DPP v Joyce
| Jurisdiction | Ireland |
| Judge | Macken, J |
| Judgment Date | 21 April 2008 |
| Neutral Citation | [2008] IECCA 53 |
| Court | Court of Criminal Appeal |
| Docket Number | 105/07,[C.C.A. No. 105 of 2007] |
| Date | 21 April 2008 |
[2008] IECCA 53
COURT OF CRIMINAL APPEAL
Macken, J.
Murphy, J.
de Valera, J.
Between:
FINANCE ACT 1999 S102(3)(c)
FINANCE ACT 1999 S102(4)
CREAVEN & ORS v CRIMINAL ASSETS BUREAU (CAB) & ORS 2004 4 IR 434 2004/11/2354
DPP v CRONIN 2006 4 IR 329
FINANCE ACT 1999 S94
FINANCE ACT 2001 S136
FINANCE ACT 2001 S136(5)
FINANCE ACT 2001 S136(1)
CRIMINAL ASSETS BUREAU ACT 1996 S14
COURTS OF JUSTICE ACT 1924 S77
COURTS OF JUSTICE ACT 1924 S78
COURTS OF JUSTICE ACT 1924 S79
CRIMINAL JUSTICE ACT 2006 S180
PETTY SESSIONS (IRELAND) ACT 1851 S7
FINANCE ACT 2001 S141
AG v O'BRIEN 1965 IR 142
DPP v KENNY 1990 2 IR 110
COURTS OF JUSTICE ACT 1924 S29
DPP v BALFE 1998 4 IR 50
CRIMINAL LAW
Warrant
Search - Evidence - Admissibility - Exclusionary rule - Warrant issued by District Judge sitting outside his assigned district - Whether search warrant valid - Whether breach of constitutional rights - Whether evidence should be excluded - Whether alternative means of obtaining evidence - People (DPP) v Kenny [1990] 2 IR 110, People (DPP) v Balfe [1998] 4 IR 50 and Creaven v Criminal Assets Bureau [2004] IESC 92, [2004] 4 IR 434 applied; People (AG) v O'Brien [1965] IR 142 distinguished - Petty Sessions (Ireland) Act 1851 (14 & 15 Vict, c 93), s 7 - Courts of Justice Act 1924 (No 10), ss 77, 78 and 79 - Criminal Assets Bureau Act 1996 (No 31), s 14 - Finance Act 1999 (No 2), ss 94 and 102(3)(c) and (4) - Finance Act 2001 (No 7), ss 136(1) and (5) and 141(1) - Appeal allowed, no order as to retrial (105/2007 - CCA - 21/4/2008) [2008] IEHC 53
People (DPP) v Joyce
Judgment of the Court delivered by Macken, Jon the 21st day of April 2008
The applicant was convicted of the offence of keeping prohibited goods contrary to Sections 102(3)(c) and (4) of the Finance Act 1999 as amended by the Finance Act 2001, on the 14 th August 2003. He was sentenced, on the 11 th day of May 2007, to two years imprisonment.
He appeals to this Court against his conviction on several grounds, falling naturally into four groups, now reduced to two, which can be briefly described as follows:
1 The search warrant is invalid. The judge of the District Court who issued the warrant was not sitting, at the time of such issue, in the District to which he had been assigned, within the meaning of the judgment in Creaven v Criminal Assets Bureau [2004] 4 IR 434.
The respondent denies that the warrant is invalid, and argues that it is fully in line with a correct interpretation of the decision in Creaven, supra,. The respondent submits that even if this Court finds that it is invalid, this does not have as its consequence that the material seized pursuant to it is inadmissible, on the basis of the case law in that regard.
2 The learned trial judge erred in law in permitting the prosecution to reopen its case after completion of the evidence, in order to prove, formally, the statutory instruments which prescribed markers, and further, although the prosecution was permitted to reopen its case, the learned trial judge wrongly failed to acquit the applicant, notwithstanding the prosecution's failure to prove the Commencement Order for the relevant section(s) of the Finance Act 1999, as amended.
As to this ground, the respondent submits that the learned trial judge permitted formal proof of the relevant Statutory Instrument concerning "prescribed markers", and this was permissible in law. The judge's ruling did not concern the Commencement Order, and the Court transcript itself make this clear. The applicant made no submission in relation to the absence of proof of the Commencement Order, and cannot now seek to do so in the course of this appeal, having regard to the decision in DPP v Cronin [2006] 4 IR. In the alternative, it is not incumbent on the prosecution in every case formally to prove a Commencement Order in relation to a statute under which an accused is indicted, but only in the case where the subordinate legislation creates the offence. Commencement Orders do not, in the relevant circumstances of this case, create an offence nor its ingredients, but merely provide the time frame for the implementation of legislation. That being so, it was not necessary to prove the Commencement Order at all, and the judge was, in any event, entitled to take judicial notice of the existence of the statute, since it had been in force for a periodof 22 months prior to date of the hearing.
By far the more important of the two extant grounds raised on behalf of the applicant is the contention that the search warrant was invalid for lack of jurisdiction. The significance of the warrant and its validity arise by virtue of the following. This trial concerned charges made against the applicant in the following terms:
"Keeping prohibited goods contrary to s.102(3)(c) of the Finance Act 1999 and to s.102(4) of the Finance Act 1999 as amended by the Finance Act 2001."
The particulars of the charge are that the applicant, as accused, on or about the 14 th day of August 2003 at Primatestown, Ashbourne, County Meath kept prohibited goods as defined by s.94 of the Finance Act 1999, namely, one steel tank, a pallet of "sophisticat" cat litter, a Puisi electric pump, hoses, a compressor, a Yanmar mini digger and ancillary equipment.
It was the case for the prosecution that all of these goods were prohibited goods, and, in a nutshell, were intended to or were being used for the unlawful removal, from certain mineral oil, of prescribed markers. The significance of this is that the marker is legitimately placed in those oil products for the purposes of allowing a beneficially low price to be charged to customers operating certain types of machinery. When the marker is removed, the product can then be sold on the market at a substantially higher or even, "normal" price, without the payment of the appropriate duties and with a larger profit. Information relating to the existence of the prohibited goods at certain premises associated with the applicant was obtained by persons acting on behalf of the Commissioner for the Revenue, who investigated the lands or premises where these products or equipment was to be found, this having been done by climbing a fence and viewing the location in question, and some at least of the goods.
The applicant contends that the issue of the validity of the warrant arises because the prohibited goods in question were seized on foot of a search warrant issued by District Judge Brophy in the circumstances above described. Counsel for the applicant argues that, absent a valid warrant, the prohibited goods could not be seized in any circumstances by the person executing the warrant, based, it is argued, on s.136 of the Finance Act 2001. That Section reads as follows:
2 "(1) An officer may, at all reasonable times, on production of the authorisation of such officer if so requested by any person affected, enter a premises or other place (other than a dwelling) in which-
(a) the production, processing, holding, storage, keeping, importation, purchase, packaging, offering for sale, sale or disposal of any product referred to in section 97(1) is being or is reasonably believed by the officer to be carried on,
(b) the manufacture, distribution, storage, repair, modification, importation, dealing, delivery or disposal of mechanically propelled vehicles is being, or is reasonably believed by the officer to be carried on, or
(c) any records relating to, or reasonably believed by the officer to relate to, the products or activities referred to in paragraphs (a) and (b) are being kept or are reasonably believed by the officer to be kept.
...
(5) without prejudice to any power conferred by subsections (1) to (4), a judge of the District Court may, if satisfied on the sworn information of an officer that there are reasonable grounds for suspecting that -
(a) anything liable to forfeiture under the law relating to excise,
or
(a) any records relating to transactions in contravention of the laws relating to excise, are kept or concealed on or at any premises or place, issue a search warrant." (emphasis added)
The warrant in the present case issued pursuant to s.136(5), the argument of the applicant being that there is no power to seize under s.136(1), a matter dealt with later in this judgment.
The facts giving rise to the invalidity claim are not really in issue. In consequence of the above matters, an application was made to a District Judge for a search warrant to permit certain investigators or others being "authorised persons", to go on the lands in question and, in execution of the warrant, to remove certain items from the land or otherwise take possession of them. The warrant, dated the 14 th August 2000, issued on a document entitled "The District Court for Dunshaughlin", under the signature of Judge John Brophy, described as "Judge of the said District Court assigned to the said District". District Judge John Brophy was, at the relevant date, it is agreed, permanently assigned to District Court Area No. 10. Dunshaughlin is in that District Court Area. The lands in question in respect of which the warrant issued, at Primatestown, Dunshaughlin, County Meath, are also in the same District Court Area No. 10. The District Judge had been sought out by the officer in question in the knowledge that he, the judge, was the appropriate judge permanently assigned to the District Court Area in question. On the 14 th August 2003, however, the District Court was not in session in Dunshaughlin, due to the long vacation. The application was therefore made to the District Judge at...
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