DPP v Tanner

• Jurisdiction: Ireland
• Judge: Macken J.
• Judgment Date: 08 December 2009
• Neutral Citation: [2009] IECCA 138
• Docket Number: 150/06
• Court: Court of Criminal Appeal
• Date: 08 December 2009

DPP v Tanner

The People at the Suit of the Director of Public Prosecutions

V

Michael Tanner

Applicant

[2008] IECCA 18

150/06

COURT OF CRIMINAL APPEAL

CRIMINAL LAW

Evidence

Admissibility - Prejudice to accused - Whether fact that gardaí acting on"salient information" admissible - Whether such evidence prejudicial to accused - People (DPP) v Bowes [2004] IECCA 44, [2004] 4 IR 223 distinguished; People (DPP) v McGartland (Unrep, CCA, 20/1/2003) and People (DPP) v Bowes (No 2) [2006] IECCA 183, (Unrep, CCA, 20/1/2006) considered - Warrant - Search warrant - Whether Superintendent entitled to issue warrant - Whether serious genuine and reliable steps taken to find District Judge or peace commissioner - Urgency of situation - Whether warrant valid and correctly admitted into evidence - People (DPP) v Byrne [2003] 4 IR 423 considered - Misuse of Drugs Act 1977 (No 12), s 26 - Criminal Justice (Drug Trafficking) Act 1996 (No 29), s 8 - (150/2006 - CCA - 31/1/2008) [2008] IECCA 18

People (DPP) v Tanner

DPP v BOWES 2004 4 IR 223

DPP v MCFARLAND - unable to find

DPP v BOWES (No. 2) UNREP CCA HARDIMAN 20.1.2006 2006 IECCA 183

MISUSE OF DRUGS ACT 1977

CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996

MISUSE OF DRUGS ACT 1977 S26

CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S8(2)

CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S8(3)

DPP v BYRNE 2003 4 IR 423

CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S8

1 Judgment of the court (ex tempore) delivered on the 31st day of January 2008 by Macken J.

Macken J.

2 First of all we have had submissions from both parties and the court would like to thank counsel on behalf of the applicant Mr Durnin, senior counsel, for very fairly indicating to the court even at the commencement of sittings this morning that he would not be proceeding with those parts of the original Notice of Appeal or with those grounds on the original Notice of Appeal which, having regard to current jurisprudence, could no longer be readily sustained and the court is very grateful for that.

3 This is a case which raises essentially two distinct grounds of appeal one concerning the phrase 'salient information' and the second concerning legislation passed in relation to the issuing of warrants including warrants in cases such as this. As to ground number 3, which the court will deal with first, that is to say the use by counsel on behalf of the prosecution in the course of the trial in a question to one of the gardaí, of the phrase 'salient information', this is objected to by Mr Durnin, senior counsel on behalf of the applicant, on the grounds that the use of such a phrase as with the use of the phrase "confidential Information" is use which is highly prejudicial to an accused in the course of trial because, one, it is unnecessary, but also it is prejudicial from the point of view that the jury will be left with the belief that although not specified in any particular way there is something underlying it which is to the distinct disadvantage of the accused. In support of the application, which is resisted by counsel on behalf of the DPP, but in support of the application Mr Durnin relies in particular on the judgment of Fennelly J. in the case of DPP v Bowes [2004] and the extract from the judgment on the use of the phrase which Mr Durnin considers to be very analogous to the phrase actually used namely the phrase "confidential information". In the course of the judgment Fennelly J. stated as follows:

4 "The court is satisfied that the evidence regarding the 'confidential information' should not have been given. It was not probative of any element of the case against the accused Certainly the fact that gardaí from the National Drugs Unit in significant numbers and in plain clothes particularly targeted a car driven by the accused was almost certain to rouse suspicions of the jury that the gardaí Were acting on information. However it was unnecessary to lead any evidence at all on the subject of confidential information."

5 In support of that Fennelly J. pointed out that that particular case, that is, the case of Bowes, supra., was a much stronger case than the case of DPP v McFarland which he also cited. Accordingly he continued "on this ground alone the court is satisfied that the application must succeed". In relation to the actual confidential information which was the subject of that judgment it is noteworthy that the confidential information is briefly described in the following terms at page 226 of the judgment:

6 "In respect of the details and nature of the alleged 'confidential information' evidence was led at the hearing firstly that one garda witness Detective Sergeant Doran was aware that Detective Garda Walsh "was aware of confidential information in relation to importation and distribution of substantial quantities of diamorphine" and secondly when the latter came to give evidence that the "confidential information related to both the accused James Bowes the man in the dock".

7 It is very clear that the situation arising in the present case is significantly different from that. Mr Durnin on behalf of the applicant stated that a correct interpretation of the citation from Fennelly J's judgment ought to have been, even on that case, interpreted as meaning that even use of the phrase "confidential information" was an unacceptable use and similarly that the phrase "salient information" which he considers to be analogous, ought also to be prohibited from use in the course of a trial such as this. However Mr Durnin also very fairly and in his usual manner most correctly drew the court's attention to a subsequent decision of Mr Justice Hardiman in what might be called Bowes No. 2 an unreported decision of this court delivered by Mr Justice Hardiman on the 20 ^th January 2006 and the main bulk of the judgment the court does not have to be concerned with, but when it comes to the use of "confidential information" the court says as follows:

8 "Finally this brings one to the point regarding the prosecution's reference to "confidential information". As to the substance of the point in relation to "confidential information" a previous judgment in this court by Mr Justice Fennelly to the effect that there is no need to refer to (at) all to confidential information has been opened and it appears that the references actually made to it at the first trial of Mr Bowes were suck as to require the quashing of the conviction."

9 We have seen the context in which that occurred and then the court continues:

10 "Obviously we are concerned about that, concerned that no decision should be given here that would be inconsistent with that. But it would appear from the material Mr Molloy produced that the previous case featured an enthusiastic attitude on the part of the prosecution to the use of the term "confidential information". They were keen not only to put the phrase into circulation in the case but keen if at all possible to extract the nature or as much as possible of the nature of the confidential information. The fact was that the information referred to there specifically related to the importation and distribution of heroin. It is that rather than the fact that it specifically related to Mr Bowes that seems to us to be significant. The objectionable aspect to it, the term, was used here once and once only. There is no reason to believe that anybody participating in the trial regarded it as being of great significance or that it was in fact of great significance. An immediate reference to it would undoubtedly as was said in the course of argument have been counter productive from the defendant's point of view and although it is certainly true as it was said in the judgment in the previous appeal it was unnecessary to refer to confidential information. We do not believe that the single glancing reference here which is in stark contrast as I say to the enthusiastic reference to the term on the previous occasion had the slightest effect or created the suspicion of an unfair trial and therefore refuse the...