DPP v Tallant

• Jurisdiction: Ireland
• Judge: FENNELLY J.
• Judgment Date: 19 March 2003
• Neutral Citation: 2003 WJSC-CCA 4591
• Date: 19 March 2003
• Docket Number: [C.C.A. No. 29 of 2002]
• Court: Court of Criminal Appeal

2003 WJSC-CCA 4591

COURT OF CRIMINAL APPEAL

Fennelly J.

Kearns J.

Ó Caoimh J.

29/02

DPP v. TALLANT

THE PEOPLE AT THE SUIT OF

THE DIRECTOR OF PUBLC PROSEUCTIONS

-v-

DEREK TALLANT

Applicant

Citations:

MISUSE OF DRUGS ACT 1977 S26

MISUSE OF DRUGS (AMDT) ACT 1984

BYRNE V GREY 1988 IR 31

R V IRC EX PARTE ROSSMINISTER 1980 AC 952

DPP V KENNY 1990 2 IR 110

COURTS OF JUSTICE ACT 1924 S29

Synopsis:

CRIMINAL LAW

Drugs offences

Validity of search warrants - Whether search warrants improperly issued - Misuse of Drugs Acts, 1977 - 1984 (29/2002 - Court of Criminal Appeal - 19/2003 - Court of Criminal Appeal - 19/3/2003)

People (DPP) v Tallant - [2003] 4 IR 343

Facts: The applicant sought leave to appeal against his conviction for drugs offences. The applicant's house had been raided by An Garda Síochána who had found a quantity of diamorphine and cannabis resin. On behalf of the applicant it was submitted that search warrants issued to search his premises were defective. It was contended that there had been insufficient evidence before the District Court Judge to issue the warrants in question. The garda who had obtained the warrants had stated to the District Judge that he was seeking the warrants on basis of 'confidential information', 'enquiries carried' and 'information received'.

Held by the Court of Criminal Appeal in refusing leave to appeal. In this case the District Judge had evidence before him, he had acted judicially and did not merely rubber stamp the evidence of the garda. It had not been shown that the District Judge in question could not reasonably have formed the opinion that a warrant should be issued. Leave to appeal was refused.

1 19th day of March, 2003 by FENNELLY J.

FENNELLY J.

2 The applicant in this case was found guilty in the Dublin Circuit (Criminal) Court on the 6 ^th day of February, 2002 on a number of counts of possession of controlled drugs, one count of possession of diamorphine (i.e. heroin) for supply and two counts of simple possession one in respect of diamorphine and the other in respect of cannabis resin. A single point arises on the application for leave to appeal which is this: that the evidence that was used to incriminate the applicant at his trial depended crucially on the finding of diamorphine in the premises at 39 Pearse Park, Sallynoggin on foot of two warrants issued by the District Court pursuant to s.26 of the Misuse of Drugs Act, 1977. The warrants were issued on the basis of two sworn informations by respectively Garda Paul Gavin and Garda Colm McLoughlin. In the sworn information of the 26 ^th October, 2000 of Garda Paul Gavin he said " I am a member of the Garda Síochána and I have ground for suspecting that a person is in possession, in contravention of the Misuse of Drugs Acts, 1977and 1984...," and then it goes on to specify diamorphine and to give the premises where the substance was suspected to be, at 39 Pearse Park, Sallynoggin, County Dublin. The ground, which is the material matter in the grounds of appeal, for so suspecting as given by Garda Gavin was "confidential information received and enquiries carried out" and the ground given by Garda Colm McLoughlin in a more or less identical information sworn on the 11 ^th December, 2000 was "information received and enquiries carried out". It is to be noted immediately that each of those sworn informations uses the expression "enquiries carried out" but the difference is that one says "confidential information received" and the other says "information received". In each case the District Court through District Judge Kirby issued a search warrant pursuant to s.26 of the Act entitling the Garda Síochána to search the premises in question. These searches resulted in the substances which were found and which were produced at the trial. The objection that is taken by Mr Colman Fitzgerald, counsel on behalf of the applicant is that these warrants were invalid. He made that objection as he was perfectly entitled to do at the trial on the basis that there was insufficient evidence before the District Court to entitle the District Judge to issue the warrants in question. He relied in particular on the decision of Mr Justice Hamilton (as he then was) in the case of Byrne v. Grey [1988] IR. That was a case also where there was a warrant issued by the District Court pursuant to the very same section. However there is a difference and whether it is a difference which makes that case distinguishable is the very point at the heart of the appeal. The difference is that in that case the information sworn by the garda in order to get the warrant was simply that he had grounds for suspecting that there was cannabis being cultivated, while here it is said, in each case, by the garda that he had "confidential information" and "enquiries carried out" in one case and "information received" in...