Rozmyslowicz v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 17 August 2018
• Neutral Citation: [2018] IECA 289
• Court: Court of Appeal (Ireland)
• Docket Number: [C.A. No. 267 of 2016],Neutral Citation No: [2018] IECA 289 Record No. 2016/267
• Date: 17 August 2018

BETWEEN:

JUDYTA ROZMYSLOWICZ

APPELLANT

- AND -

THE MINISTER FOR JUSTICE AND EQUALITY,

IRELAND, THE ATTORNEY GENERAL & THE COMMISSIONER OF AN GARDA SÍOCHÁNA

RESPONDENTS

[2018] IECA 289

Neutral Citation No: [2018] IECA 289

Record No. 2016/267

THE COURT OF APPEAL

Forcible entry – Trespass – Reasonable cause – Appellant seeking damages for trespass – Whether the respondents had reasonable cause to effect forcible entry

Facts: Members of An Garda Síochána entered the dwelling of the plaintiff/appellant, Ms Rozmyslowicz, at 7 The Grove, Sallins, Co. Kildare on 19th August 2012 without her consent. The plaintiff claimed damages for trespass and for personal injuries sustained as a result of the forcible entry. She also claimed damages for violation of constitutional rights. On 13th April 2016 Fullam J dismissed the plaintiff's claim. The plaintiff appealed to the Court of Appeal against that decision. The appeal turned on the question of whether the Gardaí had "reasonable cause" within the meaning of s. 6(1) of the Criminal Law Act 1997 to effect the forcible entry.

Held by Hogan J that, in the circumstances of this case, viewed objectively, the Gardaí had not discharged the evidential burden of demonstrating that they had a reasonable cause to believe that Mr Snaidy was present in that dwelling for the purposes of s. 6(1) of the 1997 Act such as would justify the forcible entry of the plaintiff's dwelling.

Hogan J held that he would allow the appeal and remit the case to the High Court for an assessment of damages.

Appeal allowed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 17th day of August 2018

1 The plaintiff, Ms. Rozmyslowicz, is a Polish national who has lived and worked in Ireland for some time. The present proceedings arise from the actions of members of An Garda Síochána who entered the plaintiff's dwelling at 7 The Grove, Sallins, Co. Kildare on Sunday, 19th August 2012. It is common case that members of An Garda Síochána entered the plaintiff's dwelling on that day and that they did so without her consent. The essential issue, both in the High Court and in this Court, was whether the actions of the Gardaí in effecting this search in this manner were lawful. The Garda case is based on the provisions of s. 6(1) of the Criminal Law Act 1997 ('the 1997 Act'), provisions to which it will be necessary to return in more detail at a later point in this judgment.

2 In a lengthy and comprehensive judgment delivered on 13th April 2016 Fullam J. dismissed the plaintiff's claim. The plaintiff has now appealed to this Court against that decision. The issues which arise on this appeal are, however, difficult and are not straightforward.

The background to the present proceedings

3 The events giving rise to these proceedings may be said to have started on 16th February 2012. On that day members of An Garda Síochána came to the plaintiff's home with a European Arrest Warrant in respect of her then partner, Mr. Sebastian Snaidy. Mr. Snaidy was arrested and taken by Gardaí to Dublin. It is accepted that Mr. Snaidy was then brought before the High Court and that he was released on bail to Ms. Rozmyclowich's address. The plaintiff gave evidence in the present proceedings to the effect that she knew that Mr. Snaidy would have to return to the High Court in July 2012.

4 According to the plaintiff, Mr. Snaidy decided on the morning of that Court hearing on Tuesday 24th July 2012 to return to Poland and brought a suitcase of clothes with him as he left. Some time after noon on that day, two Gardaí called to the plaintiff's home and inquired as to Mr. Snaidy's whereabouts. She stated that she believed that Mr. Snaidy had travelled to Dublin to attend court, but the Gardaí informed her that he had not done so. The plaintiff then said that Mr. Snaidy must have travelled to Poland. The Gardaí then asked her about the motor vehicle in the driveway, but she stated that Mr. Snaidy had transferred the vehicle to her.

5 It is the events of 19th August 2012 which are, however, central to this appeal. The plaintiff stated that she was in bed in her pyjamas at around noon when she heard a ring on the doorbell. She was alone in the house at the time, save that her pet dog was also present in the house. The house itself appears to be a standard two storey semi-detached dwelling of relatively modest dimensions with a driveway sufficient to accommodate one car and a front garden of commensurate size.

6 Ms. Rozmyslowicz looked out of an upstairs window whereupon she saw two men in t-shirts whom she did not recognise. She went downstairs to open the door, but, in order to prevent the dog escaping she opened the door only slightly so that she could peer out. The two men in t-shirts identified themselves as Gardaí by showing identification badges and two uniformed Garda personnel were also present. The Gardai told her that they were there to search for Mr. Snaidy. The plaintiff responded by saying that he was not present and demanded to see a copy of any warrant they might have.

7 The Gardai did not, however, have a copy of any warrant in their possession and the plaintiff refused to give them consent to search the premises. At this point the plaintiff's dog went upstairs and jumped up onto a bed which was based beside a window ledge. There was a net curtain on the window and the dog may perhaps have rustled the curtain as it endeavoured to look out.

8 At that point one of the Gardaí, Garda O'Sullivan, said something to the effect that she saw some movement at the window upstairs. The plaintiff replied by saying that this was her dog. At that point one of the Gardaí started pushing the door (which was only slightly ajar) and as the door was pushed forward against the plaintiff's right foot, she fell and injured her ankle. The Gardaí then entered the dwelling, with one going into the back garden and the two other going upstairs. The other Garda, Garda O'Sullivan, subdued the dog. It was clear as a result of the search that no person other than Ms. Rozmyslowicz was present in the house at the time it was searched.

9 The plaintiff claims damages for trespass and for personal injuries sustained as a result of the forcible entry. She also claims damages for violation of constitutional rights.

The course of evidence in the High Court

10 It is next necessary to consider the course of evidence in the High Court. After the plaintiff had given evidence, the State parties applied for a direction on the ground that there was no case to answer. After considering the matter overnight, Fullam J. refused the application on the ground that there was a case to answer. The defendants then went into evidence.

The evidence of Detective Garda Hanrahan

11 Detective Garda Hanrahan gave evidence that he was responsible for the execution of European arrest warrants in the Naas district. He had previously arrested Mr. Snaidy in respect of the EAW warrant in February 2012 and he was aware that Mr. Snaidy had given this address when granted bail.

12 The next development was that he had been made aware that Mr. Snaidy had failed to appear at the High Court hearing and that a bench warrant had been issued for his arrest by Edwards J. He was then given responsibility for the execution of that warrant. Detective Garda Hanrahan then checked the Garda PULSE intelligence system to ascertain the later intelligence on Mr. Snaidy. Early on the morning of Sunday, 19th August 2012 Detective Garda Hanrahan drove by the house and noticed that Mr. Snaidy's red BMW motor vehicle was still parked outside the door. He then assembled a Garda team to go to search the premises.

13 When the door was opened by Ms. Rozsmyslowicz, it was opened only to the extent that it allowed her to peer out. Detective Garda Hanrahan explained that there was a warrant for the arrest of Mr. Snaidy, but the plaintiff kept repeating that he was not there. Detective Garda Hanrahan then asked whether, if he was not there, 'can I come in and have a quick look?' The plaintiff refused this request, saying that the Gardaí would have to produce a warrant.

14 Detective Garda Hanrahan said that he then heard one of his colleagues, Garda O'Sullivan, say that she had seen a hand moving the net curtains upstairs. He asked the plaintiff who was upstairs, but she denied that there was anyone else in the house, that she was alone there with her dog and repeated her insistence that the Gardaí could not enter the dwelling without a warrant. Detective Garda Hanrahan then said that he had reasonable grounds to believe that Mr. Snaidy was in the house and that he was now entitled to enter. He denied in evidence that he had used force or that he had injured the plaintiff during the course of the entry into the dwelling. A thorough search of the premises revealed nothing of interest to Gardaí.

15 Garda Joanne O'Sullivan was the other witness for the defence. She stated that she had remained at the front of the driveway when Detective Garda Hanrahan and Detective Sergeant McHale went to the front door. She stated that she noticed a hand moving the net curtain in the window of the top left of the house. She relayed this information to Detective Garda Hanrahan who then put this to the plaintiff. Garda O'Sullivan then said she heard the plaintiff explaining that there could not have been a hand at the window and that must have been her dog. Garda O'Sullivan then repeated that she had seen a hand and that at that point the Gardaí entered the dwelling.

The failure to put certain matters in cross-examination

16 One unsatisfactory aspect of the proceedings in the High Court was that it emerged during the course of the defendants' evidence in chief that certain key aspects of their case were not put in cross-examination to the plaintiff. These omissions included the failure to suggest that Garda O'Sullivan had positively seen a hand - rather than simply...