DPP v Kavanagh

• Jurisdiction: Ireland
• Judge: Denham C.J.
• Judgment Date: 24 May 2012
• Neutral Citation: [2012] IECCA 65
• Court: Court of Criminal Appeal
• Date: 24 May 2012

DPP v Kavanagh & Ors

Between/

The People (Director of Public Prosecutions)

and

Jason Kavanagh

Applicant

and

The People (Director of Public Prosecutions)

and

Mark Farrelly

Applicant

and

The People (Director of Public Prosecutions)

and

Christopher Corcoran

Applicant

[2012] IECCA 65

Denham C.J.

Moriarty J.

Hogan J.

CCA Nos. 301, 308/09, 6/10

THE COURT OF CRIMINAL APPEAL

Criminal law – Constitutional law – Search warrants – Appeal –“Tiger Kidnapping”– Whether search of accused”s dwelling unlawful – Whether evidence obtained during searches inadmissible – Whether convictions should be quashed – Offences against the State Act, 1939.

Facts All three applicants had been convicted of various offences relating to the kidnapping of certain persons and the subsequent robbing of a large sum from Securicor Security Services (€2,280,000). All three sought to appeal on the basis that the searches which had occurred were unlawful and the evidence obtained therein ought to have been excluded. In this regard it was contended that the decision in Damache v DPP and Others [2012] IESC 11 applied. It was submitted that search warrants were issued by a Garda Superintendent pursuant to s. 29 of the Offences against the State Act, 1939 who was not independent of the investigation. The warrants were thus invalid, evidence obtained on foot of the searches could not be admitted and the convictions arising must be quashed. It was also submitted that as the cases were under appeal they had not reached finality, and the applicants were entitled to rely on the third party rights that had been vindicated in Damache.

Held by the Court of Criminal Appeal (Denham J delivering judgment) in allowing the appeals and quashing the convictions: The matter of the constitutionality of the warrants had been raised during the trials. The convictions were now under appeal and there was no bar to the applicants raising the issue of the validity of the warrants. Article 40.5 of the Constitution provided that a private dwelling was ‘inviolable’ and that any exceptions to this rule must therefore be proportionate, objectively justifiable and respect the fundamental constitutional norms. None of the essential safeguards were present with warrants issued under section 29. The applicants were entitled to invoke the principles articulated in Damache and the convictions must be quashed. The court would order a retrial of each of the applicants.

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S15

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S14

DAMACHE v DPP & ORS UNREP SUPREME 23.2.2012 2012 2 IR 266 2012 2 ILRM 153 2012/9/2413 2012 IESC 11

OFFENCES AGAINST THE STATE ACT 1939 S29

CRIMINAL LAW ACT 1976 S5

OFFENCES AGAINST THE STATE ACT 1939 S30

OFFENCES AGAINST THE STATE ACT 1939 S30(4)

OFFENCES AGAINST THE STATE ACT 1939 S30(A)(1)

CONSTITUTION ART 34.3.2

DPP v KENNY 1990 2 IR 110

DPP v LAIDE 2005 1 IR 209

OFFENCES AGAINST THE STATE ACT 1939 S29(1)

DPP v CRONIN (NO.2) 2006 4 IR 329

CORRIGAN v IRISH LAND COMMISSION 1977 IR 317

STATE (BYRNE) v FRAWLEY 1978 IR 326

A v GOVERNOR OF ARBOUR HILL PRISON 2006 4 IR 88

DPP v CUNNINGHAM UNREP CCA 11.5.2012 2012 11 3065 2012 IECCA 64

CONSTITUTION ART 40.5

KING v AG 1981 IR 223

CONSTITUTION ART 40.3.1

1 Judgment of the Court delivered on the 24th day of May, 2012, by Denham C.J.

2 1. Jason Kavanagh, Mark Farrelly and Christopher Corcoran, the applicants before the Court of Criminal Appeal in these appeals, referred to collectively as "the applicants", were accused jointly, with David Byrne and Niall Byrne, of:-

3 Having falsely imprisoned Paul Richardson on the 13 ^th and 14 ^th days of March, 2005 at 28 Ashcroft, Raheny, Dublin 5, in the County of the City of

4 Dublin, contrary to section 15 of the Non Fatal Offences Against the Person Act, 1997.

5 (ii) Having falsely imprisoned Marie Richardson on the 13 ^th and 14 ^th days of March, 2005 at 28 Ashcroft, Raheny, Dublin 5, in the County of the City of Dublin, contrary to section 15 of the Non Fatal Offences Against the Person Act, 1997.

6 (iii) Having falsely imprisoned Ian Richardson on the 13 ^th and 14 ^th days of March, 2005 at 28 Ashcroft, Raheny, Dublin 5 in the County of the City of Dublin, contrary to section 15 of the Non Fatal Offences Against the Person Act, 1997.

7 (iv) Having falsely imprisoned Kevin Richardson on the 13 ^th and 14 ^th days of March, 2005 at 28 Ashcroft, Raheny, Dublin 5, in the County of the City of Dublin, contrary to section 15 of the Non Fatal Offences Against the Person Act, 1997.

8 (v) Having robbed Paul Richardson and Securicor Security Services Ireland Limited of €2,280,000 on the 14 ^th day of March, 2005, in the County of the City of Dublin contrary to section 14 of the Criminal Justice (Theft and Fraud Offences) Act, 2001.

9 2. The applicants were convicted on the 30 ^th July, 2009, sentenced on the 12 ^th November, 2009, and have appealed to the Court of Criminal Appeal.

Preliminary Issue

10 3. There is a preliminary issue before the Court. It is a discrete matter, addressed in advance of full appeals. Two fundamental questions arise at this time:

11 (i) Does the decision in Damache v. DPP and Ors [2012] IESC 11 apply to these cases?

12 (ii) If it does apply, what are the consequences?

Events

13 4. The events giving rise to these proceedings were as follows. On the 13 ^th and 14 ^th March, 2005, a number of men forced entry into the Richardson family home. They falsely imprisoned the Richardson family with the intent of forcing Paul Richardson, under threat of harm to his family, to undertake certain acts in his capacity as an employee of Securicor Security Services Ireland Ltd., so as to facilitate a robbery. Paul Richardson's wife and two sons were taken to Cloon Wood, County Wicklow, where they were kept for a period overnight while Paul Richardson was kept at the family home. On the morning of the 14 ^th March, 2005, Paul Richardson went to work and, under duress and in accordance with instructions, enabled a drop-off of €2.28 million in cash at the car park of the Angler's Rest Pub, County Dublin. Marie, Kevin and Ian Richardson were left tied up in Cloon Wood. However they managed to release themselves, and obtained assistance.

14 5. On the 30 ^th July, 2009, the applicants were convicted on all counts by a jury of eleven (one member having been discharged by reason of a family bereavement). The jury failed to reach a verdict in relation to the other accused; David Byrne and Niall Byrne.

15 6. On the 12 ^th November, 2009, Jason Kavanagh was sentenced to 25 years imprisonment, concurrently on each count, which was backdated to the 1 ^st November, 2008; Mark Farrelly was sentenced to twenty five years imprisonment, concurrently on each count, from the 30 ^th July, 2009, and Christopher Corcoran was sentenced concurrently on each count, to twelve years imprisonment from the 30 ^th July, 2009.

16 7. Each of the applicants has appealed his conviction and sentence. Jason Kavanagh's Notice of Appeal was filed on the 2 ^nd December, 2009; Mark Farrelly's Notice of Appeal was filed on the 11 ^th December, 2009; and Christopher Corcoran's appeal was filed on the 8 ^th January, 2010.

Damache Case

17 8. A preliminary issue has arisen in each of the three appeals, by reference to the decision of the Supreme Court in Damache v. DPP [2012] IESC 11 (unreported, 23 ^rd February, 2010). It was held in Damache, at paragraph 59, that:-

"This Court would grant a declaration that s. 29(1) of the Offences against the State Act, 1939 (as inserted by s. 5 of the Criminal Law Act, 1976) and referred to as s. 29(1) of the Act of 1939, is repugnant to the Constitution as it permitted a search of the appellant's home contrary to the Constitution, on foot of a warrant which was not issued by an independent person."

18 9. The first question before the Court for consideration is whether the decision in Damache applies to the appeals of the applicants. Each of the applicants had appealed to this Court, and grounds of appeal had been filed, but no hearing date had been listed, prior to the decision in Damache v. DPP [2012] IESC 11.

Jason Kavanagh

19 10. It was submitted that Jason Kavanagh seeks to rely upon ground J, in his Notice of Appeal, which was filed before the Damache decision was given. Ground J states:-

"The learned trial judge erred in law and in fact when he found that the search of the appellant's home and his subsequent arrest during that search were lawful".

20 11. This ground refers, inter alia, to the admission of evidence that was obtained after a search of the applicant's home which was made on foot of a search warrant issued by Superintendent Conneely, pursuant to s. 29 of the Offences Against the State Act, 1939, as inserted by s. 5 of the Criminal Law Act, 1976, referred to as "s. 29 of the Act of 1939."

21 12. On Day 14 of the trial (18 ^th May, 2008), the learned trial judge ruled on the issue as to whether the prosecution had fulfilled the legal requirements and had laid a foundation for the subsequent admission of evidence.

22 13. The home of each of the appellants was searched pursuant to a warrant issued by Superintendent Conneely. The evidence in relation to the warrants, which had been issued under s. 29 of the Act of 1939, was given by Superintendent Conneely on Day 14 of the trial (18 ^th May, 2008). It is clear from that evidence that:-

23 (i) Superintendent Conneely was one of the senior garda officers involved in the investigation of the offences in this case;

24 (ii) Superintendent Conneely issued the warrant pursuant to s. 29 of the Act of 1939 to search Jason Kavanagh's home at 27, Parlickstown Court, Mulhuddart, Dublin 15; as he did for the home of the other...