DPP v Mallon

• Jurisdiction: Ireland
• Judge: O'Donnell J.
• Judgment Date: 03 March 2011
• Neutral Citation: [2011] IECCA 29
• Date: 03 March 2011
• Court: Court of Criminal Appeal
• Docket Number: [C.C.A.

DPP v Mallon

Between:

The People at the Suit of the Director of Public Prosecutions

Prosecutor/Appellant

-and-

Garet Mallon

Respondent

[2011] IECCA 29

O'Donnell J.

Gilligan J.

O'Keefe J.

9PX/10

COURT OF CRIMINAL APPEAL

CRIMINAL LAW

Search warrant

Validity - Misdescription - Typographical error - Error in address of premises to be searched - Error not misleading - Whether warrant invalid - Whether error of fundamental nature - People (DPP) v Edgeworth [2001] 2 IR 131 applied; People (DPP) v Balfe [1998] 4 IR 50, People (DPP) v Massoud [2009] IECCA 94, (Unrep, CCA, 24/7/2009) and People (DPP) v McCarthy [2010] IECCA 89, [2011] 1 ILRM 430 and People (AG) v O'Brien [1965] IR 142 followed; Kuruma v The Queen [1955] AC 197 and Mapp v Ohio (1961) 367 US 643 considered; Byrne v Grey [1988] IR 31, Director of Public Prosecutions v Dunne [1994] 2 IR 537, People (DPP) v Kenny [1990] 2 IR 110, Simple Imports Ltd v Revenue Commissioners [2000] 2 IR 243, People (DPP) v McGoldrick [2005] IECCA 84, [2005] 3 IR 123 and People (DPP) v McCarthy [2010] IECCA 89, [2011] 1 ILRM 430 distinguished - Prosecutor's appeal allowed (9PX/2010 - CCA - 3/3/2011) [2011] IECCA 29

People (DPP) v Mallon

Facts The appellant appealed pursuant to s. 4(7) of the Criminal Procedure Act 1967, as inserted by s.9 of the Criminal Justice Act, 1999 against the order of the learned trial judge dismissing the charges against the respondent. Following a search of the respondent's dwelling home and the discovery of a quantity of diamorphine the respondent was charged with three offences under the Misuse of Drugs Act 1977, as amended. The search of the respondent's home was carried out on foot of a search warrant issued pursuant to s. 26 of the Misuse of Drugs Act 1977, as amended, which authorised the search of a premises described as "4 Marrowbone Close, Dublin 8". The ground upon which the application for a dismissal of the charges was made and granted was that the address contained within the warrant was not the correct address of the premises searched. The correct address was "4 Marrowbone Lane Close, Dublin 8" and in fact there was no such address as "4 Marrowbone Close, Dublin 8". It was argued on behalf of the respondent that the warrant had been issued for a premises which did not exist, and could not, therefore, authorise the search of the premises which was in fact searched. It was submitted that the search was illegal and consequently the search was a breach of the constitutional right to inviolability of the dwelling home. It was further submitted that the entry was a deliberate and conscious violation of the right of the citizen and consequently the evidence obtained must be excluded in the absence of any extraordinary excusing circumstances. The respondent relied on the Supreme Court decision in The People (DPP) v Kenny [1990] 2 IR 110. It was also submitted on behalf of the respondent that the decision of The People (DPP) v Balfe [1998] 4 IR 50 relied upon by the appellant no longer represented the law and was inconsistent with the Central Criminal Court decision of DPP v Henry Dunne [1994] 2 IR 537, which was approved of in the Supreme Court decision of The People (DPP) v Edgeworth [2000] 2 IR 131. The learned trial judge stated that he was bound by the decisions in Henry Dunne and Edgeworth. However, he went on to state that he felt in this case the exclusionary type rule was a nonsense and that if he could and felt free to apply the Balfe decision then he would do so. The respondent submitted on this appeal that the decision in The People (AG) v O'Brien [1965] IR 142 no longer represented the law and had been overruled by the decision in The People (DPP) v Kenny [1990] 2 IR 110.

Held by the C.C.A; O'Donnell J. (Gilligan, O'Keeffe JJ) in allowing the appeal: That this case raised the following issue; 'in what circumstances will a warrant be considered ineffective, or invalid so as to give rise to the argument that evidence obtained should be excluded?' It was notable that the approach taken by Carney J. in the Dunne case was not that any error invalidated the warrant, but rather the error, which related to a requirement of statute, had the effect that the warrant could not be read to make sense, and the warrant was thus invalid. The Supreme Court when deciding the case of Edgeworth was not referred to the Balfe case and consequently Edgeworth could not be understood as disapproving of either the decision or the reasoning in that case, as the learned trial judge here seemed to think. It was clear, from a review of the case law, that a mere error will not invalidate a warrant, especially one which is not calculated to mislead, or perhaps just as importantly, does not mislead. The warrants found to be invalid in the cases mentioned below were those where there was no jurisdiction to issue the warrant because a statutory precondition had not been fulfilled or where the warrant on its face did not show that the preconditions had been satisfied. In such cases, the warrant had no validity in law, and entry onto premises consequent on the warrant was illegal. It was clear that not every error will lead to invalidation of the warrant. In particular, where the substance of the warrant as opposed to the form is not open to objection, invalidity will not necessary ensue. In such cases, the nature of the error or omission must be scrutinised to see if it is of a fundamental nature. Among the factors which may be taken into account are whether the error is a mere misdescription and whether it is likely to mislead. The review of the case law by the learned trial judge herein was insufficient and incorrect and the decision in Balfe was not overruled and was a valid and binding precedent. What was involved in the case before this court was a mere misdescription of the premises to be searched and the misdescription was not calculated to mislead and in fact did not mislead. The fact that there was no address in Dublin or elsewhere of the address stated on the warrant did not assist the respondent. Once it was acknowledged that such a fact would be known to the potential addressees of the warrant then that only left the present premises as the likely subject of the warrant. Consequently, the court should not find an insuperable difficulty in understanding the warrant.

The following Irish case law was considered and discussed in this judgment:

The People (AG) v O'Brien [1965] IR 142

The People (DPP) v Kenny [1990] 2 IR 110

DPP v Henry Dunne [1994] 2 IR 537

The People (DPP) v Balfe [1998] 4 IR 50

The People (DPP) v Edgeworth [2000] 2 IR 131

Simple Imports v Revenue Commissioners [2000] 2 IR 243

DPP v David McGoldrick [2005] 3 IR 123.

The People (DPP) v Massoud [2009] IE CCA 94 (Unreported, CCA, Kearns J, 24/07/09)

The People(DPP) v McCarthy [2010] IE CCA 89, (Unreported, CCA, Macken J., 12/10/2010).

Reporter: L.O'S.

MISUSE OF DRUGS ACT 1977 S26

CRIMINAL JUSTICE ACT 1999 S9

CRIMINAL JUSTICE ACT 1999 S4E(7)

DPP v KENNY 1990 2 IR 110

DPP v BALFE 1998 4 IR 50

DPP v DUNNE 1994 2 IR 537

DPP v EDGEWORTH 2001 2 IR 131

CONSTITUTION ART 40.5

SIMPLE IMPORTS v REVENUE COMMISSIONERS 2000 2 IR 243

DPP v MCGOLDRICK 2005 3 IR 123

MCGRATH EVIDENCE 2005

DPP (WALSH) v CASH 2008 1 ILRM 443 2007 IEHC 108

O'KEEFE v HICKEY 2009 2 IR 302

AG v O'BRIEN 1965 IR 142

COURTS OF JUSTICE ACT 1924 S29

KURUMA v QUEEN 1955 AC 197

MAPP v OHIO 1960 367 US 643

OFFENCES AGAINST STATE ACT 1939 S30

DPP v SHAW 1982 1 IR 1

BYRNE v GREY 1988 IR 31

R v INLAND REVENUE COMMISIONERS 1980 AC 952

CUSTOMS CONSOLIDATION ACT 1876 S205 (UK)

CUSTOMS & EXCISE (MISCELLANEOUS PROVISIONS) ACT 1988 S5(1)

CRIMINAL PROCEDURE ACT 1967 S34(1)

COURTS OF JUSTICE ACT 1924 S88

COPYRIGHT & RELATED RIGHTS ACT 2000 S140(1)

DPP v MASSOUD UNREP CCA 24.7.2009 2009/17/4133 2009 IECCA 94

CRIMINAL JUSTICE ACT 1994 S63

DISCLOSURE OF CERTAIN INFORMATION FOR TAXATION & OTHER PURPOSES ACT 1996 S1

DPP v MCCARTHY 2011 1 ILRM 430 2010/16/3825 2010 IECCA 89

CRIMINAL JUSTICE (SURVEILLANCE) ACT 2009 S14

1 On the 29 ^th November, 2006, Garda Kevin Lawless swore an information on oath before peace commissioner Patrick Morton seeking a search warrant pursuant to s.26 of the Misuse of Drugs Act 1977, as amended, in respect of premises described as "4 Marrowbone Close, Dublin 8". After inquiry by the peace commissioner, a warrant was issued. The warrant was in standard printed form with blanks for the name of the informant, the nature of the controlled drug, the address of the premises, and a blank for the signature of the peace commissioner or District Justice as appropriate. The form also provided, at certain points, for options and invited deletion of the option considered inappropriate. In this case, both the information and the search warrant issued pursuant to it were completed in all material respects. The executing commissioner had jurisdiction to grant such a warrant being a peace commissioner assigned to the County of Dublin, and the warrant correctly recited his jurisdiction. It is clear that the statutory preconditions to the grant of a warrant under s.26, namely that the peace commissioner was satisfied by information on oath from a member of An Garda Síochána that there was reasonable ground for suspecting that a person who was in possession of a controlled drug on premises, were satisfied. Furthermore, the warrant correctly recorded that these statutory preconditions had been established. The warrant was executed without objection and diamorphine to the value of €300,000 was found. As a result, the accused was charged with three offences under the Misuse of Drugs Act 1977, as amended. However, before the trial proper commenced, the defence invoked the procedure under s.4(E) of the ...