DPP v Jason O'Brien
| Jurisdiction | Ireland |
| Judge | Mr. Justice Mahon |
| Judgment Date | 11 June 2018 |
| Neutral Citation | [2018] IECA 166 |
| Docket Number | Record No. 43/2014 |
| Court | Court of Appeal (Ireland) |
| Date | 11 June 2018 |
[2018] IECA 166
THE COURT OF APPEAL
Mahon J.
Birmingham J.
Mahon J.
Hedigan J.
Record No. 43/2014
Conviction – Drug offences – Constitutional rights – Appellant seeking to appeal against conviction – Whether the trial judge permitted the prosecution to rely on evidence obtained in consequence of a deliberate and conscious violation of the appellant’s constitutional rights
Facts: The appellant, Mr O’Brien, was tried by jury and convicted at Dublin Circuit Criminal Court of possession of Diamorphine on the 19th May 2010 contrary to s. 3 of the Misuse of Drugs Act 1977. He was also tried on a second count, that of possession of Diamorphine for the purposes of sale or supply contrary to s. 15 of the Misuse of Drugs Act 1977 on the same date but the jury disagreed in respect of that count. A nolle prosequi was subsequently entered to that count on behalf of the respondent, the DPP. The appellant received an entirely suspended twelve month sentence in respect of the count of which he was found guilty. He appealed to the Court of Appeal against his conviction on the grounds that the trial judge: (i) erred in his legal determinations and rulings and in particular he misconstrued, misinterpreted and failed to properly apply precedent in relation to s. 23 of the Misuse of Drugs Acts 1977 to 1984; (ii) failed to vindicate the appellant’s constitutional rights and erred in that he admitted evidence that he should not have so admitted; (iii) erred in making a distinction between the concept of “detention” and “arrest”; and (iv) permitted the prosecution to rely on evidence obtained in consequence of a deliberate and conscious violation of the appellant’s constitutional rights.
Held by the Court that none of the grounds of appeal argued could succeed.
The Court held that it would dismiss the appeal.
Appeal dismissed.
The appellant was tried by jury and convicted at Dublin Circuit Criminal Court of possession of Diamorphine on the 19th May 2010 contrary to s. 3 of the Misuse of Drugs Act 1977, as amended. He was also tried on a second count, that of possession of Diamorphine for the purposes of sale or supply contrary to s. 15 of the Misuse of Drugs Act 1977, as amended, on the same date, but the jury disagreed in respect of this count. A nolle prosequi was subsequently entered to this count on behalf of the respondent. The appellant received an entirely suspended twelve month sentence in respect of the count of which he was found guilty. He has appealed his conviction.
On the 19th May 2010 the appellant and another man, later his co-accused, were observed by two gardaí counting money in a Citroen car in the Whitethorn area of Clondalkin in County Dublin. One of the gardaí, Garda Matheson, formed a reasonable suspicion that these males were involved in a drugs transaction. He indicated his intention to search the appellant pursuant to s. 23 of the Misuse of Drugs Act 1977, as amended, and the appellant consented. Nothing of evidential value was found on his person. The second man, Mr. Heffernan, was also searched and €3,200 in cash was found on his person. His explanation for carrying such a large sum of cash was that it was for rent. The motor car was also searched, but nothing of interest was found in it. Later on the same date, the same two gardaí noticed the same Citroen motor car on the Nangor Road heading towards Clondalkin village. The car was stopped, and the appellant consented to himself and his motor vehicle being searched. Nothing was found in the motor vehicle, but €1,200 in cash was found on Mr. Heffernan's person, some €2,000 less than the amount found in the course of the previous search. The appellant and his car were conveyed to Clondalkin garda station, and in the course of a more detailed search of the motor car a package was found at the back of the radio. It contained brown powder which was suspected to be Diamorphine, of approximately 56 grammes in weight. The appellant was then released from his detention pursuant to s. 23 of the Misuse of Drugs Act 1977 (as amended) and immediately arrested pursuant to s. 25 of the 1977 Act for an offence contrary to s. 15 of that Act. In the course of being interviewed by the gardaí the appellant admitted to being the owner of the heroin found in the vehicle, and he said he had paid €1,600 for the drugs.
The appellant's grounds of appeal against conviction are that the learned trial judge:-
• erred in his legal determinations and rulings and in particular he misconstrued and misinterpreted and failed to properly apply precedent in relation to s. 23 of the Misuse of Drugs Act 1977 to 1984, and
• failed to vindicate the appellant's constitutional rights and erred in that he admitted evidence that he should not have so admitted, and
• erred in making a distinction between the concept of ‘detention’ and ‘arrest’, and
• permitted the prosecution to rely on evidence obtained in consequence of a deliberate and conscious violation of the appellant's constitutional rights.
In his written submissions to this court the appellant submits the following:-
‘There is a net issue at play in this case; the admissibility of evidence. The judge upheld the DPP's submission and so ruled that a ‘detention’ for a drugs search is something other than an ‘arrest’, even in the circumstances here where the appellant had been handcuffed, was so transported in a garda car to a garda station, was recorded as a prisoner in a garda ‘custody record’ and was confined to a garda cell for forty minutes whilst his car was searched. The appellant submitted to the learned trial judge and herein maintains that no valid legal distinction can be drawn between a ‘detention’ and an ‘arrest’.
Section 23 of the Misuse of Drugs Act 1977 , as amended, empowers gardaí to search and detain where certain statutory prerequisites have been met. The relevant sections of the legislation are:-
‘23(1) A member of the Garda Síochána who with reasonable cause suspects that a person is in possession in contravention of this Act of a controlled drug, may without warrant:-
(a) search the person and, if he considers it necessary for that purpose, detain the person for such time as is reasonably necessary for making the search,
(b) search any vehicle, vessel or aircraft in which he suspects that such drug may be found and for the purpose of carrying out the search may, if he thinks fit, require the person who for the time being is in control of such vehicle, vessel or aircraft to bring it to a stop and when stopped to refrain from moving it, or in case such vehicle, vessel or aircraft is already stationary, to refrain from moving it, or
(c) seize and detain anything found in the course of a search under this section which with such cause appears to him to be something which might be required as evidence in proceedings for an offence under this Act.
(1A) Where a member of the Garda Síochána decides to search a person under this section, it may require the person to accompany him to a garda station for the purpose of being so searched at that station.
(1B) Where a member of An Garda Síochána decides to search a vehicle, vessel or aircraft under this section he may as regards the person who appears to him to be the owner or in control or charge for the time being of the vehicle, vessel or aircraft make any one or more or all of the following requirements:-
(a) require such person, pending the commencement of the search, not to remove from the vehicle, vessel or aircraft, as may be appropriate, any substance, article or other thing,
(b) in case the decision relates to a vehicle and the place at which he finds the vehicle is in his reasonable opinion unsuitable for such search, require such person forthwith to take the vehicle or cause it to be taken to a place, where he considers suitable for such search and which is specified by him,
(c) require the person to be in or on or to accompany the vehicle, vessel or aircraft, as may be appropriate, for so long as the requirement under this paragraph remains in force.
(1C) Where there is a failure to comply with a requirement made under this section the following provisions shall apply:-
(a) in case the requirement was made under subsection (1A) of this section, the member of the Garda Síochána concerned may arrest without warrant the person of whom the requirement was made, and
(b) in case the requirement is a requirement mentioned in paragraph (b) of subsection (1B) of...
To continue reading
Request your trial