The People (DPP) v Kearney

 
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[2015] IECA 64

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Edwards J.

345/12

The People at the Suit of the Director of Public Prosecutions
and
Michael Kearney
Appellant

Conviction – Stolen Property - Criminal Justice (Theft and Fraud Offences) Act 2001 – Error in Law – Evidence – Practice and Procedures – Merit – Lawful Search and Arrest

Judgment of the Court delivered on the 5th day of February 2015, by Mr. Justice Sheehan
1

On the 28th November, 2012, the appellant Michael Kearney was convicted on two counts of possession of stolen property contrary to s. 18 of the Criminal Justice (Theft and Fraud Offences) Act 2001, following an eight day trial before the Circuit Criminal Court sitting at Clonmel, Co. Tipperary, when he was tried along with two co-accused. A sentence of four years imprisonment, with the final two years suspended, was imposed by the learned trial judge on both counts.

2

The appellant now appeals the said convictions only to this Court and contends that these convictions should be set aside on the following grounds:

1. The learned trial judge erred in law and in principle in admitting into evidence the surveillance of Det. Sgt. Calmey.

2. The learned trial judge erred in law and principle in deeming the search of the appellant's motor vehicle a lawful and constitutional search.

3. The learned trial judge erred in law and principle in deeming the arrest of the appellant to be lawful and constitutional.

Background
3

The background to this case is that there was an ongoing investigation by members of An Garda Siochána into an aggravated burglary on the 31st October, 2007, at the premises of Securispeed, Brook Lodge East, Glanmire Co. Cork. During the course of the burglary some members of staff were tied up and different products that were being stored there were loaded onto a lorry and driven away.

Relevant Evidence
4

Det. Sgt. Calmey told the jury that he took up duty at 8.25 am on the 27th November, 2007 at Heuston Station, where he observed Christopher Sheehan and Barry Hayes getting off the Cork to Dublin train. He observed these two men taking the Luas to The Square at Tallaght and observed them a short time later in a white Mercedes van being driven by a third man. They drove to an address in Tallaght, where the van was parked for 15 minutes. He then saw Christopher Sheehan driving this white van with Barry Hayes as his passenger. He observed them going from there to Newlands Cross, leaving Newlands Cross at about 12.50 pm and arriving in Carrick on Suir, where they parked the vehicle near the SuperValu car park. He said that both men walking to the car park and the next observation he made was that he saw the two men in a Ford Focus...

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