DPP v Kenny

• Jurisdiction: Ireland
• Judge: McCarthy J.
• Judgment Date: 15 June 1989
• Neutral Citation: 1989 WJSC-CCA 1327
• Judgment citation (vLex): [1989] 6 JIC 1501
• Docket Number: 44/87
• Court: Court of Criminal Appeal
• Date: 15 June 1989

1989 WJSC-CCA 1327

COURT OF CRIMINAL APPEAL

McCarthy J.

O'Hanlon J.

Lardner J.

44/87

DPP v. KENNY

DIRECTOR OF PUBLIC PROSECUTIONS

-v-

MARK KENNY

1 Judgment of the Court delivered the 15th day of June1989by McCarthy J.

2 The Applicant was convicted of two offences under the Misuse of Drugs Act, 1977/ 84the offences being alleged to have taken place on the 2nd October 1984. On that date, Garda Conway, armed with a Search Warrant dated 29th September 1984, forced an entry of Flat 1, Ground Floor, 1 Belgrave Place, Rathmines, Dublin, where the Applicant resided and he found samples of heroin and various incriminating material. According to the Garda, the Applicant stated that the Flat was his and that he took responsibility for anything that might be found there. Whilst there was other evidence germane to the issue of guilt, it is common case that the admissibility of Garda Conway's evidenceconcerning what was found and said in the Flat turned on the validity of the Search Warrant.

3 Section 26(1) of the Act, as amended, provides:-

"If a Justice of the District Court or a Peace Commissioner is satisfied by information on oath of a member of the Garda Siochana that there is reasonable grounds for suspecting that:-"

(a) a person is in possession in contravention of this Act on any premises or other land of a controlled drug, a forged prescription or a duly issued prescription which has been wrongfully altered and that such drug or prescription is on a particular premises or other land...

4 Such Justice or Commissioner may issue a search warrant mentioned in subsection (2) of this section."

5 The information sworn by Garda Conway states:-

"I am a member of An Garda Siochana and I suspect, on the basis of information within my possession, that"

(a) A person is in possession on the premises or other land Flat 1, Ground Floor, 1 Belgrave Place in contravention of the Misuse of Drugs Act, 1977and 1984of a controlled drug, namely Diamorphine or Cannabis resin and that

(b) Such drug is on a particular premises or other land Flat 1, Ground Floor, 1 Belgrave Place, Rathmines.

6 I hereby apply for a warrant to search for and seize the articles namedabove."

7 The warrant to search stated:-

"Whereas I, the undersigned Peace Commissioner, being satisfied on the information on oath of Garda Matthew Conway of An Garda Siochana that there is reasonable grounds (sic) for suspecting that a controlled drug to which the Misuse of Drugs Act, 1977and 1984, apply namely Diamorphine and Cannabis Resin etc., is in contravention of the said Act or Regulation cited hereunder in the possession or under the control of any person etc."

8 The trial Judge, after evidence from Garda Conway and legal argument, admitted the evidence as to the search, holding that the warrant had been validly issued by the Peace Commissioner. That ruling is the sole issue on this application. The argumentfor the Applicant is that the information sworn by Garda Conway, albeit in an established printed form, does not comply with the requirements of the section in that it does no more than state the suspicion held by Garda Conway on the basis of the information within his possession; it does not state what that information is or its nature, no evidence having been led at the trial as to any further information that Garda Conway may or may not have given to the Peace Commissioner.

9 A like warrant and information came for consideration by Hamilton P., in Byrne -v- Grey, Ireland and the Attorney General (1)in proceedings by way of Judicial Review. There the information on oathstated:-

"I am a member of the Garda Siochana and I have reasonable grounds for suspecting that a plant of the genus cannabis is being cultivated contrary to section 17 of the Misuse of Drugs Act, 1977and 1984on or in the premises or other land at 50 Whitebrook Park, Tallaght, Dublin 24."

10

Hamilton P., having cited observations made in I.R.C. -v- RossminsterLtd (2) held that a member of the Garda Siochanaseeking the issue of a warrant

"must be in a position to and so satisfy either the District Justice or the Peace Commissioner of the relevant facts so that the District Justice or the Peace Commissioner can satisfy himself inaccordance with the requirements of the section. He is not entitled torely on the suspicion of a member of the Garda Siochana applying for thewarrant. As is quite clear from the terms of the warrant, the firstnamed Respondent in this case relied on the information on oath of theGarda Siochana which merely stated that he the member of the GardaSiochana had reasonable grounds for suspicion. I am satisfied that thefirst named Respondent acted without jurisdiction in issuing the saidwarrant because he personally had no information before him thatwould

enable him to be satisfied that there was reasonable grounds forsuspicion."

11 The statutory provision being construed in the Rossminster case was the Taxes Management Act,...