DPP v Lynch

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Isobel Kennedy
• Judgment Date: 14 November 2022
• Neutral Citation: [2022] IECA 267
• Docket Number: Record Number: 172/2021

Between:

The People at the Suit of the Director of Public Prosecutions

Respondent

and

David Lynch

Appellant

[2022] IECA 267

Edwards J.

Kennedy J.

Donnelly J.

Record Number: 172/2021

THE COURT OF APPEAL

JUDGMENT of the Court delivered on the 14th day of November 2022 by Ms. Justice Isobel Kennedy.

1 This is an appeal against conviction. On the 23rd July 2021, the appellant was convicted of possession of a knife contrary to s. 9(1) and (7) of the Firearms and Offensive Weapons Act, 1990 as amended by s. 39 of the Criminal Justice (Miscellaneous Provisions) Act, 2009, burglary contrary to s. 12(1)(b) of The Criminal Justice (Theft and Fraud Offences) Act, 2001, criminal damage contrary to s. 2(1) of the Criminal Damage Act, 1991 and obstruction of a peace officer contrary to s. 19(3) of the Criminal Justice (Public Order) Act, 1994, as amended by s. 185 of the Criminal Justice Act, 2006.

Background Circumstances

2 On the 26th of January 2019, Gardaí attended at the scene of a burglary at a house in the suburbs of Dublin. On arrival, they noted the alarm going off and that a rear window of the property had been smashed. The property was described by the Gardaí as having been “ransacked.” A black Samsung mobile phone was recovered on the floor inside the property amongst the broken glass where the window had been smashed and entry gained. Gardaí subsequently made contact with the injured party, the owner of the house, who informed them that the mobile phone recovered did not belong to anyone in the house.

3 Garda White seized the phone which rang while it was in his possession. He answered the phone to a male who identified himself as Paulie and said that he had lost his phone in the area. The Garda informed him that his name was Steve. They made arrangements to meet at the Molly Malone Statue in Dublin City Centre.

4 Garda White stated that he believed that the phone belonged to this man and that therefore, he was responsible for committing the burglary.

5 At approximately 5pm, Garda White, dressed in plain clothing and accompanied by three other Gardaí attended at the Molly Malone Statue. He was approached by a male, the appellant herein, who asked him if his name was Steve, the appellant then asked him if he had his phone and the Garda said that he did. The Garda observed that the appellant was wearing a knife on a lanyard around his neck. Before handing over the phone, the Garda asked the appellant if he could identify some feature about the phone and the appellant identified a phone number which was sellotaped to the back of the phone.

6 Garda White then handed the phone to the appellant, who offered him €10 for finding the phone, which he refused. Garda White then identified himself as a member of An Garda Síochána and informed the appellant that he was arresting him pursuant to s. 4 (3) of the Criminal Law Act, 1997 for an offence of burglary contrary to s. 12 of the Criminal Justice (Theft and Fraud Offences) Act, 2001. He then cautioned the appellant. The evidence disclosed that the appellant vigorously resisted arrest causing the other two Gardaí to intervene. He was conveyed to Donnybrook Garda Station where he was searched. During this search, Gardaí recovered a bag of jewellery which, it transpired, had been taken from the burgled property.

Grounds of Appeal

7 The appellant relies on three grounds of appeal, as follows:-

• “1. The Learned Trial Judge erred in admitting into evidence the alleged verbal admission of the Applicant that a mobile phone found at the scene of the burglary was his property given the improper manner in which it was obtained.

• 2. Given that this alleged admission specifically grounded the Applicant's arrest and the consequential search of his person, the Learned Trial Judge erred in admitting into evidence the items seized as a result of the search.

• 3. Alternatively, the Learned Trial Judge erred in law or on a mixed question of fact and law in ruling that, in all the circumstances, the arrest of the Applicant and subsequent search and seizure was not unlawful, did not fall short of the basic requirements of fairness and/or was not in breach of the Applicant's Constitutional rights.”

The Arguments

8 The appellant contends that the trial judge erred in admitting into evidence the admission of ownership of the mobile phone. Moreover, the appellant argues that as the arrest was grounded in this admission, all matters that flowed therefrom were tainted and thus it is said the judge erred in admitting into evidence the items of jewellery seized on foot of the search following arrest.

9 The appellant makes two arguments which can be briefly stated, firstly, that the Garda had sufficient information so that the appellant might be charged, and consequently, he ought to have been cautioned. The fact that this was not done constitutes a breach of Rule 2 of the Judges' Rules.

10 Secondly, that the failure to administer a caution violated the requirement of fundamental fairness.

11 The appellant's position is that there was a failure on the part of the Garda involved to issue a timely caution. Police Powers in Ireland by Mr Orange is relied on in this respect where the author states at para 7.12:

“If a garda has decided to charge a person with an offence he should administer the usual caution before asking him any further questions. If the garda is questioning a person and the garda is in possession of sufficient information to give rise to a possibility that a person may be charged with an offence, the member should administer a caution before asking any further questions.”

12 With reference to the argument on basic fairness, the appellant relies on The People (DPP) v Breen [1995] WJSC-CCA 2054 and again refers to Police Powers in Ireland at para. 7.13:

“In Breen, the gardaí were conducting a search of the applicant's farm for firearms. One of the gardaí had previously known the applicant's family and had called to, and was invited into, the farmhouse. The garda stated in evidence that he was not in contact with the other members of the search team, and that he was not aware at that time of any discovery of significance having been made. The member was engaged in a general conversation with the applicant. It became apparent during the conversation that the applicant realised that the gardaí were resuming the search at which point he became very agitated and upset saying ‘I can't talk. Don't ask me. I'll end up like those in the North.’ The garda stated that he believed this change in the applicant's behaviour was connected to the ongoing search. At this stage the garda said ‘Tell me, Sean,’ but he did not administer a caution.”

And:

“However, the Court went on to hold that having regard to the circumstances the garda ‘knew or ought to have appreciated’ that the applicant ‘was on the threshold of admitting some involvement in crime.’ The Court held that ‘the failure to administer a caution in the circumstances of this case violated the requirements of basic fairness and the evidence was wrongly admitted.’”

13 The appellant contends that Garda White ought to have appreciated or did in fact appreciate that the appellant was on the threshold of implicating himself in the burglary.

14 The appellant says that the Garda held back identifying himself and actively encouraged the admission without caution, and therefore, having regard to the basic requirements of fairness, the verbal admission ought not to have been admitted. The trial judge took the view that Bree...