DPP v Roche (1)
| Jurisdiction | Ireland |
| Judge | Clarke C.J.,Dunne J.,Baker J. |
| Judgment Date | 14 July 2020 |
| Neutral Citation | [2020] IESCDET 84 |
| Date | 14 July 2020 |
| Court | Supreme Court |
| Docket Number | Supreme Court record no: S:AP:IE:2020:000017 Circuit Criminal Court record no: Bill No. LKDP0072/2016 |
AND
[2020] IESCDET 84
Clarke C.J.
Dunne J.
Baker J.
Supreme Court record no: S:AP:IE:2020:000017
Court of Appeal record no: 2018 No. 30
Circuit Criminal Court record no: Bill No. LKDP0072/2016
THE SUPREME COURT
DETERMINATION
RESULT: The Court does not grant leave to the Applicant to appeal to this Court from the Court of Appeal
REASONS GIVEN:
ORDER SOUGHT TO BE APPEALED
| COURT: Court of Appeal |
| DATE OF JUDGMENT OR RULING: 10th December, 2019 |
| DATE OF ORDER: 10th December, 2019 |
| DATE OF PERFECTION OF ORDER: 27th January, 2020 |
| THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 17TH FEBRUARY, 2020 AND WAS IN TIME. |
The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the Thirty-third Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B. S. v. Director of Public Prosecutions [2017] IESCDET 134 and in a unanimous judgment of a full Court delivered by O'Donnell J. in Quinn Insurance Ltd. v. PricewaterhouseCoopers [2017] IESC 73, [2017] 3 IR 812. It follows that it is unnecessary to revisit the new constitutional architecture for the purposes of this determination.
Furthermore, the application for leave and the respondent's notice filed are published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties.
Any ruling in a determination concerns whether the facts and legal issues meet the constitutional criteria identified above, is particular to that application, and is final and conclusive only to that extent and as between the parties.
The respondent opposes the grant of leave to appeal.
This is an application of Patrick Roche (“the applicant”) for leave to appeal to this Court pursuant to the provisions of Article 34.5.3° of the Constitution from the order of the Court of Appeal of 10 December 2019 (the President and McCarthy and Kennedy JJ.), for the reasons set out in a written judgment delivered by Kennedy J., The People (DPP) v. Roche [2019] IECA 317. The Court of Appeal dismissed his appeal against conviction after a nine-week trial before the Limerick Circuit Criminal Court of two counts of aggravated burglary contrary to s. 13 of the Criminal Justice (Theft and Fraud Offences) Act 2001; eight counts of false imprisonment contrary to s. 15 of the Non-Fatal Offences Against the Person Act 1997; and dishonest handling contrary to s. 17 of the Criminal Justice (Theft and Fraud Offences) Act 2001.
On 24 November 2017, the applicant received a sentence of 17 years' imprisonment with the final three years suspended.
The determination in the application of his co-accused, his son, Philip Roche, is also delivered today.
In the course of the trial the legality of the arrest of the applicant and of his son was challenged. The voir dire concerned two issues: the validity of the search warrant and the legal entitlement of the arresting Gardai to enter the home of the applicant and his son. The applicant's case was that the search warrant authorised a search of the premises but did not authorise entry for the purpose of arrest, and that the Gardai ought to have invoked section 6 of the Criminal Law Act 1997 and informed him that they were present on the premises for the purpose of arrest.
The Circuit Court judge ruled that the arresting Gardai were not lawfully in the applicant's home for the purpose of arrest and found the arrest unlawful
Following this ruling, counsel for the respondent sought to have the evidence which flowed from the arrest of each applicant admitted in reliance on The People (DPP) v. J. C. [2015] IESC 31, [2017] 1 IR 417. In the course of that application, counsel for the respondent sought to call evidence to address the state of mind of the relevant witnesses, in particular in relation to the taking of buccal swabs for the DNA. Garda evidence was examined, cross-examined, reexamined and re-cross-examined, and at the conclusion of that evidence counsel for the respondent argued that the state of the evidence then was that both Garda members went to the premises in the knowledge that both men ordinarily resided at that address, and that accordingly section 6(2)(d) applied.
The applicant opposed the application, and submitted that it was fundamentally unfair and procedurally incorrect and the Circuit Judge adjourned the application to revisit his ruling on the lawfulness of the applicant's arrest.
On the resumed hearing some days later the Circuit Judge in reliance on the decision of the Court of Appeal in The People (DPP) v. Collins [2011] IECCA 64 and held that...
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