DPP v Smith

 
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1991 WJSC-CCA 1864

COURT OF CRIMINAL APPEAL

Finlay C.J.

Costello J.

Lardner J.

No 28/1990
DPP v. SMITH
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
v.
IAN SMITH
Appellant

Citations:

DPP, PEOPLE V KENNY 1990 ILRM 569

Synopsis:

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CRIMINAL LAW

Warrant

Issue - Validity - Peace Commissioner - Powers - Information - Sufficiency - Goods - Larceny - Search warrant - Jury trial - Judge's charge - Indictment for possession of stolen goods - Guilty knowledge - Evidence - Careless business practice - Larceny Act, 1916, s. 42 - Courts of Justict Act, 1924, s. 88 - (28/90 - Court of Criminal Appeal - 5/11/90)

|The People v. Smith|

EVIDENCE

Possession of stolen goods

Jeweller - Business - Practice - Records - Incompleteness - Carelessness - Whether evidence of guilty knowledge - (28/90 - Court of Criminal Appeal - 5/11/90)

|The People v. Smith|

1

JUDGMENT OF THE COURT (Ex Tempore) delivered on the 5th day of November 1990 by FINLAY C.J.

2

This is an appeal brought by the Appellant against conviction and sentence imposed on him by the Circuit Court in Dublin pursuant to an Order of this Court granting him liberty to appeal.

3

The Court has carefully considered the submissions made to it and is satisfied that the Appellant is entitled to succeed on his appeal and that a new trial of the charges against him must be ordered. The Court has come to this decision for the following reasons.

4

Dealing with the grounds of appeal which were put forward carefully and in separate headings by Counsel on behalf of the Appellant the Court has reached these conclusions.

5

1. The first ground put before us in the submissions was a challenge to the validity of a search warrant pursuant to which the Garda Siochana entered the premises of the accused and found therein a number of items of jewellery, namely, eleven which were eventually identified as the property of the injured party in this case and as having been stolen from her and her husband's premises. The challenge to the search warrant was in effect based on the decision of this Court and on the decision of the Supreme Court in the case of The Director of Public Prosecutions v. Kenny which is now reported at 1990 ILRM, No. 10.

6

The net point being raised with regard to this search warrant was that when the garda involved went to a Peace Commissioner to obtain the search warrant he had sworn information in writing, consisting merely of a statement that he had knowledge and belief that the stolen property might be found on the premises. He gave evidence that in addition to that he supplemented that information by stating that the owner of the stolen jewellery had seen what she was satisfied was two of the objects of jewellery in the window of the Defendant's shop. It was submitted by Mr. O'Carroll on behalf of the Appellant that that oral evidence changed the situation and that the Court could not act on the search warrant which was obtained in part on that oral evidence without having the evidence of the Peace Commissioner who granted it. This Court is satisfied there is nothing in that submission. The Supreme Court in the Kenny case clearly indicated that the Commissioner was carrying out a duty of reaching a decision and that in so doing he must not act as a mere rubber stamp, to paraphrase the reason for the decision, on the information of a member of the Garda Siochana, but in this instance the evidence which was obviously accepted by the learned trial Judge when the search warrant was challenged was to the effect that he did not do so but was given the general grounds on which he could reach such a decision and that he did so, and therefore this ground must fail.

7

The second ground was that the evidence of Det. Sergeant Nash, the handwriting expert called on behalf of the prosecution, differed at the hearing from what had been in the book of evidence to the prejudice of the accused. In the book of...

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