DPP v McDermott

• Jurisdiction: Ireland
• Judge: Blayney J.
• Judgment Date: 15 February 1993
• Neutral Citation: 2003 WJSC-CC 4075
• Docket Number: 7/92
• Court: Circuit Court
• Date: 15 February 1993

DPP v. MCDERMOTT

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

v.

JOHN McDERMOTT

Applicant

2003 WJSC-CC 4075

7/92

THE COURT OF CRIMINAL APPEAL

Citations:

COURTS OF JUSTICE ACT 1928

Blayney J.

1 This is an application for leave to appeal by the applicant, John McDermott, who was found guilty by a jury on three counts.

2 1. Aggravated burglary for which he was given a sentence of ten years imprisonment.

3 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.

4 3. Assault with intent to rob for which he was given a sentence of six years imprisonment.

5 All three sentences to run concurrently.

6 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.

7 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.

8 There was nothing in any way unlawful or illegal or in breach of the constitutional rights of either Mrs. McDermott or of the accused in what happened.

9 Miss Lacey submits also that there was some relevance to be attached to the fact that she says that Mrs. McDermott was under a misapprehension that the reason the jacket was required was because the accused required a change of clothes. It seems to the Court that it does not matter if she had been under that misapprehension. The position on the facts is that the gardai did not contribute to that misapprehension. They simply asked for the jacket and they asked for a change of clothes which were given to them. In view of the Court it was not necessary that the gardai should go further than they did and explain to Mrs. McDermott the reason why they required the particular jacket. Miss Lacey referred us to a code of practice which had now been adopted in England. It seems to the Court that while it may be of value in making a submission to refer to it quite clearly this Court is not bound by it and accordingly, while as I say it may be of assistance in supporting a submission it is not something by which we are bound and accordingly, it is not something to which we are obliged to have regard. In so far as the submission based on the first, second and third grounds are concerned, these submissions are rejected.

10 I propose to take the next two grounds together. The first one is ground No. 4 - the learned trial judge erred in law in refusing to discharge the jury at a time when the jury had been improperly informed of the statement of admission of guilt by the co-accused in the case. The other ground...