DPP v Quirke

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton
• Judgment Date: 20 March 2023
• Neutral Citation: [2023] IESC 5
• Court: Supreme Court
• Docket Number: Supreme Court appeal number: S:AP:IE:2022:000005 [2021] IECA 306 Central Criminal Court Bill CCDP0113/2017

Between

The People (DPP)

Prosecutor/Respondent

and

Patrick Quirke

Accused/Appellant

with

The Attorney General

Intervenor

with

The Irish Human Rights Commission

Amicus Curiae

[2023] IESC 5

O'Donnell CJ

Dunne J

Charleton J

O'Malley J

Baker J

Woulfe J

Murray J

Supreme Court appeal number: S:AP:IE:2022:000005

Court of Appeal record number: 86/2019

[2021] IECA 306

Central Criminal Court Bill CCDP0113/2017

An Chúirt Uachtarach

The Supreme Court

Conviction – Murder – Search warrant – Appellant seeking to appeal against conviction – Whether the search warrant granted by the District Court judge was defective

Facts: The appellant, Mr Quirke, was tried before a jury in the Central Criminal Court. After a lengthy trial of 71 days, he was convicted of murder on 1 May 2019. He appealed to the Court of Appeal against that conviction. On 16 November 2021, the Court of Appeal dismissed the appeal: [2021] IECA 306. By a determination dated 26 April 2022, leave to appeal to the Supreme Court was granted: [2022] IESCDET 51. It was contended for the appellant, firstly, that the search warrant granted by the District Court judge was defective as the gardaí failed to make any reference in seeking the warrant to an intention to seize computers in the appellant’s home and only referred to “any other relevant evidence”; thereby, on that argument, precluding the District Court judge from conducting a proportionality analysis between a right to privacy in that respect and the community’s right to investigate and prosecute crimes. The second contention concerned the extent of the discretion of the respondent, the Director of Public Prosecutions, as to what witnesses are called at trial, with particular reference to expert witnesses. The dispute in that regard arose because the prosecution did not call the evidence of Dr Curtis, the Deputy State Pathologist, which the appellant alleged contained evidence crucial to the defence case. The defence argument was that the respondent did not exercise her discretion to call or not call particular witnesses appropriately, and that this decision had a prejudicial effect on the jury’s consideration of the evidence given at trial.

Held by the Court that the difference as between the physical location where the computer might be found and the digital space to which it was a portal required the gardaí to enable judicial intervention to permit authorisation into that space through bringing the attention of the judge issuing the search warrant to their intention to search outside the physical location authorised by seeking authorisation to seize computer devices and justifying in the sworn information the reasonable suspicion whereby such a seizure might reasonably be believed to be necessary. The Court held that, for this search, there was a valid warrant and there was also ample justification presented in the information for searching the physical space (all that was specified). The Court held that this justification, on a reasonable basis, was not presented for the search for computer devices and for seizing them for the purpose of entering the digital space; that was not even mentioned. Hence, the Court held that the search remained lawful as did the seizure of all of the items of physical evidence believed to constitute reasonable potential lines for further enquiry. The Court held that what was not authorised by the judge was seizure of a computer for search outside of that physical location. The Court held that had the judicial mind been so directed, the seizure of the computer would have been lawful since then, as required by Damache v DPP [2012] IESC 11, there would have been the intervention of judicial authorisation whereby entry by the gardaí though the computer into the digital space would have been authorised. Hence, the Court held that without directing the mind of the judge to that virtual world, the seizure of the computer was unauthorised.

The Court declared the seizure of computer devices from the appellant’s home to have been unlawful in the context of a valid warrant and otherwise lawful search. The Court held that further argument was required as to any consequences which may flow from the ruling and as to the manner and jurisdiction for the proper decision thereon.

Declaration made.

Judgment of Mr Justice Peter Charleton delivered on Monday 20 March 2023

1 Bobby Ryan, a busy man of wide interests, went missing on 3 June 2011. There was no apparent reason for him to stage his disappearance. With no kind of message or call from him, family and friends became alarmed. Searches uncovered not a sign. On 30 April 2013, 22 months later, the accused Patrick Quirke notified the gardaí that he had found human remains in a tank on a farm he had been leasing for some years at Fawnagowan. These badly decomposed remains turned out to be the body of Bobby Ryan.

2 The prosecution case is that circumstantial evidence validly established at trial that Patrick Quirke had murdered the deceased. The accused was tried before a jury in the Central Criminal Court. After a lengthy trial of 71 days, he was convicted of murder on 1 May 2019.

Issues

3 The defence appeals this conviction on the basis that it was unsound because a computer and other digital devices taken from Patrick Quirke's home were not mentioned in the sworn information upon which Judge Elizabeth McGrath granted a search warrant to enter his home and to seize potential evidence. That warrant was granted on 13 May 2013, the search taking place on 17 May 2013. In the interval, meanwhile, the accused had attended and been interviewed at a garda station. He denied any involvement in the death of Bobby Ryan. Through forensic analysis of the computer hard drive, it emerged that the accused, subsequent to the disappearance of the deceased, had researched the decomposition of human remains. That interest was a strand in the prosecution case whereby circumstances were said to point to his guilt. These internet searches were proximate to other events that were argued at trial to make the accused's interest more than academic.

4 There is also a second point. The defence contends for possible unsoundness in the conviction on the basis of a theory from analysis of the much-decayed remains by a forensic pathologist which posited that the deceased may have died in a collision with a vehicle. At trial, the prosecution declined to lead that evidence, which they considered not at all plausible in the context of the injuries and the interpretation put forward of blunt force trauma causing death. Creedon J, the trial judge, did not exercise her prerogative to call the relevant witness to the collision hypothesis and so the defence opted to call evidence from the pathologist offering that possible opinion.

Appeal and leave to appeal to this Court

5 The accused appealed to the Court of Appeal on fifty-two diverse grounds, which were categorised into sixteen different topic sub-headings, as set out in the judgment of Birmingham P at paragraph [6] of his judgment of 16 November 2021, [2021] IECA 306, dismissing the appeal. By a determination dated 26 April 2022, [2022] IESCDET 51, leave to appeal to this Court was granted on the two limited grounds just mentioned:

The Court is of the opinion that this case does involve two matters of general public importance, first, regarding the extent of any requirement to identify what might be searched for when applying for a search warrant, and, second, regarding the extent of the discretion vested in the [Director of Public Prosecutions] as to what witnesses she calls at trial, with particular reference to expert witnesses. The Court notes that these issues may arise in other criminal trials in the future, and it would be in the public interest to obtain further clarity. In these circumstances it considers that the constitutional threshold specified in Article 34.5.3 of the Constitution is thereby satisfied.

6 The grounds of appeal are thus limited by that determination. It is contended for the accused, firstly, that the search warrant granted by the District Court judge was defective as the gardaí failed to make any reference in seeking the warrant to an intention to seize computers in the appellant's home and only referred to “any other relevant evidence”; thereby, on this argument, precluding the District Court judge from conducting a proportionality analysis between a right to privacy in this respect and the community's right to investigate and prosecute crimes. The second contention concerns the extent of the discretion of the Director of Public Prosecutions as to what witnesses are called at trial, with particular reference to expert witnesses. The dispute in this regard arises because the prosecution did not call the evidence of Dr Michael Curtis, the Deputy State Pathologist, which the appellant alleged contained evidence crucial to the defence case. The defence argument is that the DPP did not exercise her discretion to call or not call particular witnesses appropriately, and that this decision had a prejudicial effect on the jury's consideration of the evidence given at trial.

Background

7 Since this is a circumstantial evidence case, where the defence contention is that the absence of evidence before the jury that the accused had an otherwise inexplicable interest in researching the decomposition of human remains may have weakened the threads of circumstantial evidence so as to denature the prosecution case, some background is necessary.

8 On 3 June 2011, at Tipperary town Garda Station, the family of Bobby Ryan reported that he had inexplicably vanished. They were deeply worried. The deceased had not turned up for work, was not answering his phone and had neither messaged nor called any of his regular contacts. The deceased's final known contact with anyone, that is anyone who cared to come forward, was at Mary Lowry's...