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Irish Court of Appeal
You are here: BAILII >> Databases >> Irish Court of Appeal >> Director of Public Prosecutions -v- Kearney [2015] IECA 64 (05 February 2015)
URL: http://www.bailii.org/ie/cases/IECA/2015/CA64.html
Cite as: [2015] IECA 64
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Judgment
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THE COURT OF APPEAL Birmingham J. Sheehan J. Edwards J. 345/12 The People at the Suit of the Director of Public Prosecutions
V Michael Kearney Appellant 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.
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. 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 5. Det. Sgt Calmey said that a short time later he observed the Focus, with three persons in it, leave the Unit. The Focus returned later in the afternoon at around 4.30 pm. He said he also saw an Opel Cadet van go into the Unit after this. A short time later he observed the Focus motor vehicle leaving the Unit and at about 5.55 pm he observed the white Mercedes van leaving the Unit behind the Opel Cadet van. Both these vehicles were stopped by the gardaí and the appellant was driving the white Mercedes van at the time when it was stopped. 6. Chief Superintendent Hayes gave evidence that on stopping Michael Kearney in the white van, he told him what the garda business was. Chief Superintendent Hayes identified himself to the appellant Michael Kearney. He had a short conversation with him, in the course of which the appellant gave his name and address, but said nothing further. Chief Superintendent Hayes told the court that the appellant was taken from the van, that the rear door was opened and that he saw that it contained property similar in content and make up to the property that had been stolen three weeks earlier. Ground 1 8. The respondent submitted that the evidence was both relevant and admissible and, in particular, that it contextualised the appellant’s possession. In support of the submission, the respondent drew the court’s attention to s. 18(2) of the Criminal Justice (Theft and Fraud Offences) Act 2001, which provides:-
Grounds 2 and 3 11. The appellant contended that the opening of the doors of the vehicle and looking into it amounted to an unlawful search. It was further contended that any evidence gathered in the course of such an unlawful search was inadmissible and ought to be excluded. In response, the respondent contended that what was done amounted to no more than a lawful inspection. 12. The learned trial judge, in ruling that what was done was lawful, held that an element of thoroughness was required to constitute a search. Having considered the evidence and authorities opened to him, he further stated:
14. The respondent contended that the actions of the gardaí did not amount to a search and that the learned trial judge was correct in holding that the legal elements of search required entry and greater thoroughness than was found in this case. 15. The respondent further submitted that even if Chief Superintendent Hayes was involved in a search, it was one acquiesced to by the appellant. The respondent further submitted that none of the appellant’s constitutional or legal rights were infringed. The search did not take place within the curtilage of his dwelling and he had no proprietary right in the land or premises where the van was intercepted. The respondent went on to say that in so far as any possible proprietary right to the van was concerned, it was a commercial vehicle not owned by the first appellant. The appellant had never previously driven this vehicle and was one of a number of people who drove it that day. 16. Given that Chief Superintendent Hayes had explained his business to Michael Kearney, 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 gardaí did not constitute a search. Accordingly, the court holds that the inspection of the vehicle was lawful. 17. Moreover, irrespective of whether the actions of Chief Superintendent Hayes amounted to an inspection or a search, 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. 18. It follows from this finding that the arrest also was lawful. 19. Accordingly, the court, having rejected all three grounds of appeal as being without merit, dismisses the appeal. |