DPP v Joseph Behan

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeBirmingham P.
Judgment Date16 July 2021
Neutral Citation[2021] IECA 200
Docket Number[77/20]
Between
The People at the Suit of the Director of Public Prosecutions
Respondent
and
Joseph Behan
Appellant

[2021] IECA 200

The President

McCarthy J

Kennedy J

[77/20]

THE COURT OF APPEAL

Conviction – Assault causing serious harm – Offences Against the State Act 1939 s. 29 – Appellant seeking to appeal against conviction – Whether the Superintendent was independent of the investigation

Facts: The appellant, Mr Behan, appealed to the Court of Appeal against his conviction on 28th February 2020 in the Dublin Circuit Criminal Court following a trial for offences involving reckless discharge of a firearm, possession of a firearm with intent to commit an indictable offence, robbery, possession of ammunition with intent to commit an indictable offence and assault causing serious harm. On 2nd April 2020, the appellant was sentenced to a term of 15 years imprisonment in respect of the offence of assault causing serious harm and lesser concurrent sentences were imposed in respect of the other offences. The issue at trial and on appeal was whether Detective Superintendent Scott was independent of the investigation; having regard to the terms of s. 29 of the Offences Against the State Act 1939, as amended by the Criminal Justice (Search Warrants) Act 2012, only if he was independent of the investigation could he validly issue a warrant. While the issue of the identity of the senior officer was the primary issue at trial and on appeal, there was also an issue raised in relation to the admission into evidence of CCTV footage from Edenmore Shopping Centre on Dublin’s north side. In that regard, the appellant submitted that the provenance of the relevant CCTV footage had not been proved, in that the person who had granted physical access to Gardaí was not called as a witness.

Held by the Court that whether the Superintendent called on to make a decision was from the same division or from the other side of the city, the CCTV footage to be viewed would remain the same. The Court held that no injustice was done by reason of the fact that it was Detective Superintendent Scott who viewed the footage, rather than any other officer of An Garda Síochána. The Court was of the view that there was no substantial basis available for a challenge to the admission of the CCTV footage. The Court was satisfied that the trial judge was correct to admit the footage.

The Court held that it had not been persuaded to uphold any ground of appeal. The Court held that it would dismiss the appeal against conviction.

Appeal dismissed.

UNAPPROVED
NO REDACTION NEEDED

JUDGMENT of the Court delivered (electronically) on the 16 th day of July 2021 by Birmingham P.

1

. The appellant has appealed against his conviction on 28 th February 2020 in the Dublin Circuit Criminal Court following a trial for offences involving reckless discharge of a firearm, possession of a firearm with intent to commit an indictable offence, robbery, possession of ammunition with intent to commit an indictable offence and assault causing serious harm. On 2 nd April 2020, the appellant was sentenced to a term of 15 years imprisonment in respect of the offence of assault causing serious harm and lesser concurrent sentences were imposed in respect of the other offences.

Background
2

. The background to the trial is to be found in events that occurred in or around midnight on New Year's Eve, going into New Year's Day 2019, at Mizzoni's Pizzeria located at Edenmore Shopping Centre on Dublin's north side. At the time of the incident, the staff in the pizzeria were toasting the New Year with champagne. At approximately 12.20am, a man whose face was covered arrived on a bicycle outside the takeaway. The man produced a gun and entered the premises. He threw a white plastic bag over the counter and demanded money. A staff member who had been standing behind the counter, Mr. Ionut Datcu, responded by throwing a champagne bottle and also a bottle of sauce at the intruder. The intruder began to retreat, and as he did so, turned and fired a number of shots into the takeaway. The intruder then got back on the bicycle and fled the scene.

3

. Two members of staff were hit, Mr. Datcu, and another staff member who had been standing in the kitchen area, Mr. Vasile Bitica. Other members of staff called Gardaí and the ambulance service. Remarkably, one of the ambulance team that responded, Mr. Clinton Jacobs, was an advanced paramedic who had served with the US Army and had a particular expertise and experience in treating gunshot wounds. Of the two staff members, Mr. Jacobs assessed that Mr. Datcu was the more seriously injured. He noted that Mr. Datcu had a “through and through” bullet wound to the chest and was at serious risk of death if there was not an immediate intervention. Mr. Datcu was placed on an IV drip and injected in an effort to stop the bleeding before being taken to the nearby Beaumont Hospital where he was operated on immediately. He eventually made a full recovery.

4

. Gardaí who arrived at the scene quickly gained access to the security room at Edenmore Shopping Centre where they viewed CCTV which had footage of the arrival and departure of the intruder from the pizzeria. One CCTV camera covered the front of 48 Edenmore Park, a domestic dwelling about 200 metres from the shopping centre. This was the home of the appellant and also of his brother, Anthony Behan. Mr. Anthony Behan stood trial alongside his brother, charged with an offence under s. 7 of the Criminal Law Act 1997 for impeding the prosecution of the appellant by hiding the bicycle used in the attempted robbery. He has appealed against both conviction and sentence. While, at one stage, it was envisaged that the appeals of both brothers might be dealt with together, Mr. Anthony Behan sought to adjourn his appeal and the Court acceded to that request. The CCTV footage showed that shortly after midnight, a person had left the house at 48 Edenmore Park and had walked around the corner. A person then returned to the house from that direction on a bicycle and re-entered the dwelling. Shortly after, a person emerged and cycled a bicycle towards Edenmore Shopping Centre and was shown on CCTV entering Mizzoni's Pizzeria.

5

. After the attempted robbery, during the course of which shots had been discharged, the intruder was shown cycling back to 48 Edenmore Park and entering that dwelling. A little later, a person emerged and cycled the bicycle away. At trial, the prosecution case was that this person was Mr. Anthony Behan disposing of the bicycle. The bicycle, which had been taken from a neighbour's garden that night, was later recovered in a nearby park.

6

. Gardaí put the house where the activity had taken place under surveillance. The appellant left the house on two occasions and had interaction with Gardaí on the street. In particular, the appellant was stopped on the street just before 3.00 am by members of the Emergency Response Unit, at which point he was arrested by a local Garda, Garda Fay.

7

. Prior to the arrest of the appellant, Gardaí searched 48 Edenmore Park on foot of an arrest warrant which had been issued pursuant to s. 29 of the Offences Against the State Act 1939 (as amended). In the course of the search, a glove was found on the upstairs landing in the dwelling. That glove was later examined and it was found to have firearms residue on it and was also found to have a major DNA profile, which, on analysis, matched the DNA of the appellant. The lawfulness of the search was an issue both at trial and on this appeal. The warrant had been issued in circumstances of urgency by Detective Superintendent Paul Scott. That circumstances of urgency had prevailed was not the subject of controversy, but what was in issue was whether a warrant could be validly issued by Detective Superintendent Paul Scott in circumstances where he was serving as a Detective Superintendent attached to the Northern Division of the Dublin Metropolitan region. The location of the offence and the search in Edenmore formed part of the Coolock District, one of four districts within the Northern Degion of the Dublin Metropolitan region.

8

. After the pizzeria incident, contact was made with Superintendent Donnelly, the District Officer, based at Coolock Garda Station. As District Officer, Superintendent Donnelly would be in charge of the investigation. He considered the question of searching 48 Edenmore Park, but as the District Officer in charge of the investigation, he was not in a position to issue a warrant.

9

. The statutory...

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1 cases
  • The People (at the suit of the DPP) v Joseph Behan
    • Ireland
    • Supreme Court
    • 30 Mayo 2022
    ...Prosecutions) Prosecutor/Respondent and Joseph Behan Accused/Appellant [2022] IESC 23 Dunne J Charleton J O'Malley J Baker J Woulfe J [2021] IECA 200 Supreme Court appeal number: S:AP:IE:2021:000106 Court of Appeal record number: 2020/77 Circuit Criminal Court record number: Bill No DUDP067......

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