Sunny Idah v DPP

• Jurisdiction: Ireland
• Judge: MacMenamin.J.
• Judgment Date: 23 January 2014
• Neutral Citation: [2014] IECCA 3
• Court: Court of Criminal Appeal
• Date: 23 January 2014

[2014] IECCA 3

COURT OF CRIMINAL APPEAL

MacMenamin J.

Herbert J.

de Valera J.

CCA No. 164/2012

Idah v DPP

BETWEEN

SUNNY IDAH

APPLICANT/APPELLANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

CRIMINAL JUSTICE (SURVEILLANCE) ACT 2009 S1

CRIMINAL JUSTICE (SURVEILLANCE) ACT 2009 S2(2)

CRIMINAL JUSTICE (SURVEILLANCE) ACT 2009 S5(6)

TELECOMMUNICATIONS MESSAGES (REGULATION) ACT 1993 S1

KENNEDY v IRELAND 1987 IR 587

KANE v GOVERNOR OF MOUNTJOY PRISON 1988 IR 757

LUDI v SWITZERLAND 1992 50 EHRR 173

SAVOY HOTEL COMPANY v LONDON COUNTY COUNCIL 1900 1 QB 665

LINDSAY & ORS v CUNDY & ANOR 1876 1 QBD 348

BRADLEY v BAYLIS 1881 8 QBD 195

CRIMINAL JUSTICE (SURVEILLANCE) ACT 2009 S14(2)

DPP v MOOREHOUSE 2006 IR 421

CRIMINAL JUSTICE (SURVEILLANCE) ACT 2009 S14(4)

CRIMINAL JUSTICE (SURVEILLANCE) ACT 2009 S14(4)(A)

CRIMINAL JUSTICE (SURVEILLANCE) ACT 2009 S14(4)(B)

CRIMINAL JUSTICE (SURVEILLANCE) ACT 2009 S7(2)

DPP v BYRNE 2003 4 IR 423

CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 2006 S8(2)

Criminal law – Unlawful importation of a controlled drug - Solicitation - Surveillance - Evidence - Admissibility of evidence - Discretion to admit evidence - Authorisation and approval - Appeal - Urgency - Right to privacy - Constitution of Ireland - Criminal Justice (Surveillance) Act 2009

Facts: On the 3 ^rd April 2012, the appellant was convicted by a jury of two counts of soliciting another to commit the offence of unlawful importation of a controlled drug. He was sentenced to twelve years imprisonment. The prosecution alleged that the appellant had solicited two undercover Gardaí to import controlled drugs into the State by seeking to induce them to travel to Brazil and smuggle back 1kg of cocaine each. The solicitation was said to have occurred the 14th and 19th September 2010, during which the appellant was allegedly in contact with the undercover Gardaí 24 times. During the trial, audio recordings and transcripts of these contacts were put in evidence.

The appellant brought an appeal to the Court of Criminal Appeal arguing, inter alia, that the audio recordings and transcripts of the appellant”s contacts with the undercover Gardaí were inadmissible as evidence because they had been obtained in circumstances where there was non-compliance with the provisions of the Criminal Justice (Surveillance) Act 2009 (‘the 2009 Act’). It was undisputed that the undercover Gardaí had been authorised by a District Judge to install a surveillance device within a room in the Regency Hotel for the period of the 14th to the 18th September 2010. However, the contacts with the appellant had not occurred in this room at any time. On the 19th September 2010, an approval was granted by a senior member of the Gardaí to continue using the surveillance device for that day. However, no attempt had been made on the 17th, 18th or 19th September 2010 to obtain further judicial authorisation. It was argued by the appellant that the admission of all of this evidence should have been excluded as having been unconstitutionally obtained in breach of the appellant”s right to privacy. The prosecution argued that the trial judge had been entitled to admit the evidence because it had not been gathered as a result of surveillance, and so the 2009 Act had not been breached. It was agreed between the parties that if it was found that this evidence was inadmissible, a re-trial should be directed.

Held by MacMenamin J. (with Herbert J. and de Valera J. concurring) that whilst the appellant had a general right to privacy, it was not specifically guaranteed by the Constitution of Ireland and was not absolute. However, it was also said that the right to privacy was a personal right of every member of the State and that the 2009 Act had been enacted to indicate the circumstances where public authorities were entitled to use covert measures to gather evidence in breach of that right.

It was clear from the 2009 Act that where Gardaí wished to gather evidence with the use of a surveillance device, the proper authorisation was required. The prosecution had argued that such authorisation had not been required because the surveillance device had not been used to gather the evidence in question. The appellant had three face-to-face meeting with the undercover Gardaí, and it was held that these exchanges could not be described as surveillance because the Gardaí could testify to what was said. This evidence fell outside the ambit of the 2009 Act and was, therefore, admissible.

In regards to the evidence of audio recordings and transcripts that had been gathered outside the authorised room at the Regency Hotel, it was said that this evidence was not automatically inadmissible pursuant to s. 14(4) of the 2009 Act. That subsection outlined how the trial judge had a discretion to admit evidence that had been gathered in breach of the requirements of the Act if it was shown that the member or officer concerned acted in good faith and that the failure was inadvertent, and that the evidence ought to be admitted in the interests of justice. It was held that the Court would not interfere with the trial judge”s application of this test unless a manifest error was apparent. It was clear that there was no bad faith on the part of the Garda in gathering the evidence and that it could be argued that it was in the public interest to admit it given its probative value. As a result, it was held that the Court was not convinced that a manifest error has been shown in the trial judge”s reasoning and, therefore, it would not interfere with his decision to admit the transcripts of the recordings in question.

In regards to the evidence that had been gathered on the 19 ^th September 2010 with approval of a senior member of the Gardaí, it was said that pursuant to s. 7(2) of the 2009 Act, the approval could only have been granted if the senior Gardaí had been satisfied that one or more conditions of urgency as outlined in the subsection applied. However, the approval had been granted without there being any note of which condition(s) of s. 7(2) it was based on. Likewise, there had been no evidence of this nature given by Gardaí at trial. It was, therefore, held that the evidence that had been gathered on that day had been obtained without valid approval. Because there was no statutory discretion to admit this evidence, it was held that it should have been deemed inadmissible at trial.

Conviction quashed and re-trial ordered.

1 1. On the 3 ^rd April, 2012, the appellant was convicted by a jury after a 16 day trial of two counts on an indictment, to wit, soliciting another to commit the offence of unlawful importation of a controlled drug, and soliciting another to commit the offence of the unlawful importation of a controlled drug having a value in excess of €13,000. He was sentenced to 12 years imprisonment (the final year suspended) in respect of the first count; and 15 years imprisonment (the final two years suspended), in respect of the second count on the 18 ^th May, 2012.

2 2. The prosecution case was that the appellant solicited two undercover Gardaí (UC1 and UC2) to import controlled drugs into the State by seeking to induce both Gardaí to fly to Brazil for the purpose of ingesting pellets to a total weight of 1 kilogram of cocaine each, so as to transport the drugs back into this State undetected. The evidence was the solicitation occurred between the 14 ^th and 19 ^th September, 2010, within the State, during which time it is said the appellant had 24 separate contacts with UC1 and/or UC2.

3 3. The two Gardaí were detailed to pose as Polish drug couriers. They were provided with a Polish mobile phone and a contact number (the "8883" number) for a contact referred to as "Teemore". The 24 contacts said to have occurred with the appellant included three face to face meetings on the 15 ^th, 17 ^th and 19 ^th September, 2010. During the course of the contacts, it is said the appellant gave UC1 and UC2 money to pay for their hotel, to feed themselves, and supplied two airline tickets to Brazil, together with $1,000 in cash. It is said discussions took place as to the amount of drugs to be ingested, the form and weights in which the drugs would be packaged, the hotel where they were to stay, what both carriers would do on the journey, and how they would liaise on their return to this jurisdiction.

4 4. The central focus of this judgment relates to the fact that these contacts were recorded, and audio recordings and transcripts of these were put in evidence at the trial. Both UC1 and UC2 verified the contents of the recordings and transcripts in their evidence. Neither UC1 nor UC2 gave viva voce evidence of the entirety of the conversations between themselves and the accused at the trial, but, rather, simply verified the transcripts of the conversations which were given to the jury despite objections by counsel for the appellant.

Agreed stance of the parties

5 5. A wide number of issues were to be canvassed in the appeal but it was agreed between the parties that, were the court to conclude that evidence elicited from the recordings themselves was inadmissible, then, the appropriate course would be to direct a re-trial of the appellant. This argument occupied the full day that was assigned to the entire appeal. It must be clearly understood that this judgment, on this one issue, does not determine any issue regarding the admissibility otherwise of viva voce evidence from members of An Garda Siochana involved in interactions with the appellant. Such viva voce evidence was not adduced at the trial; rather, the Gardaí involved in the operation simply made reference to transcripts of the recordings, which were admitted in evidence and read to the jury.

What is in issue in this judgment

6 6. It was agreed that matters...