Rozmyslowicz v The Minister for Justice Equality and Defence

JurisdictionIreland
CourtSupreme Court
JudgeClarke C.J.,Dunne J.,O'Malley J.
Judgment Date28 March 2019
Neutral Citation[2019] IESCDET 73
Date28 March 2019

[2019] IESCDET 73

THE SUPREME COURT

DETERMINATION

Clarke C.J.

Dunne J.

O'Malley J.

BETWEEN
JUDYTA ROZMYSLOWICZ
PLAINTIFF
AND
THE MINISTER FOR JUSTICE EQUALITY AND DEFENCE
IRELAND

AND

THE ATTORNEY GENERAL

AND

THE COMMISSIONER OF AN GARDA SIOCHANA
DEFENDANTS
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES
RESULT: The Court does not grant leave to the Applicant to appeal to this Court from the Court of Appeal
REASONS GIVEN:
ORDER SOUGHT TO BE APPEALED
COURT: Court of Appeal
DATE OF JUDGMENT OR RULING: 17th August, 2018
DATE OF ORDER: 1st October, 2018
DATE OF PERFECTION OF ORDER: 30th October, 2018
THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 27th November, 2018 AND WAS IN TIME.
General Considerations
1

1. The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33rd Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions [2017] IESCDET 134 and in a unanimous judgment of a full Court delivered by O'Donnell J. in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. The additional criteria required to be met in order that a so-called “leapfrog appeal” direct from the High Court to this Court can be permitted were addressed by a full panel of the Court in Wansboro v Director of Public Prosecutions (2017) IESCDET 115. Accordingly it is unnecessary to revisit the new constitutional architecture for the purpose of this determination.

2

The application for leave filed, and the respondent's notice thereto, are published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties in detail.

3

This application by the defendants arises from an action for damages for assault and breach of constitutional rights. While the action was dismissed in the High Court (Fullam J., unrep., 13th April, 2016) the Court of Appeal allowed the plaintiff's appeal and ordered that the matter be remitted to the High Court for the assessment of damages. The defendants seek leave to appeal against that decision. The judgment may be found at [2018] IECA 289.

Background
4

The incident giving rise to the proceedings occurred when a number of gardaí entered the plaintiff's home without her consent, in a manner occasioning her a degree of injury. It is common case that there was in existence at the time a warrant for the arrest of the plaintiff's partner. The plaintiff told the gardaí that her partner was not there and, as it transpired, he was not in the house. As the gardaí did not have the warrant with them, the lawfulness of their actions depended upon the applicability of s.6(1) of the Criminal Law Act 1997. That subsection provides that for the purpose of arresting a person in respect of whom there is a warrant, a garda may enter and search any premises, including a dwelling, where the person is or where the garda ‘with reasonable cause’ suspects them to be.

The High Court
5

The evidence adduced in the case is extensively described in the judgments of the trial judge and Court of Appeal and it is not necessary to summarise it in any great detail here. For present purposes the main point to note in respect of the plaintiff's evidence is that the cross-examination appears to have concentrated on the reasonableness or otherwise of her own actions, and the exact extent of her injury. However, it was not suggested to her that there was any serious factual dispute on either the essentials of her account of what had happened at the house – that the gardaí thought they had seen a ‘movement’ at an upstairs window and did not believe her statement that it was her dog; that there had been a forcible entry; that she had been physically restrained; and that an injury had been caused to her by the gardai pushing in the door.

6

At the close of the plaintiff's case the defence applied for, but did not obtain, a direction or non-suit. The defence went into evidence, calling two of the gardaí involved in the incident. It seems clear that they agreed with the proposition that the information in their possession did not, as of the time of their arrival at the house, amount to sufficient grounds for suspicion to confer a lawful power to enter without consent. However, they gave evidence that was materially in conflict with that of the plaintiff, including a number of key matters that had never been put to her. The most significant of these were that one of the...

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