DPP v Smith

 
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2003 WJSC-CCA 4565

THE COURT OF CRIMINAL APPEAL

O'Flaherty J.

Baor J.

Lavan J.

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

Citations:

LARCENY ACT 1916 S33(1)

AG V CASHELL 1928 62 ILTR 31

AG PEOPLE V HAYDEN 1 FREWEN 347

1

EX TEMPORE JUDGMENT OF THE COURT delivered on the 2nd April 1990 by O'Flaherty J.

2

This is an application for bail by the applicant, Mr. Ian Smith. The applicant was convicted of receiving stolen property contrary to s. 33(1) of the Larceny Act, 1916. This was before Judge Buchanan and a jury on the 6th March 1990. The learned judge imposed a sentence of three years penal servitude on the charge.

3

In the course of an affidavit sworn on his behalf, his solicitor, Mr. Michael O'Connell, gives some back- ground information concerning the case which it is not necessary to go into for the determination of this matter. However, Mr. O'Connell does point to a number of matters which will be relied upon at the hearing of the appeal and which constitute grounds of appeal. For example, it is said that the search warrant was defective and reliance will be placed on a recent decision of the Supreme Court in that regard. Counsel for the Director of Public Prosecutions has said that the decision does not govern what happened in this case. However, it would appear that there is a case to be made in this regard because, of course, in regard to the case that was decided by the Supreme Court up to then the form of search warrant had not been challenged and had been in use for many decades. There is also a complaint made about evidence given by one of the expert garda witnesses and it is said that his evidence represented a volte-face; as a result of his evidence an application was made on behalf of the applicant for a mistrial and this application was refused. There are other grounds set forth which, it is said, would constitute, at least, arguable points at the actual hearing of the appeal.

4

Before the applicant can be admitted to bail, as has been decided by this Court in Attorney General v. Cashell,reported in 1928 62 I.L.T.R. and The People Attorney General) v. Hayden, leave to appeal must first be granted and before that can be done this Court has...

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