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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> D.P.P. v. Heaphy [1999] IEHC 98 (9th February, 1999) URL: http://www.bailii.org/ie/cases/IEHC/1999/98.html Cite as: [1999] IEHC 98 |
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1. These
proceedings come before the Court by way of a Consultative Case Stated by the
President of the District Court pursuant to Section 52(1) of the Courts
(Supplemental Provisions) Act 1961. Section 52(1) of the said Act of 1961
provides as follows:-
2. The
questions of law put to this Court by the learned President of the District
Court arise from the prosecution before him at the District Court at Anglesea
Street, Cork, of the accused John Heaphy. Mr Heaphy was charged with two
offences under the Misuse of Drugs Acts. The summonses setting out the two
charges are annexed to the Case Stated.
3. At
the hearing before the learned President the Prosecutor was represented by
Superintendent P. J. Brennan of Mayfield Garda Station in the City of Cork.
The accused was represented by Mr Frank Buttimer, Solicitor, of 19 Washington
Street, Cork. At the outset Mr Buttimer on behalf of his client indicated to
the Court that he was challenging the validity of the issue of a search warrant
about which evidence was to be given by the Prosecution. The Court embarked on
hearing the evidence of Garda John Sheedy in relation to the facts of the case
and Mr Buttimer again indicated to the Court that he was objecting to the
introduction of any evidence being offered by Garda Sheedy which resulted from
the execution of the search warrant. This search warrant had been obtained by
Garda Sheedy from Mr Denis Forde, Peace Commissioner. The President of the
District Court indicated that he would continue to hear the evidence of Garda
Sheedy and would hear relevant submissions in relation to the matter at the
conclusion of Garda Sheedy's evidence. He adopted this course without
prejudice to the right of the accused's Solicitor to challenge the
admissibility of the evidence obtained on foot of the search warrant.
4. The
learned President of the District Court then sets out in numbered paragraphs
the evidence which was given before him as follows:
5. The
learned President then points out that Mr Denis Forde, Peace Commissioner, was
deceased at the time of the hearing before him and consequently the prosecution
was not in a position to ensure his attendance before the Court. The learned
President then goes on to summarise the submissions made by Mr Buttimer on
behalf of his client in regard to the alleged invalidity of the search warrant
and the necessity to have the Peace Commissioner present in person in Court to
give evidence in regard to his issuing of the warrant and his state of mind at
the time. He also summarises the replies given by Superintendent Brennan on
behalf of the Director of Public Prosecutions . There is no need to detail
these submissions here since they are covered by the submissions made before me
by Counsel for the accused and Counsel for the Director of Public Prosecutions.
6. Having
heard the submissions the President of the District Court agreed to state a
consultative case to this Court and adjourned the trial before him pending the
determination of the case stated. He then sets out the questions of law on
which he requests the assistance of this Court. They are as follows:-
7. The
information sworn by Garda Sheedy is annexed to the Case Stated. This is set
out in a printed form with the relevant information written in by hand. It
states as follows:-
9. The
search warrant is also annexed to the case stated and again it is a printed
form
with the relevant information written in in handwriting. The relevant
part
reads as follows:
10. The
remainder of the warrant is in the customary form. It is dated the 3rd June
1995 and signed by Denis Forde, Peace Commissioner.
11. Counsel
for Mr Heaphy, the accused, submitted that it was essential to the validity of
the search warrant that the Peace Commissioner himself be satisfied of the
grounds on which the Garda suspected that a controlled drug was on the premises
at Rathpeacon Road. He relied as an authority for this submission on
Byrne
v Grey
[1988] 1 IR 31 and
DPP
v Kenny
[1990] ILRM 569. He stressed the importance of the inviolability of the
dwelling of every citizen and referred to Article 40.5 of the Constitution.
This led to the need for a strict interpretation of any rule in regard to the
validity of search warrants and he here referred to the judgment of Carney J in
DPP
v Dunne
[1994] 2 IR 539. Counsel for the accused submitted that in addition to these
requirements it was necessary for the Peace Commissioner who issued the warrant
to be present in Court and to give evidence of his state of mind and the
reasons why he was personally satisfied by the information sworn before him by
Garda Sheedy. In regard to this point of his submission he drew the attention
of the Court to the judgment of the Supreme Court in
DPP
v Byrne
[1989] ILRM 613. In that case the accused had been arrested under Section 30
of the Offences Against the State Act 1939. His initial period of detention
had been extended for a further four hours by a Garda Chief Superintendent.
During the period of extended detention an inculpatory statement was made by
the accused which the prosecution wished to adduce in evidence. The Chief
Superintendent was no longer alive at the date of the trial and no evidence
could therefore be adduced as to the state of his mind when directing the
extension period. Accordingly, the trial Judge ruled the statement
inadmissible and directed the jury to acquit the Respondent. The Director of
Public Prosecutions appealed against the acquittal. On appeal the Supreme
Court held that the prosecution had failed to show that the detention of the
Respondent was lawful at the time the statement was made. There was no
suggestion that the Chief Superintendent did not suspect the Respondent of
having committed a scheduled offence at the time the extension period was
granted, but such suspicion had to be expressly proved and could not be
inferred either from the signing of the formal direction or by hearsay evidence
of a verbal direction. The necessary evidence could be given only by the Chief
Superintendent in question.
12. During
the course of his submission Counsel for the accused also raised a matter which
did not arise on the case stated by the learned President of the District
Court. He queried the procedure whereby Garda Sheedy not only made a
contemporaneous entry in his own diary but also, with the permission of Mr
Forde, made an entry in regard to his information and the issuing of the
warrant in the Peace Commissioner's own diary. So far as I understand it,
Counsel was implying that Mr Forde was in some way incapable of properly
carrying out his functions through illness.
13. There
is no evidence before either the District Court or this Court which in any way
supports this implication. No such suggestion was made in the District Court
by Mr Buttimer, Solicitor for the accused. It appears that some two years
elapsed between the issue of the warrant and the hearing before the District
Court and no doubt all the circumstances were fully known to Mr Buttimer. More
importantly, this Court is confined to considering and determining the
questions put before it by the learned President of the District Court and no
other question. I therefore totally reject this part of Counsel's submission.
14. Counsel
for the Director of Public Prosecutions accepted that before issuing a search
warrant the Peace Commissioner must himself be satisfied of the grounds for
the Garda suspicions, and that the Commissioner could not act merely as a
rubber stamp. However, on the facts of the instant case, he contrasted the
detailed nature of Garda Sheedy's information with the bare statement of the
Garda suspicions in both
Byrne
v Gray
and
DPP
v Kenny.
He submitted that the information sworn by Garda Sheedy was quite
sufficiently factual and detailed to enable the Peace Commissioner to be
satisfied as to the grounds for issuing the warrant.
15. On
the question of the need for the Peace Commissioner to be present in Court,
Counsel for the DPP relied on the judgment of the Court of Criminal Appeal in
DPP
v Ian Smith
(unreported Finlay CJ 5th November 1990). In this judgment the learned Chief
Justice reinforced the ratio of
Kenny's
case stating (at page 3):
16. Mr
McDonagh on behalf of the DPP submitted that equally in the instant case there
was nothing in the point with regard to the presence in Court of the Peace
Commissioner.
17. With
regard to the
DPP
v Byrne
he submitted that the circumstances were entirely different and that there
was no evidence before the Court in that case of the material which the Chief
Superintendent had before him and which he had considered before directing the
extension of the period of custody.
18. It
was common case between Counsel (and in this, in my view, they were correct)
that if the search warrant was in fact invalid the search carried out on foot
of it was in breach of the constitutional rights of the accused, and any
evidence obtained as a result of such search was inadmissible, as was also the
inculpatory statement made by the accused when shown the articles found on the
premises - see, for example,
DPP
v Healy
[1990] ILRM 313.
19. The
search warrant in the instant case was obtained from Mr Denis Forde, the Peace
Commissioner, pursuant to Section 26(1) of the Misuse of Drugs Act 1977 as
amended. Section 26(1) of the 1977 Act as amended provides:-
20. The
information sworn in the previous case of
Byrne
v Gray
[1988] IR 31 was along very much the same lines.
21. I
am clearly bound by the decision in
DPP
v Kenny
and I accept that the Statute must be construed strictly. However I would
agree with Counsel for the DPP that the information sworn by Garda Sheedy in
the instant case is a very different matter from the informations sworn in
either
Byrne
v Gray
or
DPP
v Kenny
.
In his information Garda Sheedy spoke of having obtained information from a
usually reliable source and of his surveillance of the premises and what he saw
during the course of that surveillance. It seems to me that having this
information before him the Peace Commissioner had quite sufficient material on
which to satisfy himself that he should issue the warrant and he therefore
proceeded to do so. He was not in my opinion acting as a "rubber stamp" in
this instance.
22. With
regard to the submission that the Peace Commissioner would have to be present
in Court and give evidence of his state of mind at the time of issuing the
warrant, I would have no difficulty in following the authority of
DPP
v Ian Smith
quoted above. Provided the Peace Commissioner had sufficient material before
him (as he had in this case) to enable him to satisfy himself of the need to
issue the warrant it must be assumed that he carried out his functions properly
and was so satisfied. I would agree with Mr McDonagh that the situation in
DPP
v Byrne
is a different one, particularly in view of the fact that in that case there
was no evidence of the material which the Chief Superintendent had before him
at the time of making the decision.
23. The
answer therefore to the questions posed by the learned President of the
District Court are as follows:-