DPP v Tierney
| Jurisdiction | Ireland |
| Judge | Mr. Justice Mahon |
| Judgment Date | 23 February 2018 |
| Neutral Citation | [2018] IECA 44 |
| Docket Number | Record No. 279 2016 |
| Court | Court of Appeal (Ireland) |
| Date | 23 February 2018 |
[2018] IECA 44
THE COURT OF APPEAL
Mahon J.
Mahon J.
Edwards J.
Hedigan J.
Record No. 279 2016
Crime & sentencing – Demand with menaces – Criminal damage – Appeal against conviction on single count
The appellant had been charged with 2 counts of making an unwarranted demand with menaces and a single count of criminal damage. He had been found guilty on the 3rd count only, and now appealed against that conviction arguing inter alia that the judge had incorrectly admitted evidence and failed to defend his constitutional rights.
Held, that the appeal would be dismissed. The Court was satisfied that none of the appellant’s grounds of appeal had been made out. The judge’s rulings on the issues of a search warrant, the arrest and interview of the appellant were correct.
The appellant pleaded not guilty to three counts at Dundalk Circuit Criminal Court on the 14th June 2016, namely:-
• Count No. 1:
Making an unwarranted demand with menaces contrary to s. 17 of the Criminal Justice (Public Order) Act 1994 as amended by the Intoxicating Liquor Act 2008.
• Count No. 2:
Making an unwarranted demand with menaces contrary to s. 17 of the Criminal Justice (Public Order) Act 1994 as amended by the Intoxicating Liquor Act 2008.
• Count No. 3:
Criminal damage contrary to s. 2 of the Criminal Damage Act 1991.
In respect of count 1, the appellant was found not guilty by direction of the Court. In respect of count 2, the appellant was found not guilty by a unanimous jury verdict, and in respect of count 3, he was found guilty by a unanimous jury verdict. He was sentenced on the 10th of October 2016 to three months imprisonment. The entire term was suspended on conditions.
The appellant has appealed against his conviction on count 3.
The charges against the appellant arose from incidents which were said to have occurred on the 16th May 2013 and the 23rd May 2013 at Five Oakes Village, Drogheda, County Louth, the home of Mr. Martin O'Brien. It was alleged that the appellant on both dates attended at Mr. O'Brien's home and demanded the re-payment of a debt said to be due to him by Mr. O'Brien's son in the sum of €15,000. The demands are said to have been made with menaces. On the second occasion, the 23rd May 2013, it was alleged that the appellant broke a pane of glass in Mr. O'Brien's front door. This incident is the subject matter of the third count in respect of which the appellant was found guilty.
The grounds of appeal filed by the appellant are as follows:-
(i) The learned trial judge erred in law in her rulings and directions and failed to properly defend and to vindicate the appellant's constitutional rights.
(ii) Without prejudice to the generality of the foregoing, the learned trial judge erred in law in ruling as admissible in evidence at his trial the purported memorandum of the appellant's cautioned interview with gardaí notwithstanding that the memo was taken whilst he was in unlawful detention following his unconstitutional arrest and deprivation of liberty.
(iii) Further, and without prejudice to the generality of the foregoing, the learned trial judge admitted as evidence at the appellant's trial a memorandum of cautioned interview taken in such circumstances of unconstitutionality, as are outlined above, even though the original memorandum had been mislaid and it was not available to the Court.
(iv) Further to the foregoing the learned trial judge erred in law in failing to balance the competing rights and obligations of the parties and erred in her assessment and application of relevant legal principles and authorities.
(v) Such further or other grounds as may be permitted.
On the 24th May 2013 a search warrant was issued by the District Court pursuant to s. 29 of the Offences Against the State Act 1939 and which authorised a search of the appellant's home at 66, Park Grange, Grange Rath, Drogheda, County Louth. The reason for the granting of the search warrant was on the basis that ‘as the holder of a licensed firearm, (the appellant) may have had other firearms as it is usual in this area for persons to use firearms in enforcing the payments of drug offences’. The appellant's home was duly searched. No unlawfully held firearms were found. At the conclusion of the search, Det. Sgt. Kearns arrested the appellant under s. 17 of the Criminal Justice (Public Order) Act 1994 for the alleged offence of demanding money with menaces and extortion. He was then detained at Dundalk garda station pursuant to s. 4 of the Criminal Justice Act 1984, and interviewed after caution. A memorandum of that interview was the sole exhibit in the book of evidence in the appellant's trial.
It is contended on behalf of the appellant that his arrest was unlawful and that his constitutional rights had been breached. It was argued that the memorandum of his interview related to an interview conducted while he was in unlawful custody and should therefore be excluded.
In the course of the first day of the trial a voir dire took place in which the issues of the contested search warrant and the admission into evidence of the memorandum were considered.
In relation to the search warrant, the learned trial judge ruled as follows:-
‘…I am absolutely quite satisfied…from the evidence of Det. Gda. Kelly…that he was fully entitled to get the warrant. And I say that for the following reasons, that it is clear to me that he had gathered all the appropriate information to allow him to go under reasonable suspicion, and he set out the grounds comprehensively.. (he) didn't just use the few lines that were available to him. But gave a full assessment as to why he was looking for the warrant. Went further than that, insofar as that he indicated that he had discussions with the District Judge in that regard…he was aware of the existence of a licence for this firearm for Mr. Tierney. Mr. Tierney hadn't been identified, the guards having carried out reasonable enquiries. And in putting two together where Det. Gda. Kelly was of the view that monies were been demanded of these people and threats being made, added with the fact that there was a legally held firearm, then it seems to me, I absolutely agree with Mr. Seagrave there would have been criticism of them had he not gone looking for a search warrant to see if there were any other firearms on the premises and indeed to seize what firearms were there.’
In relation to the issue as to the true intent and purpose of the search warrant, the learned trial judge ruled as follows:-
‘Well in my view, the true intent and purpose of executing the search warrant was clearly to search for unlawful arms, having regard to the threats received by the O'Brien family and in circumstances where the gardaí were already aware that the accused has one legally held firearm. As I have already indicated, I am satisfied that the gardaí entered on foot of a valid search warrant and indeed the accused operated fully in this regard. Clearly, the purpose of carrying out the search was premised on the basis of the complaints by the O'Brien family in relation to threats made against them and the concern of the gardaí that a firearm would be used to carry out such threats. Whilst no unlawful firearm was found on the premises the gardaí (seized) other items to assist them in their investigations, namely the accused's phone, laptop etc. After the search was complete, Det. Gda. Kearns's concerns arrested Mr. Tierney for an offence pursuant to s. 17 of the Criminal Justice Public Order Act 1994 for demanding money with menaces. When asked what power he involved to carry out the arrest he replied that he had invoked the powers pursuant to s. 24 of that Act. There is no dispute that no such power of arrest was available to Det. Gda. Kearns pursuant to that section. However it is clear from his arrest that he explained to the accused the offence for which he was been arrested and indeed duly cautioned him. It is clear that Det. Gda. Kearns was of the view that he had the power to arrest the accused and indeed this is not disputed. The issue relates to the power invoked by him. Clearly, Det. Gda. Kearns was in error in relation to the matter but there was no question of any mala fides on his part. Indeed, given that the accused is not a lawyer it is difficult to see how this in any way negatively impacted on him where it was explained to him in layman's terms the reasons for his arrest, albeit the wrong power being invoked. Clearly, the objection being taken here by the (defence) is that there was a breach of the accused constitutional rights in circumstances where the arresting guard invoked the wrong power of arrest and contends therefore the exclusionary rule ought to apply. I am satisfied from the evidence that there was no deliberate or conscious violation of the accused's constitutional rights and clearly there is no allegation of mal fides on Det. Gda. Kearn's part. In all the circumstances I am satisfied that this is a classic class of inadvertence on the part of Det. Gda. Kearns wherein there could have been no prejudice to the accused,...
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