DPP v Tyndall

• Jurisdiction: Ireland
• Judge: Denham J.
• Judgment Date: 03 May 2005
• Neutral Citation: [2005] IESC 28
• Date: 03 May 2005
• Court: Supreme Court
• Docket Number: [S.C. No. 76 of

DPP v TYNDALL

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

and

MICHAEL TYNDALL

APPELLANT

[2005] IESC 28

DENHAM J.

HARDIMAN J.

GEOGHEGAN J.

FENNELLY J.

KEARNS J.

APPEAL NO. 76 /2004

THE SUPREME COURT

ARREST

Reasonable suspicion - Powers of arrest -Evidence of suspicion of arresting garda - No direct evidence as to suspicion of garda that accused had committed scheduled offence at time of arrest - State on notice arrest being challenged - Whether evidence of suspicion of arresting garda may be inferred from circumstances - Offences Against the State Act 1939 (No 13), s 30 - Conviction quashed

The appellant appealed his conviction by the Dublin Circuit Court to the Court of Criminal Appeal (CCA) on the grounds that his arrest pursuant to s.30 of the 1939 Act was invalid. The CCA certified that its decision refusing the appellant leave to appeal against his conviction involved a point of law of exceptional public importance, namely whether the CCA was correct in determining that the arrest of the appellant was a valid arrest pursuant to the provisions of s.30 of the Act of 1939 in circumstances where no evidence was led as to the suspicion of An Garda Siochana that the appellant had committed a scheduled offence at the time of the arrest. Further, whether the Court was entitled to infer the requisite suspicion for the purposes of the s.30 arrest in any circumstances and whether the wording of that section was 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.

Held by the Supreme Court (Denham, Hardiman, Geoghegan, Fennelly, Kearns JJ) in allowing the appeal: That the suspicion held by an arresting member of An Garda Siochana could be inferred from the circumstances. Accordingly the omission of direct evidence of the suspicion of the relevant member of An Garda Siochana would not render the arrest unsatisfactory if the suspicion could be inferred from the circumstances but evidence must exist from which it could be inferred. However, the circumstances of this case were not such as to enable the Court to infer the suspicion. The learned trial judge was not entitled to conclude that the circumstances were sufficient to compel an inference that the necessary suspicion existed.

Reporter: L.O'S.

OFFENCES AGAINST THE STATE ACT 1939 S30

COURTS OF JUSTICE ACT 1924 S29

OFFENCES AGAINST THE STATE ACT 1939 S30(1)

DPP, PEOPLE v QUILLIGAN 1986 IR 495 1987 ILRM 606

ROAD TRAFFIC ACT 1961 49(6)

DPP v O'CONNOR 1985 ILRM 333

O'CONNOR JUSTICE OF THE PEACE 2ED PART 1

CONSTITUTION ART 50

STATUTE OF LIMITATIONS 1957 S9

MCGUINNESS v ARMSTRONG PATENTS LTD 1980 IR 289

MCCANN v BORD PLEANALA 1997 1 IR 264 1997 1 ILRM 314

WALSH CRIMINAL PROCEDURE 2002 643

WOODS DISTRICT COURT PRACTICE & PROCEDURE IN CRIMINAL CASES 1994 77

1 Judgment delivered on 3rd day of May, 2005 by Denham J.

2 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.

3 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.

4 3. The points of law certified for consideration by this Court are:

5 (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 1939in 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.

6 (b) Whether the Court was entitled to infer the requisite suspicion for the purposes of a s.30 arrest in any circumstances.

7 (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. Background

8 The 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.

9 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.

10 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. Law

11 Section 30(1) of the Offences Against the State Act 1939provides:

"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..."

12 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 arrest

13 The 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 from Shankill Station and I immediately arrested Mr. Michael Tyndall under Section 30 of the Offences Against the State Act, of 1939for the scheduled offence of unlawful possession of firearms at 33 Clifton Park, on 9th of April, 1999."

14 He gave the applicant the usual caution and informed him that he was arresting him under s.30 of the Offences Against the State Act, 1939.

15 7. The Trial Judge held that the arrest was valid stating:

"... It is correct from the evidence he gave that he did not state specifically in his testimony that he had a suspicion. But I am prepared to infer and give the proper and ordinary meaning to the words that when the Detective Sergeant informed the accused at the front door that he was arresting him under Section 30 of the Offences Against the State Act 1939for the unlawful possession of firearms ... and proceeded to caution him and tell him why he was being arrested, that the Detective Sergeant was and had at that time a reasonable suspicion. The mere omission in evidence of the words, because I had a reasonable suspicion or the suspicion of his unlawful possession, does not render that arrest in my view incomplete or unsatisfactory ... But I do not hold the view that the mere omission of the use of the words amounts to de facto or de jure an absence or omission or non-existence of that suspicion. Detective Sergeant Campbell was the officer in charge of the investigation which was underway since the 9th of April 1999. He was in possession of the facts, he had obtained a search warrant, though it has not been relied upon or produced in evidence for the purposes of a search of the home of the accused under section 30, and he went there. Immediately Mr. Tyndall appeared to him at the door, he arrested him for the unlawful possession of firearms at 33 Clifton Park on the 9th of April. I am satisfied that that by definition, or as Mr. Gaffney puts it, leads to an irresistible inference that he had such a suspicion and acted upon it. Consequently, I am satisfied that the arrest is lawful for the purposes of this trial."

16 8. The Court of Criminal Appeal held:

"This court is satisfied that if the learned trial judge was entitled to draw inferences on this issue from the specific evidence adduced, then there was ample evidence on which he could draw such an inference. The only issue is whether the wording of the section is such as to require formal proof in specific terms of the existence of the suspicion by...