman's appeal is that it is said that two of the rulings made by His Honour Judge Hunt in the course of trial were incorrect and that it was, in substance, only as a result of those adverse rulings that a plea of guilty was entered. The rulings in question concerned issues relating to the circumstances leading up to the questioning of Mr. Stuurman by gárdaí, in the course of which questioning it is said that he made admissions of involvement in the importation of the drugs concerned. Those rulings had the potential to have an effect on the admissibility of the evidence of the alleged admissions.
1.3 It was accepted on behalf of the prosecutor/respondent ("the D.P.P.") that there can be circumstances in which a person who has pleaded guilty can nonetheless appeal against conviction. However, there was a dispute between counsel as to the precise scope of the entitlement to appeal notwithstanding a plea of guilty and as to the application of whatever might be the proper test in that regard to the facts of this case. The first question with which the court was faced, therefore, was as to whether it is open to Mr. Stuurman, in all the circumstances of this case, to pursue an appeal against conviction notwithstanding his plea of guilty. The two other issues which arise, in the event that it is open to Mr. Stuurman to appeal, are the questions concerning the respective rulings given by His Honour Judge Hunt in the course of the trial. The Court will start by briefly outlining some of the procedural history of this appeal which has a bearing on understanding the way in which this Court has approached the issues which it has to decide.
2.1 The appeal first came before a differently constituted court. On that occasion, the court directed that both parties file additional written submissions addressing the question of the jurisdiction to entertain an appeal notwithstanding a plea of guilty. In the course of the submissions thus filed, both sides made reference to the decision of this Court delivered by Fennelly J. in DPP v Geasley [2009] IECCA 22. At para. 14 of his judgment, and referring to s. 32 of the Courts of Justice Act 1924, as amended by s. 3(6) of the Criminal Procedure Act 1993, Fennelly J. held "that this section is broad enough to encompass a right to appeal, or apply for leave to appeal, notwithstanding a guilty plea, in an appropriate case." It will be necessary to return to Geasley in due course.
2.2 However, on any view, it is clear from Geasley that one of the matters which the court has to take into account in deciding whether it is appropriate to allow an appeal to be advanced in any particular case, notwithstanding a plea of guilty, is the nature of the grounds of appeal advanced. It follows that there is an interaction between the question of whether an appeal can be pursued at all and the grounds of appeal which are sought to be advanced if an appeal is permitted. For that reason, this court decided to hear both sets of issues together so that it could, in assessing whether this was an appropriate case in which an appeal could be pursued...
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DPP v Wiggins
...allow tactical use to be made of the plea of guilty to obtain a new trial in more favourable circumstances.’ 28 This issue also arose in DPP v. Stuurman [2013] IECCA 19. This case involved a defendant who, notwithstanding his plea of guilty, appealed his conviction for possession of 58 half......