DPP v Lawel

• Jurisdiction: Ireland
• Judge: MacMenamin J.,or
• Judgment Date: 29 October 2014
• Neutral Citation: [2014] IECCA 33
• Court: Court of Criminal Appeal
• Date: 29 October 2014

[2014] IECCA 33

COURT OF CRIMINAL APPEAL

MacMenamin J.

Moriarty J.

Herbert J.

[CCA No. 262PX/12]

DPP v Lawel

IN THE MATTER OF AN APPEAL UNDER SECTION 4(E) OF THE CRIMINAL PROCEDURE ACT, 1967, AS AMENDED

BETWEEN:

THE DIRECTOR OF PUBLIC PROSECUTIONS

APPELLANT

AND

IBRAHIM LAWEL

RESPONDENT

CRIMINAL PROCEDURE ACT 1967 S4(E)

CRIMINAL JUSTICE ACT 1991 S9

MISUSE OF DRUGS REGULATIONS SI 328/1988

MISUSE OF DRUGS (DESIGNATION) ORDER, 1993 SI 340/1993

MISUSE OF DRUGS ACT 1977 S5

MISUSE OF DRUGS ACT 1977 S15(A)

CRIMINAL JUSTICE ACT 1999 S4

MISUSE OF DRUGS ACT 1977 S27

CRIMINAL JUSTICE ACT 1999 S5

MISUSE OF DRUGS ACT 1984 S6

CUSTOMS CONSOLIDATION ACT 1876 S77

CUSTOMS & EXCISE (MISC PROVISIONS) ACT 1988 S7

CUSTOMS & EXCISE (MISC PROVISIONS) ACT 1988 S202

CRUISE v JUDGE O'DONNELL 2008 3 IR 230

DPP v JAGUTIS UNREP CCA 7.3.2013 2013/17/4843 2013 IECCA 4

TELECOMMUNICATIONS SERVICES ACT 1983 S84

POSTAL PACKETS & TELECOMMUNICATIONS MESSAGES (REGS) ACT 1993 S2

TELECOMMUNICATIONS SERVICES ACT 1983 S84(1)(A)(D)

POSTAL PACKETS & TELECOMMUNICATIONS MESSAGES (REGS) ACT 1993 S1

CUSTOMS CONSOLIDATION ACT 1876 S39

CUSTOMS CONSOLIDATION ACT 1876 S55

CUSTOMS CONSOLIDATION ACT 1876 S56

CUSTOMS CONSOLIDATION ACT 1876 S57

CUSTOMS CONSOLIDATION ACT 1876 S202

CUSTOMS CONSOLIDATION ACT 1876 S177

DPP v LAIDE & RYAN 2005 1 IR 209

KENNEDY v IRELAND 1987 IR 587

KEARNEY v MIN FOR JUSTICE & ORS 1986 IR 116

DPP v DILLON 2002 4 IR 501

GEASLEY v DPP CCA 24.3.2009 2010 1 ILRM 317 2009/23/5571 2009 IECCA 22

CAHILL v SUTTON 1980 IR 269

Criminal procedure – Right to privacy – Jus tertii – Appellant seeking to quash an order of the Circuit Court – Whether the constitutional rights of the respondent were affected

Facts: The respondent, Mr Lawel, was returned for trial to Naas Circuit Criminal Court in December, 2011, in respect of charges that he had cocaine in his possession for the purpose of selling or supplying it to another contrary to the Misuse of Drugs Act 1977. The charges were allegedly committed in May, 2011 when it was alleged that the respondent took receipt of a parcel, by means of a controlled delivery, at his home addressed to a fictional person. The package was purported to have been sent by the South African Embassy in Caracas, Venezuela. It is said that the package when subsequently analysed was found to contain cocaine. It is said that a Customs Officer examined it under s.77 of the Customs Consolidation Act 1876. When the matter was returned to Naas Circuit Criminal Court it was adjourned to June, 2012, when the defence indicated that it wished to have the matter listed for the purposes of a ruling under s.4E of the Criminal Justice Act, 1999. The s.4E motion was listed for hearing in July, 2012, and the trial judge ruled that certain evidence at issue was inadmissible and the respondent was discharged from the indictment. At the s.4E hearing the respondent argued that the interception was unlawful, that it breached the respondent”s constitutional rights, and that the detention and seizure of the package was also unlawful. The Circuit Court had found that the interception, detention and seizure of the drugs was unlawful, and that s.77 of the 1876 Act applied to warehoused goods and not imported goods. The Court held that the detention of the package pursuant to s.7 of the Customs & Excise (Miscellaneous Provisions) Act, 1988 was unlawful, and that the seizure of the goods under s.202 of the Customs & Excise (Miscellaneous Provisions) Act, 1988 was unlawful. The trial judge then ruled that the respondent had proprietary rights over the package. She held that the respondent was therefore entitled to invoke his constitutional rights of privacy. The appellant, DPP, appealed to the Court of Criminal Appeal against the determination of the Circuit Court to dismiss the prosecution on the summary dismissal motion brought under s.4E. Two issues arose for consideration: (a) the extent of the jurisdiction conferred on the Circuit Criminal Court by virtue of s.4E; (b) the basis upon which the judge directed that the respondent be discharged when it would have been necessary to hear further evidence in order to ascertain whether evidence as to the search, seizure and detention of a parcel should have been admitted. The DPP contended that even if the Court was to conclude that the postal package was not inspected, seized or detained in accordance with law, that it does not automatically follow that such evidence should be excluded, as no constitutional right of the respondent was affected.

Held by MacMenamin J that, adopting Cruise v Judge Frank O”Donnell [2008] 3 IR 230, the issue of an illegal search cannot be appropriately dealt with under s.4E and that a trial court is required to consider a significant range of matters, and conduct a balancing exercise, before making a determination on the issue of admissibility. In the view of the Court of Criminal Appeal, the Customs Officer”s probing of the package amounted to tampering in the natural or ordinary meaning of those words. MacMenamin J held that the power of inspection sought to be relied on derived from s.77 did not apply to the goods, as it applied only to goods to be warehoused. MacMenamin J held that at the centre of the appeal is the invasion of the rights of a non-existent person, as the package was addressed to a fictional person, and as such it was not open to the respondent to assert a jus tertii right; the constitutional right of privacy inheres only in an individual who is cognisable by the courts. The Court of Criminal Appeal held that the evidence would not be rendered inadmissible because it was a breach of the respondent”s constitutional rights. MacMenamin J held that concluding that there was a breach of constitutional rights was an error of the Circuit Court and that it was necessary to carry out a different balancing exercise based on illegality, which could not have been carried out in a s.4E application.

MacMenamin J held that a balancing process such as could only be conducted at a trial was necessary. The Court of Criminal Appeal, therefore, quashed the order of the Circuit Court and directed that the matter should proceed to trial.

Appeal allowed.

1 JUDGMENT of the Court of Criminal Appeal delivered the 29th day of October, 2014, by MacMenamin J.

2 1. Section 4(E) of the Criminal Procedure Act, 1967, as inserted by s.9 of the Criminal Justice Act, 1991 provides:

3 "At any time after the accused is sent forward for trial, the accused may apply to the trial court to dismiss one or more of the charges against the accused. …

4 (4) If it appears to the trial court that there is not a sufficient case to put the accused on trial for any charge to which the application relates, the court shall dismiss the charge.

5 2 (5)(a) Oral evidence may be given on an application under subsection (1) only if it appears to the trial court that such evidence is required in the interests of justice."

6 2. This is an appeal by the Director against a determination of the Circuit Court judge sitting in Naas to dismiss a prosecution on a summary dismissal motion brought under s.4(E) of the Criminal Procedure Act, 1967 as inserted by s.9 of the Criminal Justice Act, 1991.

Return for Trial and the Indictment

7 3. The respondent, Ibrahim Lawel, was returned for trial to Naas Circuit Criminal Court on the 20 ^th December, 2011, in respect of charges contrary to the Misuse of Drugs Acts, as amended by the Criminal Justice Act, 1999.

8 4. Count No. 1 on the indictment charged that the respondent on the 25 ^th May, 2011 at 50 Marina Court, Athy, Co. Kildare, had in his possession a controlled substance, namely, cocaine, for the purpose of selling or otherwise supplying it to another, in contravention of the Misuse of Drugs Regulations, 1988 and 1993, made under s.5 of the Misuse of Drugs Act, 1977, and at the time while the said drugs were in his possession the market value of the controlled drugs amounted to €13,000 or more, contrary to s.15A (as inserted by s.4 of the Criminal Justice Act, 1999), and s.27 (as amended by s.5 of the Criminal Justice Act, 1999) of the Misuse of Drugs Act, 1977.

9 5. Count No. 2 charged that the respondent on the 25 ^th May, 2011 at 50 Marina Court, Athy in County Kildare, had in his possession a controlled drug, namely, cocaine, for the purpose of selling or supplying it to another in contravention of the Misuse of Drugs Regulations 1988 and 1993, made under s.5 of the Misuse of Drugs Act, 1977 contrary to s. 15 (as amended by s.6 of the Misuse of Drugs Act, 1984) and s.27 (as amended by s.6 of the Misuse of Drugs Act, 1984) of the Misuse of Drugs Act, 1977.

10 6. Count No. 3 charged that the respondent on the 25 ^th May, 2011 at 50 Marina Court, Athy in County Kildare, had in his unlawful possession a controlled drug, namely, cocaine, contrary to s.3 and s.27 (as amended by s.6 of the Misuse of Drugs Act, 1984) of the Misuse of Drugs Act, 1977.

11 7. When the matter was returned to Naas Circuit Criminal Court on the 21 ^st February, 2012 it was adjourned to the 6 ^th June, 2012, when the defence indicated in court that it wished to have the matter listed for the purposes of a ruling under s.4(E) of the Criminal Justice Act, 1999. The s.4E motion was listed for hearing on the 19 ^th July, 2012, and the learned trial judge ruled that certain evidence at issue was inadmissible and the respondent was discharged from the indictment.

12 8. Two issues arise for consideration. The first, (a) relates to the extent of the jurisdiction conferred on the Circuit Criminal Court by virtue of s.4(E) of the Criminal Procedure Act, 1967 (as amended). The second issue (b) is also a legal issue, but with a factual backdrop; it is necessary to consider the...