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

Facts: In this case the appellant was convicted on two counts of possession of stolen property contrary to s 18 of the Criminal Justice (Theft and Fraud Offences) Act 2001. A sentence of four years imprisonment, with the final two years suspended, was imposed by the learned trial judge on both counts. The appellant appealed the said convictions and submitted that they 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; and (3) The learned trial judge erred in law and principle in deeming the arrest of the appellant to be lawful and constitutional.

Held by Justice Sheehan in light of the available evidence and submissions presented that the evidence of Det. Sgt. Calmey did not breach any privacy right of the appellant. The evidence demonstrated the connection between the vehicles excluding any suggestion that the vehicles driving in close proximity to each other was coincidental and also demonstrated a connection between the three co-accused. The court held that the evidence was clearly relevant in contextualising the circumstances in which the appellant was found to be in possession of stolen property and that the learned trial judge was correct in admitting the said evidence. Given that Chief Superintendent Hayes had explained his business to Michael Kearney, it was reasoned that he was perfectly entitled to open the rear door of the vehicle. Once he saw what goods were there, there was no need to search the vehicle and, in the particular circumstances of this case, the learned trial judge was correct in holding that the actions of the Gardai did not constitute a search. Accordingly, Justice Sheehan held that the inspection of the vehicle was lawful. It was further reasoned that as a result of Chief Superintendent Hayes explaining to Michael Kearney what his business was, along with the failure of Michael Kearney to express any objection, the learned trial judge was entitled in any event to conclude in the particular circumstances of this case, that the appellant had acquiesced to what occurred and that what followed, be it a search or a simple inspection, was lawful. Thus, the arrest was also deemed to be lawful. Accordingly, the Court dismissed the appeal.

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...

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