Geasley v DPP

• Jurisdiction: Ireland
• Judge: Mr Justice Fennelly
• Judgment Date: 24 March 2009
• Neutral Citation: [2009] IECCA 22
• Court: Court of Criminal Appeal
• Date: 24 March 2009

[2009] IECCA 22

THE COURT OF CRIMINAL APPEAL

Fennelly J.

Budd J.

MacMenamin J.

Record No. Court of Criminal Appeal 72/08

Geasley v DPP

BETWEEN

GLEN GEASLEY

APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

DPP v DILLON 2002 4 IR 501 2003 1 ILRM 531 2002/9/1993

DPP v B 2002 2 IR 246 2001/7/1586

DPP v LYNCH UNREP CCA 27.7.1999 2000/7/2757

COURTS OF JUSTICE ACT 1924 S32

CRIMINAL PROCEDURE ACT 1993 S3(6)

ARCHBOLD ARCHBOLD CRIMINAL PLEADING EVIDENCE & PRACTICE 2003 PARA 7.46(B)

R v PRESTON (STEPHEN) 1992 95 CAR 355

POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S98

POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S98(1)

POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S98(5)

INTERCEPTION OF POSTAL PACKETS & TELECOMMUNICATIONS MESSAGES (REGULATION) ACT 1993 S13(3)

KENNEDY & ORS v IRELAND & AG 1987 IR 587 1988 ILRM 472 1988/2/367

POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S98(6)

AG v RYANS CAR HIRE LTD 1965 IR 642

HOGAN & WHYTE JM KELLY: THE IRISH CONSTITUTION 4ED PARA 6.3.133

COURTS

Jurisdiction

Doctrine of precedent - Stare decisis - Decision per incuriam - Whether doctrine of stare decisis abandoned - Duty to give effect to legislation - Leave to appeal refused (72/2008 - CCA - 24/3/2009) [2009] IECCA 22

People (DPP) v Geasley

CRIMINAL LAW

Appeal

Guilty plea - Appeal against conviction - Whether ruling on admissibility of telephone conversations left no option but to plead guilty -Whether trial unfair - Whether denial of legal protection - Under-cover operation - Whether telephone conversations unlawfully intercepted - Whether decision to plead guilty followed erroneous ruling of fundamental nature - Whether fundamental error by trial judge - Whether conversations intercepted - Whether trial judge bound to follow prior decision where decision mistakenly based on legislation not in force -Doctrine of precedent - Decision per incuriam - Whether doctrine of stare decisis abandoned - Duty to give effect to legislation - People (DPP) v Dillon [2002] 4 IR 501 - People (DPP) v B [2002] 2 IR 246; People (DPP) v Lynch (Unrep, CCA, 27/7/1999); R v Preston (1992) 95 Cr App 355; Kennedy v Ireland [1987] IR 587; Attorney General v Ryan's Car Hire [1965] IR 642 considered - Courts of Justice Act 1924 (No 10), s 32 - Postal and Telecommunications Services Act 1983 (No 24), s 98 - Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993 (No 10), s 13 - Application dismissed (72/2008 - CCA - 24/3/2009) [2009] IECCA 22

People (DPP) v Geasley

1 1. This is an application for leave to appeal in a case where the applicant has pleaded guilty at his trial. He says that the learned trial judge, by ruling admissible evidence of certain telephone conversations, abandoned the principle of stare decisis and denied him the protection of the law. Thus his trial lacked the fundamental attributes of a fair trial so that he was left with no option but to plead guilty.

2 2. The applicant was tried at Cork Circuit Criminal Court before His Honour Judge Patrick Moran and a jury on three counts of conspiracy to possess firearms or ammunition and one of an attempt to possess firearms. The Trial commenced on 12 ^th February 2008. On the ninth day, the applicant pleaded guilty to Count 2 on the indictment which was as follows:

"Glen Geasley and other persons did on a date between the 22 ^nd February 2007 and 20 ^th April 2007, both dates inclusive and within the State, conspire together to commit crime(s) punishable by law, namely:- Possession of firearms to wit two RPG7 rocket launchers, five AKM assault rifles 7.62 x 39mm calibre, 5 AKR 15 semiautomatic assault rifles .223 inch calibre, two Uzi submachine guns 9mm calibre, three Smith & Wesson 9 mm calibre semi automatic pistols, two Browning semiautomatic pistols 9 mm calibre, five Sig Saur 9mm calibre semiautomatic pistols in such circumstances as to give rise to a reasonable inference that such possession was not for a lawful purpose".

3 3. The Director accepted that plea and entered a nolle prosequi in respect of the other counts. The learned trial judge sentenced the applicant to a term of imprisonment of twelve years with five years suspended.

4 4. The gist of the case against the applicant was that, with others, one of them a co-accused, he conspired to obtain a large cache of weapons and ammunition for the unlawful purposes of a group of people engaged in organised crime in Limerick.

5 5. Virtually all of the evidence resulted from an under-cover operation organised by An Garda Síochána in cooperation with an English law-enforcement body called the Serious Organised Crime Agency (SOCA). Two enforcement officers employed by SOCA, using the cover names, John and Raj, were the State's central witnesses. John and Raj met the applicant at a warehouse in London on 22 ^nd February 2007. They posed as arms dealers. They showed him photographs of weapons on a laptop and quoted prices. They each had a clean mobile phone, which was used solely for contact with the applicant. They supplied the applicant with the numbers for these mobiles. A significant part of the incriminating evidence against the applicant consisted of telephone conversations between the applicant and SOCA agents via these mobiles.

6 6. The applicant has put forward fifteen grounds of appeal. They can be summarised as follows:

1 Four grounds relate to the decision of the learned trial judge to admit evidence of the contents of telephone conversations with the mobile phone numbers supplied by SOCA; the complaint is that the learned trial judge refused to follow the decision of this Court in Director of Public Prosecutions v Dillon [2002] 4 I.R. 501, (hereinafter "Dillon"), holding that case to have been decided per incuriam. The learned trial judge, it is submitted, thereby abandoned the doctrine of stare decisis and accordingly the trial lacked an essential characteristic of a criminal trial in accordance with law.

2 Three grounds relate to rulings of the learned trial judge upholding a claim of privilege advanced by the prosecution with the effect of denying to the defence disclosure of material which was potentially relevant to his guilt or innocence, having regard to the defence which the applicant wished to advance, namely entrapment and abuse of process.

3 It is submitted the learned trial judge effectively directed the proofs of the prosecution in respect of the calling of expert evidence of foreign law regarding the powers of SOCA, while effectively denying that right to the defence by refusing access to the relevant disclosure material.

4 The learned trial judge is said to have erred in refusing to discharge the jury, firstly, by reason of the prejudicial opening speech of the prosecution and, secondly, by reason of adverse media coverage.

5 The learned trial judge, it is submitted, erred in admitting evidence of audio and video recordings of the meeting in the London warehouse mentioned above without proof of the identity of speakers on the tapes and while the recordings contained hearsay evidence.

6 Two general grounds allege absence of equality of arms between prosecution and defence and that the rulings of the learned trial judge meant that the trial was not in accordance with law.

The applicant's right to appeal

7 7. The first and principal matter to be considered is whether, notwithstanding his plea of guilty, the applicant should, exceptionally, be permitted to pursue his appeal. That question depends, in turn, on his contention that he was left with no choice but to plead guilty by reason of an incorrect and unlawful ruling admitting the evidence of the mobile-phone conversations, a ruling made in defiance of the binding decision of this Court in Dillon.

8 8. The applicant's basic point is that the telephone conversations between the applicant and the SOCA agents were unlawfully intercepted for the purpose of the relevant legislation and should have been ruled inadmissible pursuant to the ruling of this Court in Dillon. The applicant had conversations with "John" and "Raj," believing them to be arms dealers, whereas they were in fact law enforcement officers.

The plea of guilty

9 9. The learned trial judge conducted a voir dire. He heard the evidence of "John" and submissions from counsel in the absence of the jury. He ruled that the evidence that had been obtained by means of the mobile phones, notwithstanding the decision in Dillon, was lawfully obtained.

10 10. On the day following that ruling, counsel for the applicant informed the court of trial that he was "under strict instructions to adopt a particular course" on the following Monday. The applicant pleaded guilty, as already stated, and the prosecution entered a nolle prosequi on the other counts.

11 11. The submissions on behalf of the applicant on this application explain the plea of guilty as following from the ruling of the learned trial judge that Dillon had been decided per incuriam. They continue:

"In so deciding he [the trial judge] effectively rendered the doctrine of stare decisis inapplicable. It is submitted that without the phone evidence in the trial…there could have been no trial. As a result of this the appellant (sic) had no option other than to plead guilty. His conviction is unsafe and unsatisfactory.

A trial without the application of the doctrine of stare decisis is not a trial in accordance with the Constitution. No conviction recorded in the case of such a trial is a sound conviction regardless of whether or not the accused pleaded guilty."

12 12. Counsel for both parties have referred the Court to two cases in each of which this Court entertained an appeal notwithstanding a plea of guilty: DPP v B [2002] 2 I.R. 246; DPP v Lynch (Unreported 27 ^th July...