Judgment Title: DPP -v- Jason Kavanagh, Mark Farrelly & Christopher Corcoran
Neutral Citation:  IECCA 65
Court of Criminal Appeal Record Number: 301, 308/09 & 6/10
Date of Delivery: 24/05/2012
Court: Court of Criminal Appeal
Composition of Court: Denham C.J., Moriarty J., Hogan J.
Judgment by: Denham C.J.
Status of Judgment: Approved
Outcome: Allow Appeals Retrials Directed
THE COURT OF CRIMINAL APPEAL
CCA Nos. 301, 308/09, 6/10
The People (Director of Public Prosecutions)
The People (Director of Public Prosecutions)
The People (Director of Public Prosecutions)
Judgment of the Court delivered on the 24th day of May, 2012, by Denham C.J.
1. Jason Kavanagh, Mark Farrelly and Christopher Corcoran, the applicants before the Court of Criminal Appeal in these appeals, referred to collectively as “the applicants”, were accused jointly, with David Byrne and Niall Byrne, of:-
(ii) Having falsely imprisoned Marie Richardson on the 13th and 14th days of March, 2005 at 28 Ashcroft, Raheny, Dublin 5, in the County of the City of Dublin, contrary to section 15 of the Non Fatal Offences Against the Person Act, 1997.
(iii) Having falsely imprisoned Ian Richardson on the 13th and 14th days of March, 2005 at 28 Ashcroft, Raheny, Dublin 5 in the County of the City of Dublin, contrary to section 15 of the Non Fatal Offences Against the Person Act, 1997.
(iv) Having falsely imprisoned Kevin Richardson on the 13th and 14th days of March, 2005 at 28 Ashcroft, Raheny, Dublin 5, in the County of the City of Dublin, contrary to section 15 of the Non Fatal Offences Against the Person Act, 1997.
(v) Having robbed Paul Richardson and Securicor Security Services Ireland Limited of €2,280,000 on the 14th day of March, 2005, in the County of the City of Dublin contrary to section 14 of the Criminal Justice (Theft and Fraud Offences) Act, 2001.
(ii) If it does apply, what are the consequences?
4. The events giving rise to these proceedings were as follows. On the 13th and 14th March, 2005, a number of men forced entry into the Richardson family home. They falsely imprisoned the Richardson family with the intent of forcing Paul Richardson, under threat of harm to his family, to undertake certain acts in his capacity as an employee of Securicor Security Services Ireland Ltd., so as to facilitate a robbery. Paul Richardson’s wife and two sons were taken to Cloon Wood, County Wicklow, where they were kept for a period overnight while Paul Richardson was kept at the family home. On the morning of the 14th March, 2005, Paul Richardson went to work and, under duress and in accordance with instructions, enabled a drop-off of €2.28 million in cash at the car park of the Angler’s Rest Pub, County Dublin. Marie, Kevin and Ian Richardson were left tied up in Cloon Wood. However they managed to release themselves, and obtained assistance.
5. On the 30th July, 2009, the applicants were convicted on all counts by a jury of eleven (one member having been discharged by reason of a family bereavement). The jury failed to reach a verdict in relation to the other accused; David Byrne and Niall Byrne.
6. On the 12th November, 2009, Jason Kavanagh was sentenced to 25 years imprisonment, concurrently on each count, which was backdated to the 1st November, 2008; Mark Farrelly was sentenced to twenty five years imprisonment, concurrently on each count, from the 30th July, 2009, and Christopher Corcoran was sentenced concurrently on each count, to twelve years imprisonment from the 30th July, 2009.
7. Each of the applicants has appealed his conviction and sentence. Jason Kavanagh’s Notice of Appeal was filed on the 2nd December, 2009; Mark Farrelly’s Notice of Appeal was filed on the 11th December, 2009; and Christopher Corcoran’s appeal was filed on the 8th January, 2010.
12. On Day 14 of the trial (18th May, 2008), the learned trial judge ruled on the issue as to whether the prosecution had fulfilled the legal requirements and had laid a foundation for the subsequent admission of evidence.
13. The home of each of the appellants was searched pursuant to a warrant issued by Superintendent Conneely. The evidence in relation to the warrants, which had been issued under s. 29 of the Act of 1939, was given by Superintendent Conneely on Day 14 of the trial (18th May, 2008). It is clear from that evidence that:-
(ii) Superintendent Conneely issued the warrant pursuant to s. 29 of the Act of 1939 to search Jason Kavanagh’s home at 27, Parlickstown Court, Mulhuddart, Dublin 15; as he did for the home of the other applicants;
(iii) Jason Kavanagh was arrested;
(iv) After Jason Kavanagh’s arrest, Superintendent Conneely authorised the taking of bodily samples from Jason Kavanagh during his period of detention at Santry Garda Station.
14. Superintendent Conneely gave evidence, on the 18th May, 2009, that from his investigations it was his belief that there was evidence in relation to the unlawful possession of firearms and other matters at 27, Parlickstown Court, Mulhuddart, Dublin 15, and that on the 26th April, 2005, he issued a warrant under s. 29 of the Act of 1939 for that address to Declan Smith, Detective Sergeant, An Garda Síochána, to enter within a week the said premises, if necessary by force, to search the premises and any person found there, and to seize anything found on such person which any member had reason for believing to be evidence of or relating to the commission of an offence under the Act of 1939, as amended, for an offence which was a scheduled offence. Superintendent Conneely was aware that Jason Kavanagh resided at that address.
15. Superintendent Conneely gave evidence that on the 27th April, 2005, Jason Kavanagh was arrested at 27, Parlickstown Court, Mulhuddart, Dublin 15, for an offence under s. 30 of the Act of 1939, on suspicion of being in the unlawful possession of firearms at the home of Mr. Richardson on the 13th/14th March, 2005.
16. Superintendent Conneely gave evidence that on the 27th April, 2005, he was on duty at Santry Garda Station. He was informed by Detective Sergeant Smith of Jason Kavanagh’s arrest, and he authorised him to take photographs, fingerprints and bodily samples under the Criminal Justice (Forensic Evidence) Act, 1990, from Jason Kavanagh. He authorised the taking of blood, hair and samples of saliva.
17. Superintendent Conneely gave evidence that he issued in excess of 60 warrants in relation to these crimes over two days.
18. Superintendent Conneely gave evidence that on the 26th April, 2005, he issued a warrant under s. 29 of the Act of 1939 to Seán Hogan, Detective Sergeant, An Garda Síochána, to search 23, Moatview Court, Priorswood, Dublin 17, the home of Mark Farrelly, whom Superintendent Conneely was satisfied was involved in the offences before the Court.
19. Superintendent Conneely gave evidence that on the 27th April, 2005, Mark Farrelly was arrested at 23, Moatview Court, under s. 30 of the Offences Against the State Act, 1939, on suspicion of being in unlawful possession of firearms on the 13th/14th March, 2005, at 28 Ashcroft, Raheny, and was detained at Blanchardstown Garda Station.
20. Superintendent Conneely gave evidence authorising the taking of fingerprints, photographs, and a bodily sample from Mark Farrelly.
21. Superintendent Conneely gave evidence that on the 26th April, 2005, he prepared a number of s. 29 Act of 1939 warrants, included was a warrant given to Sergeant Michael Mulligan, An Garda Síochána, to search 94 Bayside Boulevard North, Bayside, Sutton, Dublin 13, the home of Christopher Corcoran, where he was satisfied there was evidence in relation to the investigation, being in unlawful possession of firearms.
22. Superintendent Conneely gave evidence that on the 27th April, 2005, Sergeant Mulligan arrested Christopher Corcoran under s. 30 of the Act of 1939 on suspicion of being in possession of firearms at 28 Ashcroft, Raheny, on the 13th/14th March, 2005, and he was detained at Store Street Garda Station. Superintendent Conneely authorised Sergeant Mulligan to photograph, fingerprint and take bodily swabs from Christopher Corcoran, under the Criminal Justice (Forensic Evidence) Act, 1990.
23. On the evening of the 28th April, 2005, Christopher Corcoran was brought to the District Court, Chancery Street, where Superintendent Conneely applied for an extension of his detention under s. 30(4) of the Act of 1939, and the District Court ordered that the detention be extended for a further 24 hours.
24. Superintendent Conneely gave evidence that on the 16th December, 2005, he attended at the Dublin Metropolitan District Court and sought and obtained a warrant pursuant to s. 30A(1) of the Act of 1939 for the arrest of Mark Farrelly, who had previously been arrested under s. 30 of the Act of 1939 and released without charge, but that in the meantime new evidence, DNA evidence, had been obtained.
Submissions on behalf of Jason Kavanagh
26. It was submitted that Jason Kavanagh is entitled to rely on the finding of the unconstitutionality of s. 29 of the Act of 1939 made in the Damache case.
27. It was submitted that Jason Kavanagh’s case had not reached finality, as his appeal is live before this Court and that thus the Damache principle may be applied.
28. It was pointed out that the search warrant under s. 29 of the Act of 1939 was challenged at the trial. This included a submission that the reliance by An Garda Síochána on s. 29 of the Act of 1939 was a colourable device and that a judicially issued warrant, which carried with it the safeguards of a judicial enquiry into the propriety of a warrant, should have been employed, which submission at the trial was specifically adopted by counsel for Jason Kavanagh.
Constitutionality of an Act
30. Counsel replied by stating:-
32. Thus, it was submitted, Jason Kavanagh has not acquiesced in the use of s. 29 of the Act of 1939.
33. It was submitted that Jason Kavanagh should be entitled to rely on the decision in Damache so as to assert that his home was searched otherwise than in accordance with law and in breach of his constitutionally protected right to the inviolability of his dwelling, for, where there is a finding that a post 1937 statute is unconstitutional, that section is deemed invalid from the date of its enactment.
34. On that basis, it was submitted, Jason Kavanagh’s home was searched on foot of an unlawful warrant and so amounted to a breach of his constitutional rights, and, thus all evidence flowing from that search should have been excluded from the trial: The People (DPP v. Kenny)  2 I.R. 110,  ILRM 56; The People (DPP v. Laide)  IECCA 24,  1 I.R. 209. Also, he was not in lawful detention, it was submitted, when bodily samples were taken from him, and these samples should not have been admitted at the trial.
35. It was submitted that the fact that Jason Kavanagh did not challenge the constitutionality of s. 29 of the Act of 1939 prior to his trial in separate legal proceedings is not a bar to him doing so now.
36. Further, it was submitted that had Jason Kavanagh sought to challenge s. 29 of the Act of 1939 prior to his trial, the DPP would have objected to the proceedings on the basis that they were premature and that the facts of the case had not been established. Counsel submitted that he was not estopped from raising the point at this stage.
37. It was submitted that Jason Kavanagh’s case had not reached finality, and that he is entitled to rely on the third party right that was vindicated in Damache, i.e. the unconstitutionality of s. 29 of the Act of 1939.
38. It was submitted that Jason Kavanagh’s appeal on this preliminary issue should be allowed and a re-trial ordered.
Submissions on behalf of the DPP
41. It was submitted that the arguments were summarised in the ruling of the learned trial judge on the issue [Transcript Day 16 pages 1 – 9]. The learned trial judge, it was submitted, relied on the fact that no suggestion had been made that the provisions of s. 29(1) of the Act of 1939 had not been available to the investigating gárdaí. Rather that the argument had been that other powers should have been invoked instead. The learned trial judge analysed the Superintendent’s evidence with a view to ascertaining whether evidence had been given of the requisite state of mind and he concluded that the evidence was such that there were reasonable grounds to issue the warrants in question and that the statutory precondition for the issue of the warrants had been met.
42. It was accepted by the DPP that: (a) there was no question of urgency in the issuing of the search warrants; (b) that the issue of the search warrants was not independent of the investigation; and (c) the premises searched were dwellings.
43. It was submitted that the declaration of invalidity of a statute only applies to the party in litigation and prospectively and will only apply retrospectively in wholly exceptional circumstances.
44. It was submitted that the fact of an extant appeal is insufficient ground to enable the applicants to rely on a windfall from the Damache decision; that each applicant had chosen not to challenge the constitutionality of s. 29 of the Act of 1939 prior to the trial.
45. It was submitted that appealing to the Court of Criminal Appeal against the manner in which the trial was conducted is an inappropriate way for the applicants to advance Damache type arguments. That the correct way to challenge the validity of the search warrants was by way of judicial review, seeking certiorari of the convictions, or by way of a plenary hearing seeking a declaration.
46. It was submitted that any appeal to the Court of Criminal Appeal must be in respect of the trial and in relation to arguments and points of law raised therein: The People (DPP) v. Cronin (No. 2)  IESC 9,  4 IR 329. Further, that the applicants have acquiesced in the use of s. 29 of the Act of 1939.
47. Also, it was submitted, that the lack of appellate jurisdiction to deal with the points now raised meant that on that point the proceedings are concluded and finality reached.
48. It was submitted that the function of the Court of Criminal Appeal is not to facilitate a complete rehearing of the case. Rather, it involves targeted criticism of the conduct of the criminal trial in relation to arguments and points raised. In this case it was submitted that the applicants are seeking to go beyond a submission that the trial judge made an error in law; they are seeking to take advantage of a shift in the law to enable an argument to be raised that was not raised at the trial.
49. It was submitted that the approach by the applicants was a misuse of the function of the Court of Criminal Appeal.
50. It was submitted that the applicants should not be entitled to rely on the decision in Damache v. DPP  IESC 11 during the appeal. The applicants did not choose to challenge the legislation prior to their trial, knowing that the trial would not be a forum to challenge the constitutionality of the legislation.
51. There was a joint trial of the applicants and two other accused. To assist in the running of the long trial, counsel adopted submissions and legal arguments made by other counsel for the other accused. Thus, the raising of an issue by one counsel was adopted by other counsel. There was more than one specific reference to the constitutional validity of s. 29 of the Act of 1939 by counsel. In all the circumstances the Court is satisfied that a decision in relation to the warrants issued pursuant to s. 29 of the Act of 1939 should apply to all the applicants.
Constitutionality of s. 29 of the Act of 1939
I simply say that the investigating officer is effectively a Judge in his own cause and that it offends against two principles, guarantee of the inviolability of the dwelling under Article 40.5 of the Constitution and Article 8 of the European Convention on Human Rights and it also offends against the guarantee of a fair trial enshrined in Article 38 of the Constitution and that in issuing the warrant he was acting as a Judge in his own cause as head of the investigation. I say it is a breach of fair procedures because there is no impartial or independent assessment of the need for the warrant in the first place and I simply put that on the record.”
[Transcript, Day 14, p. 86].
Does the decision in Damache apply to these applicants?
55. The finality of a trial is at its conclusion. The question then arises as to when the trial is concluded. After a trial an accused has a right of appeal. However, the only issues that may be raised on appeal are those raised and decided upon at the trial. Thus, the issues to be determined on an appeal are dependent on what transpired in the trial court.
58. Some decisions by an accused during a trial have an important consequence for an appeal. For example, if an accused enters a plea of guilty at a trial that is a relevant factor. Such a plea is a choice by an accused. Once the plea is made and the conviction order follows, that is the foundation of fact for any consideration on any appeal.
59. Similarly, once a strategy has been decided upon by an accused at a court of trial, the matter cannot be negated and another approach taken on an appeal. As Geoghegan J. stated in The People (Director of Public Prosecutions) v. Cronin (No. 2)  IESC 9,  4 IR 329 at p.339:
61. The issuing of the s. 29 warrants was not a rare occurrence. Superintendent Conneely gave evidence that he issued 64 such warrants over 2 days of investigations into these crimes. However, the only warrants in issue are the three which Superintendent Conneely issued in relation to the homes of the three applicants in this case.
62. Relevant factors in this case include the following:-
(ii) The matter of the constitutionality of the warrants issued under s. 29 of the Act of 1939 was raised for the record during the trial. In the circumstances the Court determines that the issue was raised on behalf of each of the applicants.
(iii) The issue was raised in the Notices of Appeal.
(iv) The Notice of Appeal of each of the applicants was filed, but awaiting a hearing, when the decision in Damache v. DPP & Ors  IESC 11, was made. Consequently, the Court is satisfied that the applicants’ cases had not reached finality.
(v) In contrast to the position in cases such as Byrne and A., none of the applicants had taken any steps which suggested that they had accepted, or waived objection to, or otherwise acquiesced in the validity of the section or the warrants issued thereunder.
What are the consequences?
65. In general, a finding of the invalidity of a statute is applied prospectively, and to cases in which the issue was raised but in which finality had not yet been reached. Finality not having been reached in the applicants’ cases, and the issue having been raised at the trial, the consequence is that the circumstances of the case may be considered to determine if the law as stated in Damache is applicable.
66. The facts in these cases are on all fours with those in Damache. In all cases it was the investigating Superintendent of the Garda Síochána who issued the warrants; in all cases the warrants were addressed to search the dwelling of the applicants; and in all cases there was no degree of urgency. Thus, these appeals fall within the boundaries of Damache itself.
The Decision in Cunningham
68. This Court accordingly rejected the argument that the Damache point could not be raised on appeal. The critical point which the Court of Criminal Appeal stressed was that as the criminal proceedings against the accused had not proceeded to finality and as the accused had taken no steps which suggested that he had acquiesced in or otherwise accepted the validity of the warrant, he was entitled to rely on Damache.
69. The judgment of the Court of Criminal Appeal in Cunningham was delivered by Hardiman J. who further explained how the judgment in Damache had illustrated the inherent constitutional frailty of s. 29. If, for example, the Oireachtas could validly authorise the search of a private dwelling merely because a Garda Superintendent was “satisfied” that there were “reasonable grounds” for believing that a search of a private dwelling would reveal evidence in relation to the commission or intended commission of a range of scheduled offences under the Offences Against the State Act, 1939, or the Criminal Law Act 1976, where then might the limits of that house searching power reside? After all, if the Superintendent in question was leading the investigation (as he invariably was), he presumably had already directed his subordinates to search the dwelling in question. In those circumstances, adopting the words of the Court of Criminal Appeal in Cunningham, the entire s. 29 procedure was often little more than a “convenient and decorous formality” which struck at the essence of the constitutional guarantee.
70. It is, after all, necessary to stress that Article 40.5 provides that the dwelling is “inviolable” and that any exceptions to this rule must therefore be proportionate, objectively justifiable and, in the words of Henchy J. in King v. Attorney General  I.R. 223 at 257, respect “the fundamental norms of the legal order postulated by the Constitution.” All of this means that, absent genuine urgency, a search of a private dwelling must not only be authorised by an independent person, but the objective necessity for such a search must also be capable of being independently demonstrated. This further means that the basis for the search must be appropriately documented.
71. As the Supreme Court stressed in Damache, and as this Court explained in Cunningham, none of these essential safeguards were present in section 29. Absent such safeguards, the section failed to protect and vindicate the essence of that core constitutional guarantee of the inviolability of the dwelling.
72. The Court in Cunningham further demonstrated how a finding of unconstitutionality has general erga omnes (in relation to all) effects. This means that, in general, such a finding will apply to third parties “certainly so far as current and prospective transactions are concerned”, thus rejecting the argument that a finding of unconstitutionality somehow operates purely in personam, the benefit of which is confined to the litigants in question and their privies. Nor was it necessary that the accused should have challenged the validity of the warrant in separate proceedings.
73. For all of the reasons set out in this judgment and in Cunningham, the Court considers that the applicants are entitled to invoke the principles articulated in Damache. It follows, therefore, that the convictions cannot stand.
Potential catastrophic consequences
75. Just as in Cunningham, however, arguments along these lines were not advanced. Beyond noting that such arguments could be advanced in an appropriate case, this Court accordingly refrains from offering any view on such questions, whether in relation to the present appeals or, more generally, the aftermath of Damache itself.
77. Thus the applicants are entitled to succeed on the preliminary issue. This judgment addresses no other issue. The consequence is that the appeals will be allowed and the Court will order a retrial of each of the applicants.