DPP v McCarthy

• Jurisdiction: Ireland
• Judge: Macken, J.
• Judgment Date: 12 October 2010
• Neutral Citation: [2010] IECCA 89
• Docket Number: [No. CCA 263PX/09]
• Court: Court of Criminal Appeal
• Date: 12 October 2010

[2010] IECCA 89

THE COURT OF CRIMINAL APPEAL

Macken, J.

Budd, J.

O'Keeffe, J.

[No. CCA 263PX/09]

DPP v MCCARTHY

IN THE MATTER OF SECTION 9 OF THE CRIMINAL JUSTICE ACT, 1999

Between/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

-and-

GARETH McCARTHY

Respondent

CRIMINAL JUSTICE ACT 1999 S9

CRIMINAL JUSTICE ACT 1967 S4E

MISUSE OF DRUGS ACTS 1977/1984 S26

SIMPLE IMPORTS v REVENUE CMSR 2000 2 IR 243

DPP v EDGWORTH 2001 2 IR 131

DPP v DUNNE 1994 2 IR 537

DPP v BALFE 1998 4 IR 50

LARCENY ACT 1916(UK)

CRIMINAL LAW

Search Warrant

Signatory - Heading on warrant - Error - Warrant signed by peace commissioner headed District Court - Failure to delete notation describing signatory as District Court judge - Principles in relation to search warrants - Whether trial judge erred in finding error on face of warrant fundamental - Simple Imports Ltd v Revenue Commissioners [2000] 2 IR 243; People (DPP) v Balfe [1998] 4 IR 50 considered; People (DPP) v Edgeworth [2001] 2 IR 131; Director of Public Prosecutions v Dunne [1994] 2 IR 537 distinguished - Criminal Procedure Act 1967 (No 12), s 4E - Misuse of Drugs Act 1977 (No 12), s 26 - Misuse of Drugs Act 1984 (No 18) - Criminal Justice Act 1999 (No 10) - Application refused; Circuit Court order affirmed (263PX/09 - CCA - 12/10/2010) [2010] IECCA 89

People (DPP) v McCarthy

Facts the Circuit Criminal Court, on application to it by the accused pursuant to section 4E of the Criminal Procedure Act 1967, as amended by section 9 of the Criminal Justice Act 1999, dismissed the charges laid against him in light of certain errors in the search warrant used in the course of the investigation. The infirmity in the warrant complained of was that, although the warrant had not been issued by the District Court but rather by a Peace Commissioner, it was nevertheless entitled and bore the heading "The District Court" as if it had been issued from the District Court and bore the following notation under the signature of the signatory: "Judge of the District Court assigned to the said District". It was argued that the fruits of the search made on foot of the warrant were inadmissible in evidence as a result of the warrant's invalidity. The Circuit Court judge held that the error on the face of the warrant was a fundamental error, not capable of being corrected on viva voce evidence. The prosecutor appealed that decision to the Court of Criminal Appeal pursuant to section 4E of the Criminal Procedure Act 1967, as amended.

Held by the Court of Criminal Appeal (Macken J. delivering the judgment on behalf of the Court) in dismissing the appeal and affirming the order of the Circuit Court that:-

Documents, such as search warrants, had to be carefully prepared having regard to the fact that they entitle gardaí to enter the property of a citizen, particularly a dwelling house, and in the course of so doing, to use such force as may be necessary, to gain admission and to carry out the search and seizure authorised by the warrant not every error in a warrant would, by virtue of same, lead automatically to the invalidation of a warrant. In particular, where the substance of the warrant, as opposed to its form, was not open to objection, the invalidation of the warrant would not necessarily ensue.

The nature of the error, or omission, had to be scrutinised by the courts to see whether it was of a fundamental nature, including an error going to jurisdiction. Several factors could be taken into account, including whether the error was a mere mis-description, whether it was likely to mislead, whether it undermined the apparent jurisdiction to issue it, according to the warrant on its face before the Court would find, in an appropriate case, that it should be considered invalid.

It was not possible in relation to non-substantive errors, that is to say, errors which did not affect the substance of the legislative requirements found in the body of the warrant itself, to say that they would never lead to the invalidation of a search warrant, due to the wide variety and nature of errors which could occur.

Reporter: P.C.

Macken, J.

1 This is an application made on behalf of the Director of Public Prosecutions, pursuant to the provisions of the Criminal Procedure Act,1967 ("the Act of 1967"), as amended by s.9 of the Criminal Justice Act, 1999 ("the Act of 1999"). It is made against the decision of the Circuit Court judge sitting at a Dublin Circuit Criminal Court on the 12^th October, 2009, who ruled that, in light of certain errors in the search warrant used in the course of the crime investigation, the details of which will be dealt with later in this judgment, the charges laid against the respondent would have to be dismissed.

2 The respondent, as accused, was charged with certain offences under the provisions of the Misuse of Drugs Acts,1977/1984 ("the Acts of 1977/1984"). In particular, that at specified premises in Old Bawn, Tallaght, County Dublin, he was alleged to have in his possession prohibited drugs, namely, cocaine and diamorphine (heroin), in respect of which there were four counts, as follows:

3 1. Unlawful possession of cocaine.

4 2. Unlawful possession of diamorphine.

5 3. Possession of diamorphine for the purposes of sale or supply.

6 4. Possession of diamorphine having a market value at the time amounting to €13,000, or more, for the purposes of sale or supply.

7 These are serious offences, especially the latter two, the penalties in respect of these being correspondingly high.

8 The respondent was returned for trial, in the usual way, to the Dublin Circuit Criminal Court, and on his behalf an application was made pursuant to the provisions of s.4E of the Act of 1967, as amended by s.9 of the Act of 1999, seeking the dismissal of the charges laid against him on the Bill of Indictment. That section provides, in its amended form, as follows:

9 2 4E. - (1) 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.

10 (2) Notice of an application under subsection (I) shall be given to the prosecutor not less than 14 days before the date on which the application is due to be heard.

11 (3) The trial court may, in the interests of justice, determine that less than 14 days notice of an application under subsection (1) may be given to the prosecutor.

12 (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.

13 (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.

14 (b) In paragraph (a) 'oral evidence' includes-

15 (i) any evidence given through a live television link pursuant to Part III of the Criminal Evidence Act, 1992, or section 39 of the Criminal Justice Act, 1999, or

16 (ii) a videorecording of any evidence given through a live television link pursuant to that Part or section in proceedings under section 4F.

17 (6) Where the trial court is satisfied that it is in the interests of justice that any document required under this Part to be served on the accused or his solicitor be served at the hearing of an application under this section-

18 (a) the prosecutor shall serve the document on the accused or his solicitor, if any, at the hearing, and

19 (b) the court may, if it considers it appropriate to do so, adjourn the hearing for that purpose.

20 (7) Where a charge is dismissed by the trial court under subsection (4), the prosecutor may, within 21 days after the dismissal date, appeal against the dismissal to the Court of Criminal Appeal.

21 (8) On an appeal under subsection (7), the Court of Criminal Appeal may-

22 (a) affirm the decision of the trial court, or

23 (b) quash the decision of the trial court, in which case the trial of the accused may proceed as if the charge had never been dismissed.

24 The basis for the application stems from the terms of a search warrant, the background to which is as follows:

25 a A. In January, 2008 Garda O'Connell of the local garda station obtained from a Peace Commissioner for the appropriate area a search warrant pursuant to s.26 of the Acts of 1977/1984, permitting the gardai to search specified premises at Old Bawn, Tallaght in County Dublin. It appears clear that Garda O'Connell informed the Peace Commissioner that he had received confidential information from a source, claimed to be reliable, or who had previously been reliable, that cocaine was being sold from the premises in question and that he, the garda, had carried out enquiries and effected surveillance on the address in question.

26 b B. It appears from the Book of Evidence that the Peace Commissioner considered that he was satisfied from the information furnished by Garda O'Connell and from the garda's answers to questions which he, the Peace Commissioner, had put to him, that there were reasonable grounds for believing that cocaine was to be found at the address in question and he therefore issued a search warrant, signed by him, on the 19^th January, 2008.

27 c C. Garda O'Connell having secured the search warrant, attended at the premises in question in the evening of the 19^th January, 2008, and the Book of Evidence records that he stated as follows:

"I knocked on the door and it was answered by a female. I identified myself as a member of An Garda Siochana to the female and explained I was in possession of a search warrant issued pursuant to s.26 of the Misuse of Drugs Act, 1977/1984, and that I intended to search the premises. I then explained in ordinary English,...