DPP v Przemyslaw Jakubowski

• Jurisdiction: Ireland
• Judge: O”Donnell J.
• Judgment Date: 31 July 2014
• Neutral Citation: [2014] IECCA 28
• Court: Court of Criminal Appeal
• Docket Number: CCA No. 156/11
• Date: 31 July 2014

Between/

The People at the Suit of the Director of Public Prosecutions

And

Przemyslaw Jakubowski

Appellant

[2014] IECCA 28

CCA No. 156/11

THE COURT OF CRIMINAL APPEAL

Assault – Rape – Search Warrant – Legality – Evidence – Practice and Procedures – Unauthorised Search – Unlawful Entry – Interpretation – Rules – Legislation

Facts: On the 9 ^th August a young woman had occasion to use a public bathroom in a rural town. When she was drying her hands she was assaulted from behind by a male assailant. She was raped and held against her will. Her assailant threatened to kill her. The victim noticed unusual aspects of her assailant including clothing and jewellery which he wore. Specifically, she noticed an unopened packet of Marie Claire women”s tights that were visible and an unopened beer can which fell out of the assailant”s pocket. Once freed, the Gardaí was called and an investigation began. The scene of the crime was examined and an empty beer can of the same brand as the can dropped and retrieved by the assailant was recovered. The packaging for a pair of tights was also found. CCTV footage was obtained from a local shop in which a man was observed purchasing a can of lager and a packet of tights. This individual was identified as the appellant and his address was ascertained. A Garda Sergeant sought and obtained a search warrant for that premises under s.10(1) of the Criminal Justice (Miscellaneous Provisions) Act 1997, as substituted by s.6(1)(a) of the Criminal Justice Act 2006 (‘the 1997 Act’ and ‘the 2006 Act’ respectively). A written information was produced and sworn on the same day and signed by the Garda Sergeant and the Judge of the District Court. A search of the appellant”s home was carried out pursuant to the search warrant. Having gained access to the appellant”s home on foot of the warrant, the Gardaí observed that the appellant was wearing items on his wrist that corresponded to the description provided by the victim. He was arrested and detained pursuant to statute. During the search of his home a number of items of ladies” underwear were seized including an item of aqua blue coloured underwear, yellow underwear and a peach slip. Forensic analysis determined the presence of a DNA profile on the aqua blue and yellow underwear and on the peach slip that matched the profile of the victim. A similar profile was found in fingernail scrapings taken from the applicant while in custody. The applicant”s fingerprints were also found on the empty beer can that was found in the public toilet. He was subsequently arrested and convicted and sentenced to 15 years imprisonment. The central issue in this case concerned the validity of the search warrant issued on the 9 ^th March 2011. It was argued that if the appellant was successful in establishing the invalidity of the warrant, and the inadmissibility of any consequent evidence, it would at a minimum be necessary to allow the appeal and direct a retrial.

Held by Justice O”Donnell that the warrant under consideration accorded with the terms of s.10(1) of the 1997 Act. Taking into consideration s.6 of the Criminal Justice Act 2006, Justice O”Donnell further reasoned that the form of the warrant followed the 1997 Act (evidence of oath) rather than that of the 2006 substitution, the information on oath, at least in respects of the materials on which a warrant may be granted. In addition to the foregoing, Justice O”Donnell stated that District Court Rules had been made regulating applications for the grant of search warrants including those pursuant to the 1997 Act as substituted by the 2006 Act. Order 34 Rule 17 of the District Court (Search Warrant) Rules 2008 was introduced by Statutory Instrument 322/2008. That rule stated that an application by a member of the Garda Síochána not below the rank of sergeant for the issue of a warrant pursuant to section 10(1) of the Criminal Justice (Miscellaneous Provisions) Act 1997 (as substituted by section 6(1)(a) of the Criminal Justice Act 2006 ) may be made to the Judge of the District Court assigned to the District Court District wherein the place in respect of which the warrant is sought is situated. Such application shall be by the information on oath and in writing of such member in the Form 34.37, Schedule B. A warrant issued on foot of such information shall be in the Form 34.38, Schedule B. Upon reading this rule, it was apparent to the court that the warrant did not conform to the form prescribed by the District Court Rules. The warrant used the language of the 1997 Act prior to its substitution. The question, thus, facing the court was what was the consequence of this, both for the validity of the warrant, and the subsequent admission of the evidence on foot of that warrant. It was argued by the appellant that the changed effected in 2006 meant that written information was required. The warrant did not demonstrate that any such written information was provided. Accordingly, it was argued to be invalid on that ground alone. The second argument was that even if written information was not required by statute, it was required by the District Court Rules, and the form prescribed by those rules, and accordingly, the warrant, was invalid on this separate ground. In applying the case of Simple Imports, Justice O”Donnell stated that if the warrant stated that it was being issued on a basis which was not justified by statute creating the power, the invalidity of the warrant cannot be cured by evidence that there was in fact before the issuing authority evidence which entitled him to issue the warrant within the terms of the statute. The appellant argued that the warrant stated that it had been issued having received “evidence on oath”. The warrant did not state, as the 2006 Act required, that the District Court Judge received information on oath. Arguing that information on oath comprehended a written document, the appellant contended that the warrant, in using the phrase ‘evidence on oath’, either showed that no such written information was received, or at a minimum did not demonstrate that it was. On the appellant”s argument, evidence on oath was a broader term than information on oath according to the court. Thus, according to Justice O”Donnell a statement that a court had received evidence on oath did not demonstrate non-compliance with a supposed obligation to receive that evidence in the form of a sworn written information. If the warrant did not demonstrate compliance but did not show non-compliance Justice O”Donnell stated that it may be argued that it was appropriate to proceed on the basis that the majority in Rossminster did, that it was to be presumed that the statutory preconditions were complied with, at least until the contrary is shown, or alternatively to consider whether, on the evidence, the court properly exercised its jurisdiction by receiving a written information on oath (all the time assuming for the purposes of this aspect of the argument that that is what the statute required). Thus, for the reasons set out above, it was not necessary to resolve that matter. In addressing the appellant”s contention that the evidence ought to have been excluded because the warrant did not comply either with the terms of the relevant District Court (Search Warrant) Rules 2008 or indeed with the form prescribed for such warrants by those rules, Justice O”Donnell accepted that the warrant did not accord with the District Court Rules or the form prescribed in those rules. The appellant argued that the provisions of the rules were jurisdictional requirements. He argued that the warrant was required to show jurisdiction on its face which in this case would have meant that the warrant should record that the information provided was in writing. Secondly, it was argued that even if the requirements of the rules could not be considered jurisdictional, they were still requirements made by the law and accordingly any entry on to premises pursuant to a warrant which was not in the form required by the rules was not an entry in accordance with law. Consequently, any search would have been in breach of the constitutional rights of the accused, and any evidence obtained should be excluded since it was not suggested that there are any extraordinary or excusing circumstances justifying such breach. Applying The State (O”Flaherty) v. O”Floinn [1954] I.R. 295, Justice O”Donnell reasoned that the jurisdiction to issue a search warrant was established by primary legislation (in this case s.10 of the 1997 Act as amended) which also set the limits of such jurisdiction. Thus, with no jurisdictional issue to consider, Justice O”Donnell turned his attention to the issue of whether the entry to the dwelling house was not in accordance with law, and therefore in breach of the rights of the individual. Applying Order 12 Rule 23 of the District Court Rules 1997 and s.12 of the Interpretation Act 2005, it was determined that a failure to comply with the rules did not automatically invalidate the proceedings. Consequently, it was the opinion of the Court that these provisions applied and that the search warrant was not invalid. Accordingly entry was lawful, and the trial court was right not to exclude the evidence obtained on foot of the search warrant.

O”Donnell J.

Judgment of the Court delivered on the 31st of July 2014, by O”Donnell J.

1 1. On the 9th of March 2011 a young woman had occasion to use a public bathroom in a rural town. When she was drying her hands she was assaulted from behind by a male assailant. She was subjected to a horrifying ordeal in which she was viciously attacked in a cubicle in the public toilet, held against her will for approximately 40 minutes, threatened repeatedly and subjected to rape, vaginal, oral and anal. She pleaded with her assailant to release...