DPP v McDermott
2003 WJSC-CC 4075
THE COURT OF CRIMINAL APPEAL
COURTS OF JUSTICE ACT 1928
This is an application for leave to appeal by the applicant, John McDermott, who was found guilty by a jury on three counts.
1. Aggravated burglary for which he was given a sentence of ten years imprisonment.
2. Possession of an article made or adapted for use in the course of or in connection with larceny for which he was given a sentence of six years imprisonment.
3. Assault with intent to rob for which he was given a sentence of six years imprisonment.
All three sentences to run concurrently.
He appeals his conviction on a number of grounds. There were eight grounds in all. Two of the grounds were abandoned and in fact the others were grouped together so really there were three grounds. I propose to start by dealing with grounds 1, 2 and 3, which essentially were grounds concerned with the obtaining by the gardai of the jacket, which the accused had been wearing the previous evening when arrested. These grounds in effect are that the obtaining of that jacket by Detective Garda Anthony Whelan and Detective Sergeant Thomas Gallagher was done in a manner which was unconstitutional or illegal and accordingly that any evidence obtained subsequently by using this jacket would not be admissible.
Miss Lacey's main submission in this regard was that the Detective Garda and Detective Sergeant should have obtained a warrant to search Mr. McDermott's house and that would have been the correct way of doing it. She said that because they had not done this then they had acted in a manner which she said was both unconstitutional and illegal. The Court does not accept this submission. The facts establish clearly that the Detective Garda and Detective Sergeant asked when they went to Mrs. McDermott's house if they could come in and Mrs. McDermott allowed them to come in — the situation being that the accused, John McDermott, was living there with his mother so it was his house and it was her house. Then they asked if they could have the jacket that Mr. McDermott had been wearing the previous night. Mrs. McDermott went and got it and gave it to them. They also asked for a change of clothes. On those facts the situation was that they were in Mrs. McDermott's house with her consent and they obtained the accused's jacket again with her consent when she handed it over to them.
There was nothing in any way unlawful or illegal or in breach of the constitutional rights of either Mrs. McDermott or of the accused...
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