DPP v Kenny

• Jurisdiction: Ireland
• Judgment Date: 20 March 1990
• Date: 20 March 1990
• Docket Number: [C.C.A. No. 44 of 1987: S.C. No. 409 of 1989]
• Court: Supreme Court

Court of Criminal Appeal

Court of Criminal Appeal

Supreme Court

[C.C.A. No. 44 of 1987: S.C. No. 409 of 1989]

The People (Director of Public Prosecutions) v. Kenny

The People (at the suit of the Director of Public Prosecutions)

and

Mark Kenny

Cases mentioned in this report:—

Berkeley v. EdwardsIR [1988] I.R. 217.

Byrne v. GreyIR [1988] I.R. 31.

Director of Public Prosecutions v. McMahonIRDLRM [1986] I.R. 393; [1987] I.L.R.M. 87.

The People (Attorney General) v. O'BrienIR [1965] I.R. 142.

The People (D.P.P.) v. ConroyIRDLRM [1986] I.R. 460; [1988] I.L.R.M. 4.

The People v. FarrellIR [1978] I.R. 13.

D.P.P. v. GaffneyIRDLRM [1987] I.R. 173; [1986] I.L.R.M. 657.

The People (Director of Public Prosecutions) v. HealyIR [1990] 2 I.R. 73.

The People v. LynchIRDLRM [1982] I.R. 64; [1981] I.L.R.M. 389.

The People v. MaddenIRDLTR [1977] I.R. 336; (1976) 111 I.L.T.R. 117.

The People v. O'LoughlinIRDLTR [1979] I.R. 85; (1978) 113 I.L.T.R. 109.

The People (D.P.P.) v. QuilliganIRDLRM [1986] I.R. 495; [1987] I.L.R.M. 606.

The People v. ShawIR [1982] I.R. 1.

The People v. WalshIR [1980] I.R. 294.

Reg. v. I.R.C., Ex p. RossministerELRWLRUNKUNKUNK [1980] A.C. 952; [1980] 2 W.L.R. 1; [1979] 3 All E.R. 385; [1980] 1 All E.R. 80; (1980) 70 Cr. App. R. 157.

The State (Quinn) v. RyanIRDLTR [1965] I.R. 70; (1964) 100 I.L.T.R. 105.

Terry v. OhioUNK 392 U.S. 1.

United States v. LeonUNK (1983) 468 U.S. 897.

Criminal law - Evidence - Search warrant - Validity - Suspicion - Swearing of information by garda before peace commissioner - Requirement that peace commissioner be satisfied by information on oath of reasonable grounds for suspecting that an offence had been committed - Information grounding suspicion not specified - Whether search warrant validly issued - Misuse of Drugs Act, 1977 (No. 12), s. 26.

Constitution - Inviolability of dwelling - Domiciliary search on foot of invalid search warrant - Standard procedure followed for obtaining warrant - Whether deliberate and conscious violation of accused's constitutional rights - Whether "deliberate and conscious" refers to act complained of - Exclusion of evidence obtained by invasion of constitutional rights - Whether evidence must be excluded where actor had no knowledge that constitutional rights were being invaded - Constitution of Ireland, 1937, Article 40, s. 5.

Criminal Appeal.

The applicant sought leave to appeal against two convictions before the Dublin Circuit (Criminal) Court on charges of possession of a controlled drug contrary to s. 3 of the Misuse of Drugs Act, 1977, as amended, and possession of a controlled drug for the purpose of supplying same to another contrary to s. 15 of the same Act.

The application was heard by the Court of Criminal Appeal on the 8th May, 1989, and judgment was reserved. The Court delivered judgment on the 15th June, 1989, and granted leave to appeal but required further argument on the issue as to whether or not the deliberate and conscious act of forcing admission into the appellant's home was a violation of his constitutional rights with the result that the fruits of the search consequent on such breach were inadmissible in evidence.

The appeal on the issue of whether or not the evidence obtained on foot of the invalid search warrant was admissible was heard on the 17th July, 1989, and judgment was reserved.

On the application of counsel for the appellant, the Court certified that its decision involved a point of law of exceptional public importance and that it was desirable that an appeal be taken to the Suipreme Court. The point of law certified is set out in the headnote ante and the judgments post.

The appeal was heard by the Supreme Court on the 7th March, 1990.

Section 26, sub-s. 1 of the Misuse of Drugs Act, 1977, as amended by s. 13 of the Misuse of Drugs Act, 1984, provides inter alia:—

"(1) If a Justice of the District Court or a Peace Commissioner is satisfied by information on oath of a member of the Garda Síochána that there is reasonable ground for suspecting that — "

• (a) a person is in possession in contravention of this Act on any premises of a controlled drug, . . . and that such drug . . . is on a particular premises, . . .

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

The appellant's flat was searched by Garda C. pursuant to a search warrant issued under s. 26 of the Act of 1977 and samples of heroin were found. In his application for a search warrant Garda C. swore an information before a peace commissioner and deposed that:—

". . . I suspect, on the basis of information within my possession, that (a) a person is in possession on the premises . . . of a controlled drug, namely Diamorphine or Cannabis resin . . . I hereby apply for a warrant to search for and seize the articles named above."

The warrant to search states inter alia:—

"Whereas I, the undersigned Peace Commissioner, being satisfied on the information on oath of Garda C. . . ."

There was no evidence that any inquiry was made by the peace commissioner as to the basis of the garda's suspicion. The admissibility of Garda C.'s evidence concerning the search turned on the validity of the search warrant. The trial judge held that the warrant had been validly issued by the peace commissioner and admitted the evidence as to the search. That ruling of the trial judge was the sole issue in the appeal. It was argued on behalf of the applicant that the search warrant was invalid and inadmissible in evidence because it did no more than state that Garda C. held a suspicion; it did not state the information that formed the basis of that suspicion and that no evidence was led at the trial as to any further information, if any, that Garda C. put before the peace commissioner.

Held by the Court of Criminal Appeal (McCarthy, O'Hanlon and Lardner JJ.) that the warrant was invalid because there was no evidence that the peace commissioner had inquired into the basis of the garda's suspicion. Accordingly he had failed to exercise his judicial discretion and had failed to carry out his function under the Act.

Byrne v. GreyIR [1988] I.R. 31 applied.

The Court granted leave to appeal and required further argument as to whether or not the deliberate and conscious act forcing admission into the appellant's home was a violation of his constitutional rights with the result that the fruits of the search were inadmissible in evidence.

Held by the Court in declaring the evidence admissible, 1, that while the procedure for obtaining a search warrant was found to be invalid, and the consequent entry of the premises unlawful, there was no deliberate and conscious violation of the appellant's constitutional rights; Garda C. had taken all steps believed to have been necessary for obtaining a search warrant and it was issued by the peace commissioner on the basis that there was compliance with the requirements of the Act of 1977.

The People (Attorney General) v. O'BrienIR [1965] I.R. 142; The People v. MaddenIR[1977] I.R. 336;The People v. FarrellIR[1978] I.R. 13; The People v. O'LoughlinIR[1979] I.R. 85; The People v. WalshIR[1980] I.R. 294; The State (Quinn) v. RyanIR[1965] I.R. 70 and U.S. v. LeonUNK 468 U.S. 897 considered.

2. That the admissibility of the evidence obtained on foot of the invalid search warrant was a matter for the discretion of the court of trial. In the circumstances the correct decision for a trial judge would have been to admit the evidence. While the evidence was admitted by the trial judge on an incorrect basis, no miscarriage of justice occurred.

Per curiam: The concept of "extraordinary excusing circumstances" had only to be considered when the court was of the view that a deliberate and conscious violation of constitutional rights had taken place, otherwise the admissibility of the evidence was a matter for the court's discretion.

Dicta of Walsh J. in The People v. WalshIR[1980] I.R. 294 at p. 317 and The People v. ShawIR[1982] I.R. 1 at p. 32 not followed.

On the application of counsel for the appellant the Court certified that its decision involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal be taken to the Supreme Court. The Court granted a certificate pursuant to s. 29 of the Courts of Justice Act, 1924, and the point of law so certified was whether the forcible entry of the appellant's home by members of an Garda Síochána on foot of an invalid search warrant constituted a deliberate and conscious violation of the appellant's constitutional rights such as to render any evidence obtained by the said members in the course of the ensuing search inadmisslbe at the appellants trial. At the hearing of the appeal, pursuant to the said certificate, it was

Held by the Supreme Court (Finlay C.J., Walsh and Hederman JJ.; Griffin and Lynch JJ. dissenting), in allowing the appeal, 1, that evidence obtained as a result of a deliberate and conscious violation of constitutional rights of a citizen must be excluded unless the court in its discretion was satisfied that there were extraordinary excusing circumstances which justified the admission of the evidence or that the act constituting the breach of constitutional rights was committed unintentionally or accidentally.

2. (Griffin and Lynch JJ. dissenting). That in deciding whether the violation of constitutional rights was carried out consciously and deliberately the test was whether the act complained of was conscious or deliberate and it was immaterial whether or not the actor knew that what he was doing was in breach of the constitutional rights of the accused.

The People (Attorney General) v. O'BrienIR [1965] I.R. 142; The People v. WalshIR[1980] I.R. 294;The People (D. P. P.) v. HealyIR[1990] 2 I.R. 73 followed. The People v. ShawIR[1982] I.R. 1 not followed, dicta of Walsh J. approved.

3. That the detection of crime and...