DPP v McCutcheon

• Jurisdiction: Ireland
• Judge: Gannon J.
• Judgment Date: 01 January 1986
• Neutral Citation: 1985 WJSC-HC 2019
• Docket Number: No. 389 S.S./1985
• Court: High Court
• Date: 01 January 1986

1985 WJSC-HC 2019

THE HIGH COURT

No. 389 S.S./1985

No. 390 S.S./1985

DPP v. MCCUTCHEON

IN THE MATTER OF THE SUMMARY JURISDICTION ACT 1857

AND IN THE MATTER OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961

AND IN THE MATTER OF A PROSECUTION ENTITLED:

THE DIRECTOR OF PUBLIC PROSECUTIONS

Complainant

.v.

OONAGH McCUTCHEON

Defendant

AND IN THE MATTER OF A PROSECUTION ENTITLED:

THE DIRECTOR OF PUBLIC PROSECUTIONS

(Complainant)

.v.

EILEEN McMULLEN

(Defendant)

CASES STATED

DIRECTOR OF PUBLIC PROSECUTIONS

Appellant

and

OONAGH McCUTCHEON

Respondent

and

DIRECTOR OF PUBLIC PROSECUTIONS

Appellant

and

EILEEN McMULLEN

Respondent

Citations:

AG, PEOPLE V O'BRIEN 1965 IR 142

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51

HEALTH (FAMILY PLANNING) ACT 1979 S4

HEALTH (FAMILY PLANNING) ACT 1979 S4(4)

HEALTH ACT 1947 S96(1)

KURUMA'S CASE 1955 AC 197

LAWRIE'S CASE 1950 SC (J) 19

R V AMEER & LUCAS 1977 CRIM LR 104

R V SANG 1980 AC 402

SUMMARY JURISDICTION ACT 1857

SUMMARY JURISDICTION ACT 1857 S52

Synopsis:

CRIMINAL LAW

Evidence

Admissibility - Procurement - Unlawful means - Summary trial - Defendant charged with supplying contraceptives in manner contrary to that authorised by statue - Supply sought by policeman in civilian clothes - Allegation that policeman entered defendant's premises unlawfully - Objection taken to evidence of that witness being given - District Justice ruling against admission of that evidence before it was given - Complaint dismissed - Held that ruling should have been made after evidence given and that such evidence was admissible - (1985 No.389 SS - Gannon J. - 1/11/85).

|Director of Public Prosecutions v. McCutcheon|

EVIDENCE

Procurement

Unlawful means - Agent provacateur - Summary trial - Defendant charged with supplying contraceptives in manner contrary to authorised by statue - Supply sought by policeman in civilian clothes - Allegation that policeman entered defendant's premises unlawfully - Objection taken to evidence of that witness being given - District Justice ruling against admission of that evidence before it was given - Complaint dismissed - held that ruling should have been made after evidence given and that such evidence was admissible - (1985 No.389 SS Gannon J. - 1/11/85).

|Director of Public Prosecutions v. McCutcheon|

1 Judgment of Gannon J. delivered the 1st day of November 1985

2 Because these two respondents appeared on the same day before the same District Justice each charged with the like offence alleged to have been committed on the same date at the same time and place the District Justice entered upon the hearing of both complaints as a single hearing. Having heard some evidence of a Garda witness, upon objection made by Counsel for the first respondent to the admissibility of the evidence, the District Justice ruled the evidence of that witness to be inadmissible and thereupon, no other witness being offered, dismissed the complaint against and acquitted both respondents. Following request by the Director of Public Prosecutions he has stated a case for the opinion of this court pursuant to the Summary Jurisdiction Act 1857 in each case.

3 The case stated is a form of appeal against his decision but, as that decision did not follow a full hearing on all the facts and was a ruling that evidence was inadmissible, the questions submitted do not involve any inquiry into the charge made in the District Court Summons in either case. As the form of the case stated is, and the questions for the opinion of this Court are, the same in each case both have been heard at a single hearing in this Court, each respondent being separately represented.

4 The complaint on the summons for hearing by the District Justice on the 18th of September, 1984 against each respondent was that being a person who on the 9th of May, 1984, supplied contraceptives to Sergeant John Lynn otherwise than by way of sale under and in accordance with Section 4 of the Health (Family Planning) Act, 1979, she was guilty of an offence created by subsection (4) of Section 4 of that Act. The facts set out in each case stated as being proved or admitted relate only to matters which preceded in time any supplying by either respondent of any contraceptives and no evidence was offered or considered relating to any offence alleged to have been committed previous to the 9th of May, 1984. Accordingly it was agreed by all parties in this Court at the commencement of and for the purpose of this hearing that the references in the cases stated to Sergeant Lynn going to the premises referred to therein to investigate or for the purpose of investigating alleged breaches of the Health Acts require clarification. Counsel for the Director of Public Prosecutions and for the respondent in each case agreed that such references: (a) do not mean and are not intended to convey that the Sergeant had been informed of an offence which had been committed and which he was about to investigate: (b) do mean and are intended to convey that the Sergeant, suspecting that if he sought to purchase contraceptives they would be supplied to him otherwise than in accordance with Section 4 of the Health (Family Planning) Act, 1979and thus an offence would be likely to be committed, entered the premises to offer to make such purchase.

5 The facts proved or admitted additional to those agreed in the foregoing clarification before the District Justice made his ruling are as follows:-

6 Sergeant John Lynn is a member of the Garda Síochána. On the 9th May, 1984 he went to the premises 78a/79 Lower George's Street, Dun Laoghaire described as the Family Planning Services Limited Clinic. He was not wearing uniform but, in accordance with instructions of his superiors, he was in plain clothes. The door was open, he had no difficulty in entering and when he did enter no one asked him to leave. He saw each of the respondents and spoke to each of them. Following the intervention of counsel for the respondent no further evidence was heard.

7 The objection made by counsel for the respondent was that unless an order made by the Minister for Health pursuant to Section 96 (1) of the Health Act 1947was produced authorising the Garda Sergeant to enter the premises all evidence of Sergeant Lynn relating to conversations or events during his presence on the premises was inadmissible and should be excluded. Counsel for the Director of Public Prosecutions admitted that no such order was in force on the 9th of May, 1984 and informed the District Justice that he had no other evidence than that of Sergeant Lynn in support of the charge. Following submissions by both counsel the District Justice ruled that any evidence by the Sergeant as to what transpired in the premises during his visit was inadmissible and dismissed the charge in each case.

8 The Director of Public Prosecutions chose by way of appeal to request in each case a case stated pursuant to section 52 of the Summary Jurisdiction Act 1857 as extended by Section 51 of the Courts (Supplemental Provisions) Act 1961. The District Justice accordingly submitted these two cases stated and concludes each case stated as follows:-

"7. The opinion of the court is sought as to whether, upon the above statement of facts, I was correct in holdings:-"

(a) that, no order under Section 96 (1) of the Health Act 1947being in force en the 9th day of May, 1984, members of the Garda Síochána had no lawful authority to enter onto the premises 78a/79 Lower George's Street, for the purposes of investigating alleged breaches of the Health Acts;

(b) that the evidence obtained by any member of the Garda Síochána during such a visit to the said premises; was inadmissible;

(c) that the aforesaid charge against the respondent should therefore be dismissed."

9 The District Justice sets out in each case stated how and why he made the rulings and decision and these are set out in the case stated in which the respondent is Eileen McMullen in paragraphs 5 and 6 as follows:-

10 2 "5. I enquired of Mr. Danaher as to whether he had any other evidence apart from that obtained by the witness during his aforesaid visit to the said premises and Mr. Danaher replied that the only evidence for the appellant was that the defendant had committed the offence charged by unlawfully selling contraceptives to the witness. I indicated that I agreed with the defence submission and was ruling inadmissible any evidence by the Sergeant as to what transpired in the said premises during his aforesaid visit. Mr. Danaher said that he had no other evidence to call and I dismissed the charge against Miss McCutcheon.

11 6. It was conceded on behalf of the appellant that the only evidence against the respondent in this case would consist of the evidence of members of the Garda Síochána acting as such as to what transpired on their visiting the premises 78a/79 Lower George's Street, Dun Laoghaire for the purposes of investigating alleged breaches of the Health Acts on the date when no order under Section 96 (1) of the Health Act 1947was in force. I therefore dismissed the charge against the respondent in these proceedings also."

12 The argument of counsel for the defence which the District Justice acceded to and adopted is stated as follows in paragraphs 4 and 5 of the case stated:-

"Counsel for the Defence objected to any evidence being adduced concerning either what the respondent said or did in...