DPP v McMahon

• Jurisdiction: Ireland
• Judge: FINLAY C.J.,McCARTHY J.
• Judgment Date: 01 January 1987
• Neutral Citation: 1986 WJSC-SC 540
• Court: Supreme Court
• Docket Number: [S.C. No. 268 of 1985]
• Date: 01 January 1987

1986 WJSC-SC 540

THE SUPREME COURT

Finlay C.J.

Walsh J.

Henchy J.

Hederman J.

McCarthy J.

268/85

DPP v. MCMAHON

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

v.

PETER McMAHON

THE DIRECTOR OF PUBLIC PROSECUTIONS

v.

SEAMUS McMEEL

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

v.

JAMES WRIGHT

Citations:

AG V O'BRIEN 1965 IR 142

BEER HOUSES (IRL) ACT 1864

COURTS OF JUSTICE ACT 1947 S16

DPP, PEOPLE V LAWLESS UNREP CCA 28.11.85 1985/7/2010

GAMING & LOTTERIES ACT 1956 S38

GAMING & LOTTERIES ACT 1956 S39

GAMING & LOTTERIES ACT 1956 S9

GAMING & LOTTERIES ACT 1956 S9(4)

INTOXICATING LIQUOR ACT 1927 S22

INTOXICATING LIQUOR ACT 1927 S24

LICENSING ACT (IRL) 1874 S23

SPIRITS (IRL) ACT 1854 S12

Synopsis:

INVITOR

Occupier

Invitation - Scope - Public house - Implied general invitation to public to enter - Invitation implied from circumstances and from nature of premises - Implication excluded where persons enter for unlawful purpose - Police in plain clothes entering to obtain evidence of illegal operation of gaming machines on premises - Police without statutory authority to enter - Implied invitation excluded by purpose of police visit - Police entering as trespassers - Gaming and Lotteries Act, 1956, ss.38, 39 - (268/85 - Supreme Court - 20/6/86) - [1986] IR 393 - [1987] ILRM 87

|Director of Public Prosecutions v. McMahon|

GAMING AND LOTTERIES

Offence

Proof - Evidence - Admissibility - Procurement - Unlawful means - Trespass by police - Police in plain clothes entering licensed premises of defendant - Entry made for purpose of obtaining evidence of commission by defendant of offence contrary to Act of 1956 - Police without statutory authority to enter licensed premises for that purpose - Implied invitation of publican to public - Implication excluded by purpose of police visit - Evidence of police obtained unlawfully - No deliberate violation of constitutional rights of defendant - Held that evidence of police so procured was admissible unless judge, exercising his discretion, decided to exclude it - Gaming and Lotteries Act, 1956, ss.38, 39 - (268/85 - Supreme Court - 20/6/86) [1986] IR 393 - [1987] ILRM 87

|Director of Public Prosecutions v. McMahon|

REAL PROPERTY

Occupier

Invitation - Implication from circumstances - Licensed premises - Publican's general implied invitation to public - Police entering premises without statutory authority - Entry for purpose of obtaining evidence of commission by defendant of offence contrary to Act of 1956 - Implication of invitation excluded by purpose of police visit - Police entering as trespassers - Gaming and Lotteries Act, 1956, ss.38, 39 - (268/85 - Supreme Court - 20/6/86) - [1986] IR 393 - [1987] ILRM 87

|Director of Public Prosecutions v. McMahon|

EVIDENCE

Admissibility

Procurement - Unlawful means - Trespass by police - Police in plain clothes entering licensed premises of defendant - Entry made for purpose of obtaining evidence of commission by defendant of offence contrary to Act of 1956 - Police without statutory authority to enter licensed premises for that purpose - Conviction of defendant for offence contrary to Act of 1956 - Conviction based on evidence so obtained - Appeal by defendant to Circuit Court - Implied invitation of publican to public - Implication excluded by purpose of police visit - No deliberate violation of constitutional rights of defendant - Consultative case stated by Circuit Court judge - Held that evidence of police so procured was admissible unless judge, exercising his discretion, decided to exclude it - Majority decision in ~The People (Attorney General) v. O'Brien~ [1965] I.R. 142 approved - Gaming and Lotteries Act, 1956, ss.38, 39 - (268/85 - Supreme Court - 20/6/86) - [1986] IR 393 - [1987] ILRM 87

|Director of Public Prosecutions v. McMahon|

GARDA SIOCHANA

Powers

Private property - Entry - Authority - Absence of statutory authority - Licensed premises - Police in plain clothes - Entry for purpose of discovering evidence of commission of offence contrary to Act of 1956 - Implied invitation by publican to public - Implication excluded by purpose of police visit - Police entering as trespassers - Conviction based on police evidence - Evidence procured unlawfully - Evidence admissible unless trial judge, in exercise of his discretion, decides to exclude it - No deliberate violation of constitutional rights of defendant - Gaming and Lotteries Act, 1956, ss.38, 39 - (268/85 - Supreme Court - 20/6/86) - [1986] IR 393 - [1987] ILRM 87

|Director of Public Prosecutions v. McMahon|

1 JUDGMENT delivered on the 20th day of June 1986by FINLAY C.J. [Walsh J., Henchy J., Hederman J., conc.]

2 This is a Case Stated by Judge David Sheehy, Circuit Court Judge for the Northern Circuit, pursuant to Section 16 of the Courts of Justice Act 1947.

3 Each of the three above-named Defendants was the owner of a licensed premises situate in the County of Monaghan and each was charged before the District Court in Monaghan with offences contrary to the provisions of the Gaming andLotteries" Act 1956, as amended. Each was convicted and fined in respect of the said offences and appealed by way of re-hearing against both those convictions and fines to the learned Circuit Court Judge. Upon the hearing before the Circuit Court, evidence was given by a Ban Garda Berry that she and another member of the Garda, dressed in plain clothes, entered successively each of the licensed premises the property of the Defendants, for the specific purpose of ascertaining whether offences against the Gaming and Lotteries" Act 1956were being committed within them, and made certain observations while present in the premises, leading to evidence which prima facie established the commission of offences.

4 The witness further gave evidence that neither she nor her companion identified themselves as members of the Garda Siochana, stated what their purpose was nor did they obtain any search warrant for the premises, pursuant to the provisions of Section 39 of the Gaming andLotteries" Act 1956(the Act of 1956).

5 At the conclusion of the evidence for the Prosecutionobjection was made by Counsel on behalf of each of the Defendants (the cases being tried together) that the evidence with regard to the commission of the offences was inadmissible as it had been obtained by illegal means in the absence of a search warrant and that accordingly the Defendants were entitled to a dismissal of the charges against them. Having heard arguments with regard to this issue, the learned Circuit Court Judge at the request of the DPP postponed his judgment and stated this Case, raising the following questions for the opinion of the Supreme Court.

6 2 "1. Must a member of the Garda Siochana before entering licensed premises for the purpose of detecting possible offences under the Gaming and Lotteries" Act 1956have in his possession a search warrant issued under Section 39 of the Gaming and Lotteries" Act 1956?

7 2. Is evidence obtained by a member of the Garda Siochana whilst on the premises for the purposes of detecting possible offences under the Gaming and Lotteries" Act 1956, without having a search warrant issued under Section 39 of the said Act, admissible in evidence?

8 Section 38 of the Act of 1956 provides as follows:

"A member of the Garda Siochana may at all reasonabletimes enter and have free access to any amusement hall, fun fair, circus, travelling show, carnival, bazaar, sports meeting, local festival, exhibition, or other like event in which gaming or a lottery is or is believed to be carried on."

9 Section 39 of the Act of 1956 provides as follows:

10 2 "(1) Where a Justice of the District Court is satisfied on the information on oath of a member of the Garda Siochana not below the rank of inspector that there is reasonable ground for supposing that at any place or premises an offence against this Act has been is being or is about to be committed, the Justice may issue a search warrant under this Section.

11 (2) The search warrant shall authorise a named member of the Garda Siochana, not below the rank of inspector, accompanied by such other members of the Garda Siochana as that member thinks proper, to enter the place or premises at any time within forty-eight hours after the issue of the warrant if need be by force to inspect the place or premises and any books and documents found there and to take the name and address of any person and seize any gaming instrument and any books and documents appearing to relate to gaming or lotteries found there."

12 Quite clearly a licensed premises does not come within the provisions of Section 38. A consideration of the terms of both these Sections furthermore leads, in my view, to theinescapable conclusion that, in respect of any place or premises which does not come within the provisions of Section 38, a member of the Garda Siochana cannot except with the agreement or by the invitation of the owner thereof enter such premises for the purpose of ascertaining whether an offence against the Act of 1956 is being committed or not unless he be not below the rank of inspector and have already within forty-eight hours obtained a search warrant pursuant to Section 39.

13 It was correctly conceded on behalf of the Director of Public Prosecutions that on the findings of fact made by the learned Circuit Court Judge in this case, namely, to the effect that the purpose of the Gardai in entering each of the premises was solely to investigate the possibility of the commission of offences against...