Irish Court of Criminal Appeal

4

THE COURT OF CRIMINAL APPEAL

DENHAM J.
HERBERT J.
GILLIGAN J.


THE PEOPLE AT THE SUIT OF
THE DIRECTOR OF PUBLIC PROSECUTIONS

And

DAVID McGOLDRICK

Judgment of the Court delivered on 24th day of June, 2005 by Denham J.

1. This is an application for leave to appeal against conviction by David McGoldrick, the applicant.

2. The applicant was tried by the Dublin Circuit (Criminal) Court for offences of infringing copyright on four counts as follows:
Count 1. Statement of Offence
Infringement of copyright contrary to section 140 (1) of the Copyright and Related Rights Act, 2000.
Particulars of Offence
David McGoldrick, on the 9th day of August 2002 at 48a Dunmore Lawns, Kingswood, Tallaght in the County of the City of Dublin did unlawfully have in his possession for the purposes of trade 5 video cassette recordings of the motion picture “Spiderman” without the consent of the copyright owner thereof, namely Columbia Pictures Industries, Incorporate, and at the time of such possession knew that such recordings were infringing copies of the said work.
Count 2. Statement of Offence
Infringement of copyright contrary to section 140(1) of the Copyright and Related Rights Act, 2000.

Particulars of Offence
David McGoldrick, on the 9th day of August 2002 at 48a Dunmore Lawn, Kingswood, Tallaght in the County of the City of Dublin did unlawfully have in his possession for the purposes of trade 10 video cassette recordings of the motion picture “Scooby Doo” without the consent of the copyright owner thereof, namely Time Warner Entertainment Incorporated, and at the time of such possession knew that such recordings were infringing copies of the said work.

Count 3. Statement of Offence
Infringement of copyright contrary to section 140(1) of the Copyright and Related Rights Act 2000.

Particulars of Offence
David McGoldrick, on the 9th day of August 2002 at 48a Dunmore Lawn, Kingswood, Tallaght in the County of the City of Dublin did unlawfully have in his possession for the purposes of trade 5 video cassette recordings of the motion picture “Gold Member – Austin Powers” without the consent of the copyright owner thereof, namely New Lines Production Incorporated, and at the time of such possession knew that such recordings were infringing copies of the said work.

Count 4. Statement of Offence
Infringement of the copyright contrary to section 140(1) of the Copyright and related Rights Act, 2000.

Particulars of Offence
David McGoldrick, on the 9th day of August 2002 at 48a Dunmore Lawn, Kingswood, Tallaght in the County of the City of Dublin did unlawfully have in his possession for the purpose of trade 10 video cassette recordings of the motion picture “Stuart Little Two” without the consent of the copyright owner thereof, namely Columbia Pictures Industries Incorporate, and at the time of such possession knew that such recordings were infringing copies of the said work.


3. Thus in essence it was alleged that the applicant had unlawfully at his home possession for the purposes of trade thirty video cassette recordings without the consent of the various copyright holders, and at the time of the possession he knew that the recordings were infringing copies of the relevant works. The video cassettes consisted of five recordings of the motion picture ‘Spiderman’ (Count No. 1), five recordings of the motion picture ‘Gold Member – Austin Powers’ (Count No. 2), ten recordings of the motion picture ‘Scooby Doo’ (Count No. 3), and ten recordings of the motion picture ‘Stuart Little Two’ (Count No. 4). The applicant was convicted unanimously by the jury on the four counts of offences contrary to s.140 of the Copyright and Related Rights Act, 2000 and sentenced to four concurrent periods of eighteen months imprisonment suspended upon entering a bond to keep the peace and be of good behaviour for a period of three years.

4. The offence is set out in the Copyright and Related Rights Act, 2000, hereinafter referred to as ‘the Act of 2000’. Section 140(1) of the Act of 2000 provides:
“140.—(1) A person who, without the consent of the copyright owner— (a) makes for sale, rental or loan, (b) sells, rents or lends, or offers or exposes for sale, rental or loan, (c) imports into the State, otherwise than for his or her private and domestic use, (d) in the course of a business, trade or profession, has in his or her possession, custody or control, or makes available to the public, or (e) otherwise than in the course of a business, trade or profession, makes available to the public to such an extent as to prejudice the interests of the owner of the copyright, a copy of a work which is, and which he or she knows or has reason to believe is, an infringing copy of the work, shall be guilty of an offence.”


5. Section 139 of the Act of 2000 makes provision for presumptions including the following:-
“139.— (1) The presumptions specified in this section shall apply in any proceedings, whether civil or criminal, for infringement of the copyright in any work.
(2) Copyright shall be presumed to subsist in a work until the contrary is proved.
(3) Except as otherwise provided in this section, where the subsistence of the copyright in a work is proved or admitted, or is presumed under subsection (2), the plaintiff shall be presumed to be the owner or, as the case may be, the exclusive licensee of the copyright, until the contrary is proved.
(4) Where-
(a) a name purporting to be that of the author of a work or of the owner or exclusive licensee of the copyright, as the case may be, appears on copies of the work, or
(b) a copy of a work bears or incorporates a statement, label or other mark indicating that a person is the author of the work or the owner or exclusive licensee of the copyright, as the case may be,
that name, statement, label or mark shall be admissible as evidence of the fact stated or indicated which shall be presumed to be correct, unless the contrary is proved.”

6. The prosecution case was grounded on the seizure by members of the Garda Síochána of video recordings in the home of the applicant. A search warrant was issued by a District Judge on 9th August, 2002. Pursuant to that warrant members of the Garda Síochána entered the dwelling of the applicant for the purposes of searching it. They seized the video recordings in issue, interviewed the applicant, and then arrested him.

7. Mr. Fagan and Mr. Pyne, employees of the Irish National Federation Against Copyright Theft Limited, testified that they examined the videos and stated that they believed them to be infringing copies. Mr. Michael Hinkson, solicitor, gave evidence that he was authorised by a power of attorney from the copyright holders to give evidence on their behalf in criminal proceedings. He gave evidence that it was his view that the copyright holders had not given consent to the applicant to possess infringing copies of their works. The learned trial judge ruled that the search warrant was valid and therefore the evidence seized was admissible. The learned trial judge also accepted the validity of the power of attorney and permitted the evidence of Mr. Hinkson.

8. The applicant applied for leave to appeal against his conviction on the following grounds:
(i) The learned judge admitted evidence prejudicial to the applicant that he should not have so admitted;
(ii) The learned judge failed to vindicate the rights of the applicant through the exclusion of evidence obtained in breach of the rights of the applicant;
(iii) The learned judge deemed admissible evidence obtained in contravention of the rights of the applicant including his Constitutional rights and the learned judge did so absent extraordinary excusing circumstances;
(iv) The learned judge failed to pay any or any sufficient attention to the principles of law in relation to the requirements for a valid search warrant and in particular those principles set out by the Supreme Court in Simple Imports Limited v Revenue Commissioners [2000] 2 I.R. 243 which case was opened to the Court.
(v) The trial judge misdirected himself in law and fell into error in deeming the search warrant valid, and he acted in excess of jurisdiction in ruling the evidence to be admissible in circumstances where the learned Judge had declared that the evidence would be inadmissible unless the search warrant was valid.
(vi) The learned judge failed to have due regard to the fact that the jurisdiction of the District Judge to issue the warrant was not stated in the warrant and/or that the District Judge could not and/or did not have before him sufficient information to justify the issue of a warrant in accordance with the conditions and requirements of the Copyright and Related Rights Act, 2000 and/or section 143 thereof.
(vii) The learned judge failed to have due regard to the fact that the search warrant relied upon for the search the premises of the applicant on 9th August 2003 carried on its face a statement that it had been issued on a basis other than one authorised by statute, and in particular, that the said warrant failed to reflect that the District judge was satisfied that an offence under the Copyright and Related Rights Act, 2000 was being committed on the premises of the applicant herein;
(viii) The learned judge failed to have due regard for or any or sufficient concern to ensure that the requirements and conditions imposed by the legislature before the powers of search could be validly exercised were strictly met;
(ix) The learned judge erred in law in determining that the District Judge had sufficient information to conclude and/or could lawfully conclude that an offence under section 140 of the Copyright and Related Rights Act, 2000 was being committed at the home of the applicant;
(x) The learned judge failed to have regard to the nature of the warrant and the errors on the face of the record that purported, on an incorrect premise, to declare authorise the search and the nature of the alleged offence.
(xi) The search warrant relied upon by members of An Garda Síochána to search the home of the applicant on 9th day of August 2000 was bad on its face and bad in law and did not authorise the nature of the search and/or other acts conducted in purported compliance therewith;
(xii) The learned judge admitted evidence at the trial of the applicant notwithstanding the nature and form of the warrant authorising the search and the specific requirement therein that the property be brought before the Court as soon as possible and failed to adequately consider that the said warrant reflected the constituent elements of a warrant that might be issued for civil rather than criminal proceedings pursuant to the Copyright and Related Rights Act, 2000.
(xiii) The learned judge admitted evidence procured in consequence of the unlawful entry to the preemies of the applicant and/or failed to have regard to the nature of the authorisation and the form of the warrant;
(xiv) The learned judge failed to have regard to the failure of the District Judge to stipulate the time-frame within which the warrant was valid and rendered admissible evidence procured three days after the issue of the warrant in the absence of express authority to so conduct a search at that time or within that time-frame;
(xv) The learned judge erred in law in admitting evidence from a private practitioner and practising solicitor and in ruling that such evidence was not hearsay evidence on the basis that the solicitor was authorised by a power of attorney to so testify;
(xvi) The learned judge erred in law in holding that he power of attorney relied upon in the case of the applicant complied with the requirement of Irish law and the said power of attorney was a valid power of attorney permitting an Irish solicitor to give evidence in criminal proceedings before an Irish court on behalf of an American company.
(xvii) The learned judge erred in law in determining that reliance by the said Irish solicitor upon data sent to him from the United States was not hearsay evidence.
(xviii) The learned judge erred in law in admitting such evidence from the solicitor without regard to the legal capacity of the company purporting to so authorise the solicitor.

9. Thus this application for leave to appeal is brought on two broad grounds: (i) the invalidity of the warrant, and (ii) the admission of hearsay evidence. The Court shall address first the matters raised in relation to the warrant.
10. In relation to the warrant, the applicant grounded his submissions on Article 40.5 of the Constitution of Ireland 1937, which provides:
“The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law”.

This express constitutional protection of the dwelling house of a citizen has been considered by the courts in many cases over the decades. For example, in Simple Imports Ltd. v Revenue Commissioners [2000] 2 I.R. 243 Keane J., with whom Barrington J. agreed, stated at p.250:-
“Search warrants, such as those issued in the present case, entitle police and other officers to enter the dwelling house or other property of a citizen, carry out searches and … in the course of so doing, use such force as is necessary to gain admission and carry out the search and seizure authorised by the warrant. These are powers which the police and other authorities must enjoy in defined circumstances for the protection of society, but since they authorise the forcible invasion of a person’s property, the courts must always be concerned to ensure that the conditions imposed by the legislature before such powers can be validly exercised are strictly met.”

Consequently it is necessary to consider the provisions of the relevant legislation were strictly met. The applicant has challenged the legality of the search warrant on a number of grounds. The Court will consider them in turn.

11. The applicant submitted that the warrant was bad in form, and so it is necessary to consider the form of the warrant, and the information upon which it was based.

11.1 The information for the purpose of obtaining a warrant is set out on a printed form headed “An Chuirt Duiche District Court Area of Dublin Metropolitan Area”, stated to be “Information for Search and Seizure Warrant in relation to Infringing Goods Material or Articles” and referring to the Copyright and Related Rights Act 2000, Section 143. It is a printed form on to which the name of the Sergeant and the address of the premises in issue have been written. It states:
“The information of Sergeant Thomas McManus of An Garda Síochána, stationed at Tallaght Garda Station, who says on oath:

I am a member of An Garda Síochána holding the rank of Sergeant and I have reasonable grounds for suspecting that infringing goods, material or articles are to found on the premises at:
48A Dunmore Lawns, Kingswood, Tallaght, Dublin 24.
Contrary to Section 143 of the Copyright and Related Rights Act, 2000”.

The form then set out the words:
“The grounds for so suspecting are as follows-”
Handwritten on the form are the words:
“Confidential information received from a reliable source and enquiries carried out.”

The form continues:
“and I hereby apply for a search warrant in relation to the premise at 48A Dunmore Lawns, Kingswood, Tallaght, Dublin 24, pursuant to the provisions of Section 140(1) of the Copyright and Related Rights Act, 2000.”

It was signed by the Sergeant. The form then contains the following statement:-
“I am satisfied the grounds set out above are reasonable”

and it is signed by a Judge of the District Court.

12. Section 143 of the Act of 2000 authorises:
“(1) where a judge of the District Court is satisfied by information on oath that there are reasonable grounds for suspecting-

(a) that an offence under section 140 has been, or is about to be, committed in, on or at any premises or place, and
(b) that evidence that such an offence has been or is about to be, committed is in, on or at those premises or that place,
the court may issue a warrant authorising a member of the Garda Síochána, accompanied by such other members of the Garda Síochána or other person or persons as that member thinks proper, at any time or times within 28 days from the date of the issue of the warrant on production, where requested, of that warrant, to enter and search the premises or place specified in the warrant using reasonable force where necessary, and to do all or any of the following acts:
(i) to seize any copies of any works, articles or devices in respect of which he or she has reasonable grounds fro suspecting that an offence under section 140 has been or is about to be committed:
(ii) to make an inventory or prepare other evidence of infringement of copyright or potential infringement of copyright;
(iii) to seize anything found there which he or she believes on reasonable grounds may be required to be used in evidence in any proceedings brought in respect of an offence under this Act:
(iv) to require any person found there to give his or her name and address
…”

It is clear therefore that the various references on the printed form to the Act of 2000 are incorrect.
(a) The suspected offences are under s.140 of the Act of 2000. The form incorrectly refers to the wrong section:- it states,
“Contrary to section 143 of the Copyright and Related Rights Act, 2000”.

Section 143 relates only to search warrants and does not establish the offence alleged or any offence. Thus on its face the printed form delivers incorrect information.
(b) Subsequently, at the core of the printed form, it is stated:
“I hereby apply for a search warrant in relation to the premises … pursuant to section 140 (1) of the Copyright and Related Rights Act, 2000.”
This is also as incorrect reference. Section 140 sets out offences and does not provide for search warrants.
13. The search warrant is also a printed form on which names and address have been written. It provides:
An Chuirt Duiche
District Court Area of Dublin Metropolitan Area
Copyright and Related Rights Act, 2000
Section 143
Search and Seizure Warrant
In Relation To Infringing Goods, Material or Articles
“Whereas I, a Judge of the District Court am satisfied on hearing evidence on oath given by Sergeant McManus of Tallaght Garda Station
That there is reasonable ground for suspecting that infringing goods, material or articles are to be found on the premises at 48A Dunmore Lawns, Kingswood, Tallaght, Dublin 24,
Contrary to section 143 of the Copyright and Related Rights Act, 2000.
This warrant is issued to authorise you, Sergeant Thomas McManus, a member of An Garda Síochána, accompanied by such other members of An Garda Síochána or other person or persons as may be necessary:

To enter and search the premises at:

48A Dunmore Lawns, Kingswood, Tallaght, Dublin 24
if need be by force and to seize any such goods, material or articles and bring them before the Court.”

It is dated and signed by a judge of the District Court for the District in which the goods, materials or articles are for the time being or, as the case may be, where the premises concerned are situated. It is addressed to Sergeant Thomas McManus of Tallaght Garda Station.
The Court notes that:
(a) The form makes incorrect reference to s.143 in the body of the search warrant.
(b) There is no reference to the offence in issue, no reference to s. 140 of the Act of 2000.
14. The Act of 2000 requires that the District Judge have reasonable grounds for suspecting that an offence contrary to s.140 has been, or is about to be, committed in, on or at a premises.

Reference has already been made to the information furnished to the District Judge and to the signed statement of that judge as to its reasonableness. In addition Sergeant McManus stated in evidence in the course of the trial before the Dublin Circuit (Criminal) Court:
“The Judge asked me certain questions in relation to the application and granted the warrant.”
[Transcript Book 2, P.24, Q.2]

Further, referring to the proceedings before the District Judge, the sergeant stated in evidence:
“He asked one question in relation to the application which I answered and then granted the warrant authorising the search of 48A Dunmore Lawns.”
[Transcript Book …]

The cross examination of Sergeant McManus contains the following exchanges:-

“35 Q. Now, I think you say you went to the
Judge on 6th August, 2002?
A. That’s correct my Lord, yes.
36. Q. And he asked you some questions?
A. That’s correct my Lord.

37. Q. What questions did he ask you?
A. I can’t remember exactly the questions he asked, my Lord, but I remember him asking me was I satisfied with the information that the evidence was available at that address, and I indicated that I was. He would have asked me a number of questions in relation to it. He asked me was it my signature.

38. Q. So when you went to him with the information you recall him asking you was it your signature on the information but you cannot recall any other questions he may have asked you?
A. I can recall him asking was I satisfied with the information … with the details contained in the information.

39. Q. Okay. And you told him that you were satisfied?
A. Yes, my Lord.

40. Q. On that basis he issued a warrant?
A. He asked a number of questions but I can’t recall exactly what questions my Lord.

Q. Okay. Did you reveal the source of your information to him?
A. No, my Lord.


15. While the State conceded that, strictly speaking, the warrant should more correctly have stated that the judge had reasonable grounds for suspecting that an offence contrary to s.140 of the Act of 2000 was being committed, it was submitted that the operative portion of the warrant is the statement by the District Judge that he is satisfied on hearing evidence on oath given by Sergeant McManus that there is reasonable ground for suspecting that infringing goods, material or articles are to be found at the applicant’s address. It was submitted that the subsequent incorrect citation of s.143 in the warrant, rather than s.140 (1), which it was conceded was the correct section, is a minor defect. It was submitted further that the judge acted within his jurisdiction and that the warrant makes sense in its own terms irrespective of the incorrect references.

16. This aspect of the application to this Court by the applicant turns on the sufficiency of the information and the warrant. The Court finds that:
(a) There were important errors on the information and on the search warrant.
(b) Incorrect references were made to incorrect sections of the relevant legislation.
(c) It was not a situation where there was a single error in referring to the Copyright and Related Rights Act, 2000, there were several errors.
(d) The errors were not merely hand written additions or amendments to the form, they were not ‘clerical’ errors, but rather were part of the printed general form.
(e) The documents were not clear.
(f) There was further ambiguity in the heading ‘Search and Seizure Warrant in relation to Infringing Goods, Materials or Articles.” This is reflective more of s.132 of the Act of 2000 than an offence under s.140.
(g) In relation to these documents the provisions set out by the legislature were not “strictly met”.
The Court is satisfied that these are not to be described as mere technical errors unlikely to mislead anyone affected by the warrant; the warrant on its face does not accurately state the basis on which it was purportedly issued.

17. On the facts of the case the Court is satisfied that the information and warrant contained errors in the printed forms such as to render them misleading, unclear and ambiguous. The test is not whether the information and the warrant made sense “on their own terms”, but rather whether the provisions of the Act of 2000 as enacted by the legislature were “strictly met”: were observed as required by Article 50.5 of the Constitution. In this case the information and the warrant did not strictly meet the provisions of the Constitution. In all the circumstances of the case the Court would allow the application on this ground.

Consequently it is unnecessary to consider the other grounds of the application. Therefore, treating the application for leave to appeal as the hearing of the appeal, the Court would allow the appeal.