DPP -v- Tyndall, [2005] IESC 28 (2005)

Docket Number:76/04
Party Name:DPP, Tyndall
Judge:Denham J.
 
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THE SUPREME COURTAPPEAL NO. 76 /2004DENHAM J.HARDIMAN J.GEOGHEGAN J.FENNELLY J.KEARNS J.THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONSRESPONDENTandMICHAEL TYNDALLAPPELLANTJudgment delivered on 3rd day of May, 2005 by Denham J.1. At issue in this case are the proofs of an arrest in a trial where the State was put on notice that the arrest was being challenged. The arrest was made pursuant to s.30 of the Offences Against the State Act, 1939 (hereinafter referred to as the Act of 1939) under which a member of the Gárda Síochána may arrest any person whom he or she suspects of having committed or being about to commit or being or having been concerned in specific offences.2. The issue comes before the Court on an appeal pursuant to s.29 of the Courts of Justice Act, 1924. The Court of Criminal Appeal has certified that its decision of the 26th May, 2003, refusing Michael Tyndall, the applicant/appellant, hereinafter referred to as the applicant, leave to appeal against his conviction by the Dublin Circuit (Criminal) Court on the 9th March, 2001, involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal be taken to the Supreme Court on that decision.3. The points of law certified for consideration by this Court are:(a) Whether the Court of Criminal Appeal was correct in determining that the arrest of the applicant was a valid arrest pursuant to s.30 of the Offences Against the State Act 1939 in circumstances where no evidence was led as to the suspicion of An Gárda Síochána that the applicant had committed a scheduled offence at the time of the arrest. The extent of the evidence of Detective Sergeant Campbell on the arrest was that of arrest, charge and caution.(b) Whether the Court was entitled to infer the requisite suspicion for the purposes of a s.30 arrest in any circumstances.(c) Whether the wording of the section is such as to require formal proof by leading oral evidence in specific terms of the existence of the suspicion of the arresting officer given that the suspicion is a statutory element of a valid s.30 arrest.4. BackgroundThe background to the case is that James Mahon, a milkman by occupation, was at home with his family, his three children, his partner Georgina Finn and her brother Christopher Finn. Two men entered the house. One had a baseball bat and the other a knife and gun. Mr. Mahon was stabbed and badly injured. The prosecution case was that the applicant was the man who had the knife and gun.The applicant was charged on indictment that on the 9th April, 1999, (i) he did have with him a firearm namely a Smith and Weston air pistol of 6mm calibre with the intent to commit the indictable offence of robbery; (ii) robbed one James Mahon of cash to the value of £450; (iii) intentionally or recklessly caused serious injury to James Mahon.The applicant pleaded not guilty on all counts and on 21st February, 2001 his trial commenced in the Dublin Circuit Criminal Court before His Honour Judge McCartan and a jury. The applicant was convicted on all counts and sentenced to a term of 12 years imprisonment on the 20th March, 2001.5. LawSection 30(1) of the Offences Against the State Act 1939 provides:"A member of the Gárda Síochána … may without warrant … arrest any person … whom he suspects of having committed or being about to commit or being or having been concerned in the commission of an offence under any section or sub-section of this Act or an offence which is for the time being a scheduled offence for the purposes of Part V of this Act…"The words of the section are clear. A member of the Gárda Síochána may without warrant arrest any person whom he suspects of having committed or being about to commit or being or having been concerned in the commission of a specified offence. The suspicion is a condition precedent to the arrest. Section 30 gives to a member of the Garda Síochána a significant power.6. The evidence of arrestThe evidence of the arrest was that Sergeant Patrick Campbell stated:"I knocked on the front door, my Lord, Mr. Michael Tyndall opened the front door. I identified myself as a member of an Gharda (sic) Siochana...

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