DPP v Kenneth Gaffney

• Jurisdiction: Ireland
• Judge: WALSH J.,Henchy J.,McCARTHY J.
• Judgment Date: 01 January 1988
• Neutral Citation: 1987 WJSC-SC 442
• Court: Supreme Court
• Docket Number: (140/86),[S.C. 1986 No. 140]
• Date: 01 January 1988

1987 WJSC-SC 442

THE SUPREME COURT

Finlay C.J.

Walsh J.

Henchy J.

Hederman J.

McCarthy J.

(140/86)

DPP v. GAFFNEY

IN THE MATTER OF THE COURTS (SUPPLEMENTAL PROVISIONS)ACT, 1961

AND

IN THE MATTER OF A PROSECUTION ENTITLED THE DIRECTOR OFPUBLIC PROSECUTIONS

Respondent

AND

KENNETH GAFFNEY

Appellant

Citations:

SUMMARY JURISDICTION ACT 1857 S2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52

ROAD TRAFFIC ACT 1961 S49

ROAD TRAFFIC ACT 1961 S53

ROAD TRAFFIC ACT 1961 S54

ROAD TRAFFIC ACT 1961 S106

ROAD TRAFFIC ACT 1961 S109

ROBSON V HALLET 1967 2 QB 939

DPP V CLOSKEY UNREP O'HANLON 06.02.84 1984/4/1155

MORRIS V BEARDMORE 1980 2 AER 753 1979 3 QBD 290, 1981 AC 446, 1980 3 WLR 283

CONSTITUTION ART 40.5

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S49(4)

AG, PEOPLE V O'BRIEN 1965 IR 142

DPP V MCMAHON 1987 ILRM 87, 1986 IR 393

ROAD TRAFFIC ACT 1961 S107

Synopsis:

CONSTITUTION

Personal rights

Dwelling - Entry - Legality - Access to dwelling sought by gardai - Permission to enter twice refused - Enquiry by garda at open door of dwelling whether anyone was there - Defendant answered "Yes, in here" - Entry of garda and arrest of defendant in dwelling - Held that garda had neither express nor implied permission to enter dwelling - Held that entry was made in breach of Article 40, s.5, and that arrest was unlawful - ~See~ Criminal Law, arrest - Article 40 - (140/86 - Supreme Court - 23/2/87) - [1987] IR 177 [1988] ILRM 39

|Director of Public Prosecutions v. Gaffney|

CRIMINAL LAW

Arrest

Location - Legality - Private property - Defendant's dwelling - Access to dwelling sought by gardai - Defendant drove car at high speed to his dwelling, pursued by gardai, after road-traffic incident - Defendant's brother twice refused gardai permission to enter the dwelling but, soon afterwards, garda enquired at open door of dwelling whether there was anyone there, to which defendant replied "Yes, in here" - Thereupon, garda entered dwelling and arrested defendant there - Held that the dwelling of the defendant, as a citizen, was declared by Article 40, s.5, of the Constitution to be inviolable, and that the arresting garda had neither express nor implied permission to enter the defendant's dwelling - Held, accordingly, that the entry of the arresting garda had been made in breach of Article 40, s.5, and that the arrest of the defendant was unlawful - Decision of High Court (16/4/86) reversed - Road Traffic Act, 1961, ss.49, 107 - Constitution of Ireland, 1937, Article 40 - (140/86 - Supreme Court - 23/2/87) - [1987] IR 177 [1988] ILRM 39

|Director of Public Prosecutions v. Gaffney|

1 JUDGMENT OF WALSH J.delivered on the 23rd day of February 1987 [FINLAY, HEDERMAN CONC]

2 This is an appeal taken against the decision of Mr. Justice McKenzie in the High Court upon a consultative case stated by District Justice O'Sullivan. While the case purported to have been stated pursuant to s. 2 of the Summary Jurisdiction Act, 1857, as carried forward and extended by s. 51 of the Courts (Supplemental Provisions) Act, 1961, which in fact deals with appeals by way of case stated, it was obvious that what was intended was a consultative case stated pursuant to s. 52 of the 1961 Act. The casestated is itself described as a "consultative case stated." The leave of the High Court to carry the appeal to this Court was granted by the High Court Judge, as it is required by s. 52, subs. 2 of the Act of 1961.

3 The questions of law involved arose during the hearing of a prosecution brought against the appellant by the respondent pursuant to ss. 49, 53, 54, 106 and 109 of the Road Traffic Act, 1961as amended. The case was heard in the Dublin Metropolitan District Court on the 27th March 1984 and the case stated was dated the 28th November1985.

4 The case stated summarised the evidence given for the prosecution in the following words:-

"A Garda Check Point was operated on Rathgar Road, Dublin during the early hours of the 28th February, 1984. At approximately 3.30 a.m. on that morning a Garda on patrol at the Check Point signalled the driver of an approaching car to stop. The driver, who was subsequently identified as the Defendant failed to stop as requested and drove his car at such a speed and in such a manner that the Garda had to jump out of the way to avoid being struck. The Defendant's car wasimmediately pursued by a Garda Gerard Walsh on an official Garda Motor Cycle. The pursuit continued for approximately 45 minutes and three other Garda vehicles were also involved. During the course of the hearing Garda Walsh gave evidence that the Defendant's car which was driven at high speed throughout would often swerve from side to side on the road. Garda Walsh also said in evidence that as the Defendant entered into Bushy Park Road, Rathgar, Dublin he observed that car strike a parked car and continue without stopping at the scene of the accident. Another Garda witness who was the driver of a Patrol Car described how during the course of the pursuit the Defendant suddenly stopped his vehicle, and then reversed and rammed the pursuing Patrol Car. The Patrol Car was immobilised while the Defendant moved off again at high speed. Other Gardai said in evidence that they had been forced to run for safety as the Defendant's vehicle had seemed to go out ofcontrol.

The Defendant was eventually pursued to a house located at 2 Hazelbrook Drive at Terenure, Dublin 6. As the Defendant was about to enter the house a Garda called on him to stop but he was met with a refusal. Some of the Gardai then went to the back of the house to head off any possible escape through the back garden. They remained in the back garden and made no attempt to enter the house.Shortly afterwards, a number of Gardai went to the front door of the house and rang the door bell. The door was answered by a person who did not identify himself but who is now known to be Ciaran Gaffney, a brother of the Defendant. The Gardai asked Mr. Gaffney if he could assist them in their investigations following a series of offences pursuant to the Road Traffic Acts. Mr. Gaffney replied that they were not welcome on the property and that they were to leave. The Gardai left and returned approximately 10 minutes later. The door was again answered by Mr. Ciaran Gaffney and after a similar request was made of him by the Gardai they were told to leave the premises. Following an incident at the door Ciaran Gaffney was arrested for assaulting one of the Gardai and placed in a Patrol car. One of the Gardai making enquiries of Mr. Ciaran Gaffney was Inspector John Killeen of Rathmines Garda Station. Inspector Killeen stated in evidence that after Mr. Gaffney was taken into custody he, Inspector Killeen, again knocked on the open door and asked if anybody was inside. Inspector Killeen stated that he could hear a male voice answer "Yes, in here". Inspector Killeen and his accompanying Gardai then entered the premises where they arrested the Defendant."

5 The learned District Justice having considered these factsmade the following findings of fact:-

"(1) There was no invitation to the Gardai to enter the premises." On foot of that finding the questions on which he stated the case were as follows:-

6 i "(i) If having arrested Ciaran Gaffney (who had denied Gardai an invitation to enter the premises) for one offence, were the Gardai entitled to enter the premises pursuant to s. 107 of the Road Traffic Act, 1961as amended, which was a totally unrelated offence.

7 (ii) If the Gardai were not so entitled to enter the premises, did they make a lawful arrest of the accused Kenneth Gaffney."

8 The learned High Court Judge answered in the affirmative to each of the questions put.

9 The essential facts of the case were not in dispute and they were that when the Guards first called to the house one occupant of the house namely, the brother of the appellant, refused them entry, and requested them to leave. When the Guards called again, ten minutes later they were again told to leave, there was then apparently some alleged incident as the result of which the said occupant of the house was arrested for allegedly assaulting one of the Guards andplaced in a patrol car. After that the Garda Inspector in question again approached the house, knocked on the open front door asking if anybody was inside and that a male voice answered from the interior saying "Yes, in here". The real question then is whether in the circumstances of the case the male voice which answered saying "Yes, in here" was extending permission to the Garda to enter the premises which had been refused to them twice already. In my view, in the circumstances of this case, the reply to the question as to whether or not there was anybody in the house could not be construed as an invitation to enter.

10 The learned District Justice found as a fact that there was no invitation to the Garda to enter the premises which was the dwelling of the defendant also.

11 The learned High Court Judge was of opinion that "there was no invitation in the ordinary sense of the word to enter the premises", but said "there was certainly no refusal, no request to leave, and no rejection of the opportunity of the Inspector to make a common law arrest".

12 In view of the fact that the Guards had twice been expressly refused permission to enter the house and that there had been no express invitation in the ordinary sense to enter the premises, an invitation cannot be presumed either as a matter of factor of law simply because there was no express refusal. Notwithstanding the decision of O'Hanlon J. in the High Court in D.P.P. v.Closkey, (February 6th 1984) and the English decision of Morrisv. Beardmore 1980 2 AER 753, it is my view that the absence of an express refusal or of an express order to leave cannot be construed as an implied invitation or permission to enter, particularly in the...