DPP v Sweeney

• Jurisdiction: Ireland
• Judge: Mr. Justice Morris
• Judgment Date: 26 March 1996
• Neutral Citation: 1996 WJSC-HC 3110
• Docket Number: No. 845 SS/1995,[1995 No. 845SS]
• Court: High Court
• Date: 26 March 1996

1996 WJSC-HC 3110

THE HIGH COURT

No. 845 SS/1995

DPP v. SWEENEY

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT,

1857 AND

IN THE MATTER OF SECTION 51 OF THE COURTS (SUPPLEMENTAL

PROVISIONS) ACT, 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

APPELLANT

AND

MARIE SWEENEY

RESPONDENT

Citations:

SUMMARY JURISDICTION ACT 1857 S2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51

COPYRIGHT ACTS 1963 – 1987

OFFENCES AGAINST THE STATE ACT 1939 S29(1)

CRIMINAL LAW ACT 1976 S5

OFFENCES AGAINST THE STATE ACT 1939 PART V

BYRNE V GRAY & ORS 1988 IR 31

MISUSE OF DRUGS ACT 1977 S26

Synopsis:

CRIMINAL LAW

Warrant

Issue - Validity - Search - Justification - Garda Siochana - Power of Superintendent to issue search warrant - Power exercisable where there was reasonable ground for believing evidence of specified offence would be found in particular building - No such evidence found - Evidence of commission of another offence found G7 - Whether latter evidence admissible at trial of accused on charge that he committed other offence - (1995/845 SS - Morris J. - 26/3/96) - [1996] 2 IR 313

|Director of Public Prosecutions v. Sweeney|

EVIDENCE

Admissibility

Procurement - Means - Legality - Warrant - Search - Justification - Search revealed evidence of unlawful trading - Warrant issued for different purpose - Whether evidence admissible in prosecution of charge of unlawful trading - Warrant issued on basis of reasonable belief that evidence of commission of scheduled of fence would be found in search of dwelling - No evidence of scheduled offence found - Offences Against the State Act, 1939 (No. 13), s. 29 - Criminal Law Act, 1976 (No. 32), s. 5 - (1995/845 SS - Morris J. - 26/3/96) - [1996] 2 IR 313

|Director of Public Prosecutions v. Sweeney|

GARDA SIOCHANA

Powers

Warrant - Issue - Search - Justification - Search revealed evidence of unlawful trading - Warrant issued for different purpose - Whether evidence admissible in prosecution of charge of unlawful trading - Warrant issued on basis of reasonable belief that evidence of commission of scheduled offence would be found in search of dwelling - No evidence of scheduled offence found - (1995/845 SS - Morris J. - 26/3/96) - [1996] 2 IR 313

|Director of Public Prosecutions v. Sweeney|

WORDS AND PHRASES

"Ground for believing"

Warrant - Issue - Validity - Search - Justification - Garda Siochana - Power of Superintendent to issue search warrant - Power exercisable where there was reasonable ground for believing evidence of specified offence would be found in particular building - No such evidence found - Evidence of commission of another offence found - Whether latter evidence admissible at trial of accused on charge that he committed other offence - (1995/845 SS - Morris J. - 26/3/96) - [1996] 2 IR 313

|Director of Public Prosecutions v. Sweeney|

1 Judgment delivered by Mr. Justice Morris on the 26th day of March, 1996

2 This matter comes before the Court by way of Case Stated pursuant to the provisions of Section 2 of the Summary Jurisdiction Act, 1857 as extended by Section 51 of the Courts (Supplemental Provisions) Act, 1961on the application in writing of the Director of Public Prosecutions who is dissatisfied with the determination by District Judge Flannan Brennan. It was alleged that the said determination was erroneous in point of law and the opinion of the High Court is accordingly sought.

3 The facts insofar as they are relevant for the determination of this Case Stated can be summarized as follows:

4 The matter came before the District Court in Castleblayney on the 21st March, 1994 and the Respondent appeared to answer accusations of offences under the Copyright Acts, 1963 and 1987. Amendments were made to the 10 summonses and as a result of the amendments, the allegations made against the Respondent were that on the 12th May, 1992 she had in her possession for the purposes of trade, video tapes, the copyright of which was vested in a third party, contrary to the Copyright Acts. Each of the 10 summonses, which were in indentical terms, related to a separate video tape.

5 The prosecution case rested entirely upon evidence harvested from a search of the premises, carried out by the Gardai pursuant to a search warrant dated the 11th May, 1992 issued by Chief Superintendent McHugh. This search warrant was issued pursuant to Section 29(1) of the Offences Against the State Act, 1939(inserted by Section 5 of the Criminal Law Act, 1976). The reason for the issue of the search warrant under that Act was because there was a belief that evidence in relation to a schedule offence under Part 5 of the 1939 Act was to be found in the Respondent's premises.

6 In fact, no such evidence was found in the premises and accordingly, the only summonses against the Respondent were alleged offences, under the Copyright Act of, what was described at the hearing, as "pirate videos" for the purposes of trade.

7 At the hearing before the District Judge, it was agreed that the validity of the search warrant would be dealt with as a preliminary issue since the only evidence against the Respondent was the fruits of that search. If the search warrant was held to be bad and if the fruits of the search were accordingly inadmissible, then the Respondent was entitled to have the summonses dismissed.

8 A short summary of the events which led up to the issue of the search warrant is necessary:

9 In the months leading up to the search of the Respondent's premises, Chief Superintendent James McHugh was involved in the investigation of the provision of funding to illegal organisations and terrorism. Inspector P.J. Browne was appointed to carry out these investigations and to report back to Chief Superintendent McHugh. These two officers were in regular contact until May of 1992 and Chief Superintendent McHugh was informed by Inspector Browne on a regular basis of the progress of his enquiries and investigations. Inspector Browne was in possession of information, from a reliable source, that the Respondent was engaged, with others, in video piracy and the proceeds of the sale were being used in the maintaining and funding of the IRA. In the first week of May, Inspector Browne reported that he had particular information regarding the names and addresses of parties involved in such funding and in particular, information identifying that profits were going to the maintaining and funding of the IRA. A conference was held, which was attended by the Assistant Commissioner and various other branches of An Garda Siochana, and Inspector Browne briefed the conference on these details. A decision was made to carry out raids.

10 Based on...