DPP v Lawless

• Jurisdiction: Ireland
• Judge: McCARTHY J.
• Judgment Date: 28 November 1985
• Neutral Citation: 1985 WJSC-CCA 2010
• Docket Number: Record No. 69/84
• Court: Court of Criminal Appeal
• Date: 28 November 1985

DPP v. LAWLESS

The People

( DIRECTOR OF PUBLIC PROSECUTIONS )

v.

JOHN LAWLESS

1985 WJSC-CCA 2010

Record No. 69/84

COURT OF CRIMINAL APPEAL

Synopsis:

CRIMINAL LAW

Evidence

Admissibility - Procurement - Unlawful means - Unauthorised possession of controlled drug - Conviction - Drug found in possession of accused at certain premises - Unlawful entry of garda to premises - Accused not a tenant or occupier of the premises - Unlawful entry not an infringement of any of accused's rights - Evidence of unlawful possession not inadmissible - Conviction valid - (69/84 - C.C.A. - 28/11/85) - 3 Frewen 30

|The People v. Lawless|

CRIMINAL LAW

Evidence

Presumption - Drugs - Possession - Purpose of accused - Sale or supply to another - Proof of unauthorised possession of controlled drug - Statutory presumption that such purpose established - Statutory presumption applicable where trial court satisfied that reasonable to assume drug not intended for immediate personal use of accused - Absence of evidence at trial that accused was drug user - Trial judge entitled to apply presumption - Conviction affirmed Drugs Act, 1977, s. 15 - (69/84 - C.C.A. - 28/11/85) - 3 Frewen 30

|The People v. Lawless|

CRIMINAL LAW

Warrant

Validity - Search warrant - Condition precedent - Information on oath of garda - Statutory requirements concerning contents of information - Ommission of a statutory requirement - Warrant defective - Unlawful entry on premises pursuant to warrant - Drugs Act, 1977, s. 26 - (69/84 - C.C.A. - 28/11/85) - 3 Frewen 30

|The People v. Lawless|

EVIDENCE

Procurement

Unlawful means - Controlled drug - Unauthorised possession - Drug found in possession of accused at certain premises - Unlawful entry of garda to premises - Accused not a tenant of occupier of premises - Unlawful entry not an infringement of any of accused's rights - Evidence of unlawful possession admissible - Conviction valid - (69/84 - C.C.A. - 28/11/85) - 3 Frewen 30

|The People v. Lawless|

Citations:

AG, PEOPLE V O'BRIEN 1965 IR 142

DPP V HIGGINS UNREP SUPREME 22.11.85 1985/7/1994

DPP V WALSH 1980 IR 294

DUNNE V CLINTON 1930 IR 366 1 FREWEN 563

MISUSE OF DRUGS ACT 1977 S15

MISUSE OF DRUGS ACT 1977 S15(1)

MISUSE OF DRUGS ACT 1977 S15(2)

MISUSE OF DRUGS ACT 1977 S26

MISUSE OF DRUGS ACT 1977 S26(1)(A)

MISUSE OF DRUGS ACT 1977 S3

MISUSE OF DRUGS ACT 1977 S5

O'LOUGHLIN 1979 IR 85

1 JUDGMENT delivered on 28th day of November 1985by McCARTHY J.

2 Following a trial before the President of the Circuit Court, on the 25th July 1984 the applicant was convicted by a jury of

3 (a) possession of a controlled drug, contrary to s. 3 of the Misuse of Drugs Act, 1977and

4 (b) possession of a controlled drug for the purpose of unlawfully supplying it to another contrary to s. 15(1) of the Act.

5 The drug in question was Heroin. On the 4th October 1983 Detective Sergeant John G. O'Mailey swore an information before a Peace Commissioner that "I have reasonable ground for suspecting from information which I have in my possession that a controlled drug namely Diamorphine (Heroin) a forged prescription, or a duly issued prescription which has been wrongfully altered will be found at the premises No. 60 Rathland Flats, Dublin 12 in the saidDistrict (sic)" and sought a Warrant to enter and search such premises, which Warrant, on the same date, was granted by a Peace Commissioner being "satisfied on the Information on Oath of D/Sgt. John O'Malley of An Garda Siochana, that there is (sic) reasonable grounds for suspecting that a controlled drug to which the Misuse of Drugs Act, 1977applies namely:-

"Diamorphine (Heroin) or any pipe, document, utensil, forged prescription, or a duly issued prescription which has been wrongfully altered, is, in contravention of the said Act or Regulation made thereunder in the possession or under the control of any person in the premises 60 Rathland Flats, Dublin 12 in the said District."

6 In reliance on the Warrant, Detective Sergeant O'Malley and other Gardai went to the premises 60 Rathland Road (sic) Flats, Dublin 12 and, using such force as was necessary, made their way into a flat where the applicant and another man, Ryan, were present. At the time of the forced entry, the applicant was in the lavatory and the noise of a flushing W.C. was heard. Detective Garda Byrne had waited at what was established to be the manhole being fed from the lavatory in question and found seventeen small white packets each of which contained Heroin in quantities varying from 5 to 10milligrammes. Sergeant O'Malley and Detective Garda Byrne, by experiment, established the fact of discharge from the lavatory in which the applicant was found to the manhole where the Heroin was found.

7 This application for leave to appeal has been founded upon fourgrounds:-

8 1. The refusal of the learned trial Judge to discharge the jury following an allegedly inflammatory opening address by Counsel for the prosecution. There is no requirement that such an address be transcribed, no more than that of Counsel for the accused; from, however, such portions of the address as are to be found in the application for a discharge of the jury, the Court is satisfied that there was no impropriety or, indeed, anything of an inflammatory nature in such address.

9 2. That the information sworn by Detective Sergeant O'Malley did not comply with the requirements of s. 26 of the Act of...