DPP v Owens
|O'Flaherty J.,Mr. Justice Barrington
|16 February 1999
| IESC 107
|16 February 1999
|[S.C. No. 101 of 1998]
 IESC 107
THE SUPREME COURT
OFFENCES AGAINST THE PERSON ACT 1861 S47
LARCENY ACT 1916 S23
DPP, PEOPLE V BYRNE
DAVIS V RUSSELL 1829 BING 354
AG, PEOPLE V HOGAN 1 FREWEN 360
DPP, PEOPLE V MCCANN
Search warrant; admissibility; defendant arrested following search of his dwelling; search warrant issued by peace commissioner; peace commissioner unable to give evidence at trial; trial judge directed an acquittal on the basis that the absence of evidence to establish validity of search warrant invalidated subsequent arrest and detention; whether trial judge properly exercised his judicial discretion in holding that peace commissioner must give evidence to prove his state of mind at time of issuing the warrant
Held: Peace Commissioner must give evidence in person to establish his state of mind at time of issue of search warrant
DPP v. Owens - Supreme Court: Hamilton C.J., O'Flaherty J., Denham J., Barrington J., Keane J. - 16/02/1999 -
A search warrant is a document which may affect constitutional rights; it does not speak for itself in a criminal trial and a peace commissioner must give evidence to prove his state of mind at the time of issue of the warrant. Since this was the only question posed, the Supreme Court could not consider the validity of the arrest or any other issues raised in the trial. The Supreme Court so held in reply to a case stated from the Circuit Court.
The arrest did not rely on the search warrant for validity; the Gardai had power to arrest if they have a reasonable suspicion that an arrestable offence has been committed. The accused's arrest, detention and subsequent admission were not invalid. (per O'Flaherty J. obiter dictum).
JUDGMENT of Mr. Justice Barringtondelivered the 16th day of February, 1999.
This case concerns a net point of law referred to the Supreme Court pursuant to the provisions of the Criminal Procedure Act, 1967, by the Director of Public Prosecutions, after consultation with his Honour Judge Joseph Matthews, a Judge assigned to the Circuit Criminal Court for the County of Dublin.
The background to the reference is as follows. The trial of the above-named accused David Owens took place on the 10th day of November, 1997, before Judge Joseph Matthews sitting as the Judge assigned to the Circuit Criminal Court for the County of Dublin with a jury. The accused was arraigned and, having pleaded not guilty a jury was empanelled to try the counts on the indictment. These consisted of three counts-assault occasioning actual bodily harm contrary to Section 47 of the Offences against the Person Act, 1861; having an article in a public area intending unlawfully to cause injury, incapacitate or intimidate contrary to Section 9 (5) of the Firearms and Offensive Weapons Act, 1990; and robbery contrary to Section 23 of the Larceny Act, 1916, as inserted by Section 5 of the Criminal Law (Jurisdiction) Act, 1976.
The offences were alleged to have been committed on the 21st October, 1994 (some three years before the trial). On the 9th November, 1994 Garda Vincent Byrne, acting on confidential information, received by a colleague, that some of the proceeds of the robbery might be found at 55 Doon Court, Poppintree, obtained from Mr. Fowler, a Peace Commissioner, a warrant to search the premises. Later on the same night, at about 1.10 a.m., Garda Byrne accompanied by three other Garda officers went to the premises 55 Doon Court, Poppintree. The door was opened by the accused David Owens. The search warrant was produced and the Gardai carried out a search of the premises but found nothing incriminating. Nevertheless Garda Byrne, on the basis of confidential information which he had received and of statements in his possession, believed that David Owens was responsible for the robbery and, after caution, arrested him on the premises and conveyed him to Ballymun Garda Station where he was detained pursuant to the provisions of Section 4 of the Criminal Justice Act, 1984. While in detention he made an incriminating statement which was the principal evidence to be proffered by the prosecution against him at histrial.
At the commencement of the trial the defence indicated that they were challenging the search warrant and putting the prosecution on formal proof of it. Their line of argument, which appears to have been accepted by the trialJudge, was that if the search warrant was invalid the entry by the police officers into the premises was illegal and amounted to an unconstitutional invasion of the accused's dwellinghouse; that the arrest was therefore invalid and also the detention of the accused pursuant to Section 4 of the Criminal Justice Act, 1984was also invalid and any statement made by him, while in unlawful detention was inadmissible in evidence against him.
At the commencement of the trial, the defence having challenged the validity of the search warrant, the learned trial Judge agreed to try a preliminary issue relating to the search warrant in the absence of thejury.
The prosecution's problem was that the Peace Commissioner, Mr. Peter Fowler, was eighty-five years old at the date of the issue of the search warrant, and, at the time of the trial - some three years later - was too ill to come to Court to explain his state of his mind at the time he issued the search warrant. In these circumstances the learned trial Judge felt that he was bound by the decision in The People [DPP] v. Byrne  ILRM p. 613. He, accordingly, held that the Peace Commissioner's signature was not sufficient to establish the validity of the warrant and that the Peace Commissioner must be present in person to prove his state of mind and to be available, if necessary, for cross-examination by the defence.
The learned trial Judge ruled that there was no evidence to establish the validity of the search warrant. He thereupon ruled that the subsequent arrest and detention were invalid and unconstitutional and directed the jury to find the accused not guilty.
In these circumstances the Director of Public Prosecutions, after consultation with the trial Judge has referred to us for decision the following question-
"The question of law hereby referred to the Supreme Court for determination is whether the learned trial Judge properly exercised his judicial discretion in holding that a peace commissioner must give evidence to prove his state of mind at the time of issuing thewarrant".
As previously indicated the case by which the learned trial Judge felt bound was The People [Director of Public Prosecutions] v. Byrne  ILRM 613. In that case the accused had been arrested in pursuance of Section 30 of the Offences against the State Act, 1939, and his initial period of detention had been extended for a further four hours by a Garda...
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