People v Van Onzen

• Jurisdiction: Ireland
• Judge: O'Flaherty J.
• Judgment Date: 01 January 1996
• Neutral Citation: 1996 WJSC-CCA 911
• Court: Court of Criminal Appeal
• Docket Number: 42/94
• Date: 01 January 1996

1996 WJSC-CCA 911

THE COURT OF CRIMINAL APPEAL

O'Flaherty J.,

Barr J.,

Flood J.,

42/94

41/94

DPP v. VAN ONZEN & LOOPMANS

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLICPROSECUTIONS

AND

EGBERTUS MARIUS VAN ONZEN

AND

FRANK CATHARINA LOOPMANS

Applicants

Citations:

MISUSE OF DRUGS ACT 1977 S3

MISUSE OF DRUGS ACT 1977 S15

CRIMINAL JUSTICE ACT 1984 S4

MARITIME JURISDICTION ACT 1959 S11

MINISTERS & SECRETARIES ACT 1924 S15

MARITIME JURISDICTION ACT 1959 S13

MARITIME JURISDICTION ACT 1959 (CHARTS) ORDER 1959 SI 174/1959

CRIMINAL JUSTICE ACT 1984 (TREATMENT OF PERSONS IN CUSTODY IN GARDA SIOCHANA STATIONS) REGS 1987 SI 119/1987 REG 4

CRIMINAL JUSTICE ACT 1984 S7(3)

DPP, PEOPLE V BUCKLEY 1990 1 IR 14

COURTS OF JUSTICE ACT 1928 S5

MISUSE OF DRUGS ACT 1977 S15(1)

MISUSE OF DRUGS ACT 1977 S5

MISUSE OF DRUGS ACT 1977 S5(1)(a)

MISUSE OF DRUGS REGS 1988 SI 328/1988 REG 4(1)

DPP, PEOPLE V MURRAY 1977 IR 360

CRIMINAL JUSTICE ACT 1964

OFFENCES AGAINST THE PERSON ACT 1861 S38

FIREARMS ACT 1925 S15

FIREARMS ACT 1971 S4

R V EL-HAKKAOUI 1975 2 AER 146

FIREARMS ACT 1968 S16

Synopsis:

ALIENS

Prosecution

Certificate - Issue - Necessity - Offence - Place - Foreign ship within territorial seas - Possession of cargo of cannabis resin on yacht within territorial seas of the State - Conviction upheld - (41,42/94 - Court of Criminal Appeal - 5/12/95)- [1996] 2 ILRM 387

|The People v. Van Onzen

|The People v. Loopmans|

CRIMINAL LAW

Offence

Commission - Place - Relevance - Drugs - Possession - Charge that accused possessed controlled drug for purpose of supplying it to another - Absence of evidence that accused intended to supply drug to person in the State - Such intention irrelevant to proof of commission of offence - Possession of cargo of cannabis resin on yacht within territorial seas of the State - Conviction upheld - (41,42/94 - Court of Criminal Appeal - 5/12/95)- [1996] 2 ILRM 387

|The People v. Van Onzen

|The People v. Loopmans|

EVIDENCE

Admissibility

Statement - Suspect - Incrimination - Trial - Statement excluded - Second inculpatory statement of suspect admitted in evidence - No duress or inducement invalidating first statement so as to infect second statement - (41,42/94 - Court of Criminal Appeal - 5/12/95) - [1996] 2 ILRM 387

|The People v. Van Onzen|

|The People v. Loopmans|

EVIDENCE

Territorial seas

Boundary - Proof - Charts - Admissibility - Admiralty charts prescribed by statutory instrument for purpose of ascertaining limits of such seas - Offence of possession of controlled drug for the purpose of supplying it to another - Absence of evidence that accused intended to supply drug to person in the State - Such intention irrelevant to proof of commission of offence - Possession of cargo of cannabis resin on yacht within territorial seas of the State - Conviction upheld - (41,42/94 - Court of Criminal Appeal - 5/12/95) - [1996] 2 ILRM 387

|The People v. Van Onzen|

|The People v. Loopmans|

GARDA SIOCHANA

Powers

Suspect - Detention - Authorisation - Garda station - Member in charge empowered to authorise detention for limited period - Garda acted as member in charge without being so appointed - Detention of suspect not unlawful - (41,42/94 - Court of Criminal Appeal - 5/12/95) - [1996] 2 ILRM 387

|The People v. Van Onzen

|The People v. Loopmans|

CRIMINAL LAW

Courts

Jurisdiction - Offence - Place - Relevance - Offence of posses sion of controlled drug for the purpose of supplying it to an other - Absence of evidence that accused intended to supply drug to person in the State - Such intention irrelevant to proof of commission of offence - Possession of cargo of cannabis resin on yacht within territorial seas of the State - Conviction upheld - (41,42/94 - Court of Criminal Appeal - 5/12/95) - [1996] 2 ILRM 387

|The People v. Van Onzen|

|The People v. Loopmans|

CRIMINAL LAW

Drugs

Possession - Purpose - Sale - Supply - Sale or supply to another person - Whether necessary to establish that intended sale or supply was to be effected in the State - Offender - Statement - Admissibility - First statement ruled inadmissible as evidence - Second inculpatory statement not contaminated by reason for exclusion of first statement - Proof of extent of territorial seas - Admiralty charts admissible in evidence - Maritime Juris diction Act, 1959 (Charts) Order, 1959 (S.I. No. 174) - Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Siochana Stations) Regulations, 1987 (S.I. No. 119), article 4 - Misuse of Drugs Regulations, 1988 (S.I. No. 328), article 4 - Courts of Justice Act, 1928 (No. 15), s. 5 - Maritime Jurisdic tion Act, 1959 (No. 22), ss. 10, 11, 13 - Misuse of Drugs Act, 1977 (No. 12), ss. 3, 5, 15 - Criminal Justice Act, 1984 (No. 22), ss. 4, 7 - (41,42/94 - Court of Criminal Appeal - 5/12/95)

|The People v. Van Onzen|

|The People v. Loopmans|

MINISTER OF STATE Seal Authentication - Evidence - Officer - Testimony - Sufficiency - Certificate of Minister authorised prosecution of alien for offence committed on foreign ship within territorial seas - Possession of cargo of cannabis resin on yacht within territorial seas of the State - Conviction upheld - (41,42/94 - Court of Criminal Appeal - 5/12/95) - [1996] 2 ILRM 387

|The People v. Van Onzen|

|The People v. Loopmans|

1 Judgment of the Court delivered the5th day of December,1995by O'Flaherty J.

2 On the 23rd March, 1994, after a 14 day trial held before His Honour Judge Kevin O'Higgins and a jury at Tralee Circuit Criminal Court, the applicants were found guilty of simple possession, contrary to s. 3 of the Misuse of Drugs Act, 1977and possession with intent to supply, contrary to s. 15 of the same Act of a large quantity of a controlled drug, namely, cannabis resin, on the 13th July, 1993 within the territorial waters of the State, off LoopHead, Co. Clare. They were sentenced to seven years and ten years imprisonment on the respective counts. Two other accused were dealt with on pleas of guilty.

3 The background facts of the case are as follows. Inspector James Fitzgerald, Head of the Drugs Squad of the Garda Siochana, in Co. Kerry, by the 12th July, 1993 had come into possession of an Eircell mobile telephone. He had grounds for believing that this phone would be called to from a vessel off shore.

4 So it came to pass. At that time the yacht Brime, with four people on board, was hovering on the seas off Loop Head, Co. Clare. Inspector Fitzgerald had a number of conversations with a man known as "Gerry". This turned out to be one Gerry Fitzgerald. Inspector Fitzgerald, it is fair to say, did not disclose his identity but, on the contrary, led those on board the Brime to believe that he was their contact man on shore.

5 The Brime was observed also by a number of local fishermen at this time about four miles or so inside territorial waters.

6 At 10.00 pm on the 12th July, Gerry called and asked whether he (the Inspector) was making arrangements for the rescue of the cargo from the Brime and was assured that he was. Some short time after this (at 10.30 pm) Mr. Tommy Kelly, who was fishing off Loop Head, saw the Brime four or five miles north of a position where he had previously observed the vessel — at which stage it is possible that she was outside territorial waters.

7 Lieutenant Commander Mark Mellet in charge of the naval vessel L.E. Orla with Sergeant Christopher McCarthy on board (he was performing fishery protection duties as it happened) went in search of the Brimeon July 13th. At 4.30 am he made contact by radar with the Brime. It was then 4.4 miles inside territorial waters and 7.6 miles west-north-west of Loop Head. At 5.00 am the Brime was visible to Commander Mellet and his crew.

8 Two inflatable craft were launched with Sergeant McCarthy on board one backed up by members of the navy. The Brime attempted to ram his craft. The Sergeant with his naval backers boarded the Brime. Mr. Van Onzen was at the wheel. It was discovered that an attempt was being made to scuttle the vessel and a valve had been opened to admit water. This attempt was foiled. He was put under arrest. The other three, Loopmans, Gerry Fitzgerald and Wayne Bland ran below decks. All four were apprehended and bound hand and foot and placed on the deck of the yacht.

9 On board the Brime, which was a medium size yacht, was a total of 1,950 kilograms of cannabis resin, with a street value of aboutIR£19.5m.

10 At 9.00 am the L.E. Orla with the four prisoners on board, and escorting the Brime, anchored at Fenit Harbour. At 9.42 am the prisoners were brought to Tralee Garda Station. Both accused requested a solicitor within a short time of their arrival at the station. The detention of the accused for six hours wasauthorised by Garda Brendan Herbert who gave evidence, in due course, that he was the member in charge at Tralee Garda Station at the time. He granted the application for the detention of the accused at the station under the powers conferred on him by s. 4 of the Criminal Justice Act, 1987 on the grounds that it was necessary for the proper investigation of the offence in respect of which the accused were arrested. He was cross-examined at some length and Mr. White made certain submissions to us, that in some way Garda Herbert did not apply a proper judgment to the matter. Garda Herbert testified that he thought that the further investigations would centre on determining where these drugs originated; who was the person behind them and where they were destined to go and who received them and for those persons (the accused) to account for their movements. It seems to the Court that this was a very proper exercise of his judgment; for the garda to do anything else in the circumstances of this case would have been the height of folly. At 11.20 am the time for detention wasextended for a further six hours by Superintendent Garvey.

11 At 5.45 pm the accused were released from their Criminal Justice Act, 1984...