Judgment Title: DPP -v- Vitoldas Jagutis
Neutral Citation:  IECCA 4
Court of Criminal Appeal Record Number: 231PX/2011
Date of Delivery: 07/03/2013
Court: Court of Criminal Appeal
Composition of Court: Clarke J., de Valera J., McGovern J.
Judgment by: Clarke J.
Status of Judgment: Approved
Outcome: Allow DPP Appeal against dismissal
THE COURT OF CRIMINAL APPEAL
[Appeal No: 231PX/11]
The People at the suit of the Director of Public Prosecutions
Judgment of the Court delivered by Mr. Justice Clarke the 7th March, 2013.
1.2 After Mr. Jagutis was returned for trial, an application was brought on his behalf under s.4E of the Criminal Procedure Act, 1967 ("the 1967 Act"), as inserted by s.9 of the Criminal Justice Act, 1999 ("the 1999 Act"), seeking an order dismissing the charges against him. Such an application might be referred to as a summary dismissal motion. As was pointed by the Supreme Court in Cruise v. Judge Frank O'Donnell and D.P.P.  3 IR 230, the main aim of s.4E was, so far as possible, to confer on a trial court a jurisdiction similar to that which had been exercised by the District Court in the context of the former procedure of preliminary examination which procedure was, of course, discontinued by virtue of the 1999 Act.
1.3 The basis for Mr. Jagutis's application was that it was said that the warrant on which the relevant premises was searched was defective such that the search in question was thus unlawful. On that basis it was argued that the court should not admit the evidence gathered on foot of the search warrant. In turn it was argued that in the absence of the evidence which it was said should be excluded there was not a sufficient case to put Mr. Jagutis on trial and that, therefore, in accordance with s.4E(4) of the 1967 Act (as amended) the Court should dismiss the charge.
1.4 The motion was heard by His Honour Judge Hogan in the Circuit Court. Judge Hogan agreed with the case made on behalf of Mr. Jagutis and, accordingly, dismissed the charges against him. From that decision the prosecutor/appellant ("the D.P.P.") has, in accordance with s.4E(7) of the 1967 Act (as amended), appealed to this Court. Against that background it is necessary to turn to the issues raised on the appeal.
2. The Appeal Issues
2.2 First, attention was drawn to the precise type of issue which arose in respect of the admissibility of the evidence obtained on foot of the search warrant in question which, it was said, involved questions of fact and questions concerning the discretion of the trial court. Such questions were not, it was said, readily amenable to being dealt with within the scope of an application under s.4E. In summary, it was argued that s.4E involves, to a very large extent, a consideration of whether the Book of Evidence discloses, in respect of any relevant charge, a sufficient case to put the accused on trial for the offence in question. It is said that questions involving the admissibility of evidence obtained on foot of a defective search warrant (except where the search warrant relates to a home) involves the Court in considering a range of factors before determining whether the evidence should be admitted and that, in so doing, the Court may be required to hear evidence relating to such matters as whether the warrant in question, even if found to be defective, was nonetheless applied for and acted upon in a bona fide manner. On that basis it was argued that the scope of the inquiry which ought properly be conducted before determining whether evidence was to be admitted went beyond a consideration of the facts likely to be disclosed on the Book of Evidence and was, thus, outside the scope of the type of inquiry which could properly be conducted within the rubric of s.4E.
2.3 Second, counsel for the D.P.P. argued that, even if, contrary to his first submission, the type of issues which could be considered in a summary dismissal application under s.4E included issues of the type raised in these proceedings, the trial judge, it was said, reached the wrong conclusion as to the exclusion of the evidence in question even on the assumption that the warrant in this case was defective. It was said that, on any view, the question of admissibility of evidence obtained on foot of an unlawful execution of a warrant (as opposed to an unconstitutional execution of same) involves, on a summary dismissal application, the Court in taking the prosecution case at its highest. On that basis it was suggested that the trial judge could not properly have concluded that the evidence ought to be excluded.
2.4 Third, and finally, it was said that the warrant was not, in any event, defective.
2.5 It follows that, if the D.P.P. is correct on the first point, an application for summary dismissal was not the proper vehicle for a determination of the issues concerning the validity of the warrant and, if it be invalid, the admissibility of the evidence obtained on foot of it. On that basis it was argued that the proper place for a determination of those matters would be the trial. It would follow, if that argument be correct, that the appeal of the D.P.P. would have to be allowed and the trial before the Circuit Court would have to continue. Given that, in those circumstances, it would be a matter for the trial judge conducting such trial to consider the issues raised in respect of the admissibility of the evidence it would, in the event that this Court was persuaded that the D.P.P.'s first point concerning the scope of inquiry on a summary dismissal motion was correct, be inappropriate for this Court to express any definitive view on the admissibility issues for those issues would, in those circumstances, be properly within the remit of the trial judge. That does not, of course, mean that this Court would be entirely debarred from making any comment on those issues at a general level but rather that the Court should not come to a definitive view on the specifics of an issue which, if the D.P.P. succeeds on the first point, this Court would in effect be deciding ought to be left to the trial judge.
2.6 On that basis it seems to the Court that it is appropriate to deal with the issue of the scope of inquiry under a summary dismissal motion first. Happily there is significant guidance to be obtained on this question from the judgment in the Supreme Court in Cruise. It is appropriate, therefore, to turn to an analysis of Cruise.
3. The Judgment in Cruise v. Judge Frank O'Donnell
(4) If it appears to the trial court that there is not a sufficient case to put the accused on trial for any charge to which the application relates, the court shall dismiss the charge.
(5) (a) Oral evidence may be given on an application under subsection (1) only if it appears to the trial court that such evidence is required in the interests of justice."
3.3 It is, as always, important to understand the way in which the case was argued before the Supreme Court for the context in which the findings of the Court must be considered is the case made on both sides which the Court was asked to determine. At para.26 of his judgment Fennelly J. noted that the application made in Cruise involved "a very much broader case that the section does not limit in any way the scope of issues that may be determined on an application pursuant to s.4E and that the Court may determine issues, not merely of law, but of fact."
3.4 In commenting on that argument, at paras.31-33 of his judgment, Fennelly J. said the following:-
32. I prefer the view of the respondents. This does not necessarily mean that the jurisdiction exercised pursuant to section 4E is identical with the former jurisdiction of the District Court to decline to send a person forward for trial. Some weight should be attached to the fact that the decision is being made by the actual trial court and to the faculty for the admission of evidence.
33. Nonetheless, it would require clear legislative wording to establish an entirely novel jurisdiction to determine, in advance of trial, disputed issues of law or fact. The appellant’s submissions would appear to open the door to determination, for example and probably most notably, of contested admissibility of incriminating statements or disputes about lawfulness of detention. It is notorious that trial courts may spend days or even weeks hearing evidence and cross-examination in the absence of the jury touching on alleged confessions made in gárda custody. Hardiman J refers to these problems in the judgment he has just delivered. The parties have referred, in oral and written submissions, to various reports and recommendations for the introduction of procedures such as “plea and directions hearings.” Such procedures have generally been introduced by statute in other common-law countries. The power to make binding preliminary rulings on admissibility would clearly require statutory intervention. What is clear, however, is that no existing legislative authority exists for such procedures in this jurisdiction."
3.6 Fennelly J. went on to note that a court hearing a summary dismissal motion should take the prosecution case at its strongest and ordinarily assume that the evidence disclosed in the Book of Evidence is admissible.
3.7 At para.40 of his judgment Fennelly J. rejected the proposition that s.4E provided for an independent free-standing procedure for the determination of preliminary issues. As he pointed out it would make no sense to provide for such a procedure only in those cases where the accused brought a summary dismissal motion but not in other cases.
3.8 However, Fennelly J. did not rule out the possibility that there might, in an appropriate case, be scope for a consideration of the validity of a warrant. The Circuit judge in the case in question had ruled that the validity of search warrants was to be determined at the trial and could not be the subject matter of an application to dismiss pursuant to s.4E. Fennelly J. expressed the view that there was a jurisdiction to dismiss where the only evidence advanced against the accused is plainly inadmissible citing the example where the only evidence was clearly hearsay. Importantly, Fennelly J. went on, in para.43, to state that:-
(b) the issues arising on the question of admissibility are, to adopt the language of Fennelly J., plain or clear, not involving the resolution of contested issues of fact and capable of being dealt with on the Book of Evidence supplemented only by explanatory oral evidence.
4. Application to this Case
4.2 However, it was the second leg of the test which led to significant disagreement between counsel. In simple terms the case made on behalf of the D.P.P. was that the relevant evidence, even if it were conceded for the purposes of argument that the warrant in question was invalid, was not plainly inadmissible and that the question of inadmissibility was not, therefore, a clear case.
4.3 For those purposes it is appropriate to assume (for the purposes of the argument), as counsel for the D.P.P. did, that the warrant was invalid. However, there was no suggestion that the premises searched were anything other than a business premises. It follows that the constitutional difficulties which arise in respect of the execution of an invalid warrant in relation to a home do not apply on the facts of this case. In those circumstances it seems clear that the Court has a discretion as to whether to admit or exclude evidence obtained on foot of the execution of the warrant in question. It is appropriate to pause to emphasise that the use of the term "discretion" in this context does not imply that the Court can do as it pleases. Indeed, as has been noted in some recent cases (see for example Shell E & P Ireland Limited v. McGrath & ors  IESC 1 at para 7.28) the term "discretion" can be apt to mislead. In truth what the law requires is that in deciding whether to admit or exclude evidence obtained on foot of the execution of a defective warrant the court is required to take into account a broad range of circumstances before determining whether, on balance, the evidence should be admitted or excluded. The role of the court is, therefore, non-automatic. It does not automatically follow from a determination that a warrant is defective that evidence obtained on foot of the execution of the warrant is either to be admitted or to be excluded.
4.4 The jurisprudence in this area goes back to the People (A.G.) v. O'Brien  I.R. 142, where Kingsmill Moore J., speaking for the majority of the Supreme Court, rejected an absolute inclusionary rule as well as an absolute exclusionary rule in respect of such illegally obtained evidence. In the course of his judgment in O'Brien, Kingsmill Moore J. said the following:-
4.7 It seems to the Court that such an inquiry is not of the type contemplated by s.4E in the way in which that section was construed by the Supreme Court in Cruise. It would involve the prosecution in, at a minimum, having to consider putting forward additional evidence beyond that contained in the Book of Evidence for the purposes of seeking to persuade the Court that the evidence was admissible. It is likely to involve cross-examination of those witnesses. Such an inquiry is far from a "clear case" or one where it would be possible to say that evidence was "plainly inadmissible" on the basis of the contents of the Book of Evidence.
4.8 In coming to that conclusion the Court has had regard to two additional submissions made on behalf of Mr. Jagutis. First, counsel drew attention to the fact that Cruise does make clear that, on a summary dismissal motion, the prosecution case must be taken at its highest and that no issue estoppel arises so that the accused would be entitled, if losing on the summary dismissal motion, to revisit the point at trial. On that basis it was argued that there would be no injustice in allowing the matter to proceed on the basis of taking the prosecution case at is highest at the summary dismissal motion but leaving the sort of detailed factual analysis to which I have just referred over for consideration to a trial. However, there is a problem with that argument. In referring to the need to take the prosecution case at its highest the Supreme Court, in Cruise, was clearly referring to the case contained in the Book of Evidence. Where, because of a challenge, it may be necessary to tender additional evidence, relevant to the exercise by the Court of its function in determining admissibility, it will, at least in many cases, be necessary for the prosecution to go beyond the case set out in the Book of Evidence and tender further evidence which might well be subject to scrutiny. It does not seem to this Court that an inquiry based on potentially detailed further evidence, beyond that contained in the Book of Evidence, is what was contemplated in s.4E in the manner in which that section was interpreted in Cruise. Without such additional evidence there would be a real risk that evidence might be excluded (and thus a prosecution dismissed) even though, on a full consideration such as might occur in the event of an objection to admissibility being made at trial, the proper conclusion would be that the evidence in question should be admitted. Such a procedure would allow the accused to, in effect, have two bites of the cherry in arguing that, in exercise of the Court's discretionary function, the evidence should not be admitted. That too does not seem to this Court to be the type of inquiry which was contemplated by s.4E.
4.9 The second argument raised by counsel for Mr. Jagutis stressed the distinction between evidence which was said to be inadmissible on a constitutional basis, on the one hand, and evidence which was said to be inadmissible on the basis of having been illegally obtained on the other. Counsel rhetorically asked whether s.4E was intended to apply in the former but not the latter case. In so doing counsel quite properly drew attention to the fact that, save in wholly exceptional circumstances, evidence obtained in breach of constitutional rights (such as by the execution of an invalid warrant at a home) must be excluded. Counsel drew attention to the fact that it seemed to follow that a prosecution case that was based solely on evidence obtained unconstitutionally in such circumstances could properly be the subject of a summary dismissal application. It may well be that counsel is correct in that regard. Why then, counsel asked, does s.4E make a distinction between unconstitutionally obtained evidence (where summary dismissal is available) and illegally obtained evidence (where it is not).
4.10 However, it does not seem to the Court that anything follows from such a conclusion. As was made clear by the Supreme Court in Cruise the nature of the inquiry mandated by s.4E applies only to cases where admissibility (or its absence) is plain or clear. Section 4E, in itself, makes no distinction, therefore, between unconstitutionally obtained evidence and illegally obtained evidence. However, the general law does make such a distinction and does so in a way which makes unconstitutionally obtained evidence clearly inadmissible (save in wholly exceptional circumstances) but mandates a broad ranging inquiry into all relevant circumstances before determining whether illegally obtained evidence is to be admitted. It is the general law which, therefore, makes a significant distinction between unconstitutionally obtained evidence and illegally obtained evidence rendering one clearly inadmissible but the other not. It is that aspect of the general law that creates a distinction between unconstitutionally obtained evidence and illegally obtained evidence for the purposes of s.4E for it places one category (being unconstitutionally obtained evidence) into the plain or clear category while the other (being illegally obtained evidence) is placed into the unclear category. Given that s.4E distinguishes between clear and unclear cases, it is an inevitable knock-on effect of that distinction and the general law to which reference has been made that there is, in practice, a difference between the availability of a summary dismissal motion to deal with charges wholly dependant on unconstitutionally obtained evidence, on the one hand, and such charges which are dependant on illegally obtained evidence on the other hand.
4.11 It follows that a summary dismissal motion under s.4E of the 1967 Act can, in an appropriate case, be a proper vehicle for a determination of whether unconstitutionally obtained evidence is plainly inadmissible such that some or all of the charges levelled against the accused in question can no longer be maintained. However, having regard to the nature of the inquiry which the Court is required to conduct in respect of illegally obtained evidence, it is unlikely that a summary dismissal motion could be the proper vehicle for the determination of the admissibility of illegally obtained evidence. In the view of this Court it was not the appropriate vehicle on the facts of this case.
4.12 The nature of what is argued to be a flaw in the warrant in this case is what is said to be a mis-description of the offences whose investigation the warrant was being applied for. Assuming that the mis-description is sufficient to render the warrant invalid the Court would be required to conduct an inquiry into matters such as how that error of mis-description occurred, the extent and state of knowledge of any parties involved about the error, and other matters of fact connected with the circumstances in which the warrant was applied for and executed. While some of the matters properly taken into account, in accordance with O'Brien, such as whether the error can be regarded as technical or trivial, could, most probably, be ascertained from the Book of Evidence (i.e. from the text of the warrant itself) nonetheless the scope of the inquiry that would properly need to be conducted in order to determine the admissibility of the fruits of the search conducted on foot of the warrant in this case would necessarily go well beyond the parameters of the proper type of inquiry identified in Cruise.
4.13 It follows that the appeal of the D.P.P. must be allowed, the order of the trial judge dismissing the charges reversed, and appropriate measures, which will be discussed with counsel, put in place to allow the trial to now proceed. Before concluding this judgment the Court would wish to make a number of observations.
5. Some additional Observations
5.2 The Court will, therefore, confine itself to a number of brief comments. The first matter to note is that it is clear that, in the event that the trial judge forms the view that the warrant is invalid, the trial judge will then be required to assess the admissibility of any evidence obtained on foot of the warrant in question in accordance with the principles laid down in O'Brien and the succeeding case law following on from that decision. It will be for the trial judge to reach an appropriate assessment, on the basis of whatever evidence is presented at the hearing, in accordance with those principles.
5.3 So far as the validity of the warrant itself is concerned that will again be a matter for the trial judge. However, in that context it is important to make reference to two recent decisions of this Court. In the People (D.P.P.) v. McCarthy  1 ILRM 430, Macken J., speaking for this Court, and having reviewed relevant case law, put forward a number of principles in relation to search warrants which included, at sub-paragraph (e), the following:-
5.6 It is important to emphasise, however, that different considerations may apply where it is suggested that a search conducted on foot of a purported warrant is illegal for reasons other than error or mis-description in the terms of the warrant itself. It is, of course, the case that a warrant which is apparently valid on its face may nonetheless be invalid because of the circumstances in which it was applied for or other factors unconnected with its text. Likewise the manner of execution of an otherwise lawful warrant may lead to illegality. So far as the summary dismissal motion in this case was concerned no such arguments were put forward. The sole challenge to the validity of the warrant was that it failed, in form, to properly describe the offence whose investigation was at the heart of the application to issue the warrant and equally at the heart of the jurisdiction to issue the warrant in the first place. It is true that a specification of the legal basis for the issuing of a warrant is a most important part of the warrant itself for it provides the legal justification for the issuance of the warrant in question. As pointed out a person who is obliged to comply with the terms of a warrant is entitled, amongst other things, to be reasonably satisfied that there was a proper legal basis for the issuing of the warrant. The question which the trial judge will have to address is as to whether any failure of fully accurate description of the offences specified in the warrant in this case is sufficient to render the warrant truly defective and, thus, render any search conducted on foot of it illegal so as to require the application of the principles identified in O'Brien in order to decide whether evidence obtained on foot of that execution should be admitted. It is by reference to the considerations which the Court has noted that it will be necessary for the trial judge to assess the validity of the warrant in this case.
6.2 The Court will discuss with counsel the appropriate measures to put in place to allow that course of action to be followed.