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Irish Court of Criminal Appeal
You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> DPP -v- Glen Geasley [2009] IECCA 22 (24 March 2009)
URL: http://www.bailii.org/ie/cases/IECCA/2009/C22.html
Cite as: [2010] 1 ILRM 317, [2009] IECCA 22
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Judgment Title: DPP -v- Glen Geasley Composition of Court: Fennelly J., Budd J., Mac Menamin J. Judgment by: Fennelly J. Status of Judgment: Approved
Outcome: Leave to appeal application dismissed | ||||||||||
THE COURT OF CRIMINAL APPEAL Record No. Court of Criminal Appeal 72/08 Fennelly J.Budd J. MacMenamin J. BETWEEN GLEN GEASLEY APPLICANT AND DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT Judgment of the Court delivered the 24th day of March 2009 by Mr Justice Fennelly 1. This is an application for leave to appeal in a case where the applicant has pleaded guilty at his trial. He says that the learned trial judge, by ruling admissible evidence of certain telephone conversations, abandoned the principle of stare decisis and denied him the protection of the law. Thus his trial lacked the fundamental attributes of a fair trial so that he was left with no option but to plead guilty. 2. The applicant was tried at Cork Circuit Criminal Court before His Honour Judge Patrick Moran and a jury on three counts of conspiracy to possess firearms or ammunition and one of an attempt to possess firearms. The Trial commenced on 12th February 2008. On the ninth day, the applicant pleaded guilty to Count 2 on the indictment which was as follows:
3. The Director accepted that plea and entered a nolle prosequi in respect of the other counts. The learned trial judge sentenced the applicant to a term of imprisonment of twelve years with five years suspended. 4. The gist of the case against the applicant was that, with others, one of them a co-accused, he conspired to obtain a large cache of weapons and ammunition for the unlawful purposes of a group of people engaged in organised crime in Limerick. 5. Virtually all of the evidence resulted from an under-cover operation organised by An Garda Síochána in cooperation with an English law-enforcement body called the Serious Organised Crime Agency (SOCA). Two enforcement officers employed by SOCA, using the cover names, John and Raj, were the State’s central witnesses. John and Raj met the applicant at a warehouse in London on 22nd February 2007. They posed as arms dealers. They showed him photographs of weapons on a laptop and quoted prices. They each had a clean mobile phone, which was used solely for contact with the applicant. They supplied the applicant with the numbers for these mobiles. A significant part of the incriminating evidence against the applicant consisted of telephone conversations between the applicant and SOCA agents via these mobiles. 6. The applicant has put forward fifteen grounds of appeal. They can be summarised as follows: 1. Four grounds relate to the decision of the learned trial judge to admit evidence of the contents of telephone conversations with the mobile phone numbers supplied by SOCA; the complaint is that the learned trial judge refused to follow the decision of this Court in Director of Public Prosecutions v Dillon [2002] 4 I.R. 501, (hereinafter “Dillon”), holding that case to have been decided per incuriam. The learned trial judge, it is submitted, thereby abandoned the doctrine of stare decisis and accordingly the trial lacked an essential characteristic of a criminal trial in accordance with law. The applicant’s right to appeal 7. The first and principal matter to be considered is whether, notwithstanding his plea of guilty, the applicant should, exceptionally, be permitted to pursue his appeal. That question depends, in turn, on his contention that he was left with no choice but to plead guilty by reason of an incorrect and unlawful ruling admitting the evidence of the mobile-phone conversations, a ruling made in defiance of the binding decision of this Court in Dillon. 8. The applicant’s basic point is that the telephone conversations between the applicant and the SOCA agents were unlawfully intercepted for the purpose of the relevant legislation and should have been ruled inadmissible pursuant to the ruling of this Court in Dillon. The applicant had conversations with “John” and “Raj,” believing them to be arms dealers, whereas they were in fact law enforcement officers. The plea of guilty 9. The learned trial judge conducted a voir dire. He heard the evidence of “John” and submissions from counsel in the absence of the jury. He ruled that the evidence that had been obtained by means of the mobile phones, notwithstanding the decision in Dillon, was lawfully obtained. 10. On the day following that ruling, counsel for the applicant informed the court of trial that he was “under strict instructions to adopt a particular course” on the following Monday. The applicant pleaded guilty, as already stated, and the prosecution entered a nolle prosequi on the other counts. 11. The submissions on behalf of the applicant on this application explain the plea of guilty as following from the ruling of the learned trial judge that Dillon had been decided per incuriam. They continue:
A trial without the application of the doctrine of stare decisis is not a trial in accordance with the Constitution. No conviction recorded in the case of such a trial is a sound conviction regardless of whether or not the accused pleaded guilty.” 12. Counsel for both parties have referred the Court to two cases in each of which this Court entertained an appeal notwithstanding a plea of guilty: DPP v B [2002] 2 I.R. 246; DPP v Lynch (Unreported 27th July 1999). Both cases were concerned with how the advice of counsel had influenced the accused in making his decision to plead guilty. In each case this Court actually heard evidence of the circumstances surrounding the decision to plead. In the first, the appeal was allowed; in the second it was dismissed. These cases establish the principle that, in an exceptional case, a plea of guilty is not an insuperable bar to an application for leave to appeal against conviction. It was necessary in each case for the Court to hear evidence in order to enable an explanation to be given as to why the accused had pleaded guilty. That was because the advice of counsel was central to the argument. That need not be so in every case. In some cases the judge will have made a crucial ruling against the defence on a matter of law. 13. Section 32 of the Courts of Justice Act, 1924, as amended by section 3(6) of the Criminal Procedure Act, 1993 provides:
14. The Court is satisfied that this section is broad enough to encompass a right to appeal, or apply for leave to appeal, notwithstanding a guilty plea, in an appropriate case. The section has been applied pursuant to statute to the Court as it is at present constituted 15. Clearly, a convicted person, who has pleaded guilty, has no automatic right to appeal. He has openly, publicly and formally acknowledged his guilt. In many cases, such as the present, the plea will have been accepted by the prosecution in lieu of proceeding with the prosecution on other counts in an indictment. 16. The present case is quite different from the two previous decisions mentioned above. It is not suggested that the applicant’s plea of guilty was the result of any particular advice from counsel or otherwise. Rather, the plea is said to have resulted from the legal rulings of the trial judge. The applicant contends that, as a result of the ruling to admit evidence, he was left with no option but to plead guilty. 17. The 2003 edition of Archbold (paragraph 7-46b) contains the following:
18. Woolf L.J., delivering the judgment of the Court of Appeal in England in R. v Preston (1992) 95 Cr. App. R. 355 at 381said:
“In our judgment before an appellant who has pleaded guilty can rely upon an erroneous ruling of law or a material irregularity, he must show that his plea was “founded” upon the erroneous ruling of law or material irregularity.” 19. In the view of the Court, an applicant such as in the present case must show that his decision to plead guilty followed on an erroneous ruling or material irregularity of a fundamental kind, such that proceeding with the trial would have been pointless. The court should not allow tactical use to be made of the plea of guilty to obtain a new trial in more favourable circumstances. 20. In the present case, the applicant does not flinch in his submissions from alleging that the learned trial judge has committed a fundamental error of law. He claims that the learned trial judge abandoned the fundamental principle of stare decisis, and that, consequently, the applicant did not have a trial in accordance with law. 21. The question is whether the learned trial judge in fact committed such a fundamental error. The error alleged 22. The essential basis of the applicant’s objection to the admission of the evidence of contents of telephone conversations between himself and the SOCA officers was necessarily, even if not expressed in those precise terms, that the evidence was unlawfully obtained. It had been contended throughout that section 98 of the Postal and Telecommunications Services Act, 1983 (“the Act of 1983”) is capable of applying to the communications, although many of them would appear to have been made outside the jurisdiction. None of the submissions in this court address the question of whether the legislation could affect telephone communications made outside the jurisdiction and this judgment does not concern that issue. It is necessary, however, to examine both the decision in Dillon and the relevant legislation. The problem, as will be seen, is that Dillon was based on an interpretation of a statutory provision that had been effectively repealed and replaced at the time that decision was pronounced. The provision interpreted had been replaced by a quite different provision. Mr Padraig Dwyer, Senior Counsel, on behalf of the applicant, says that the statutory change could make no difference to the status of Dillon so far as the Circuit Court was concerned: the learned trial judge was bound to follow Dillon, regardless of the legislative change. Mr Dwyer went so far as to argue that the learned trial judge was not entitled to interpret or apply the amended provision as passed by the Oireachtas. 23. In Dillon, the basic facts were as follows. A Garda Inspector came into possession of a mobile phone which he had reason to believe was likely to be used for the purpose of arranging unlawful drug dealing. He answered a number of calls which were made to this phone. One of these was from a man with a Limerick accent who asked for Nicky. The Inspector said that Nicky was not available and asked who the caller was. The caller said he was Joe. The caller asked who the Inspector was and the latter said that he was Mick, which was not, of course, his real name. It was an invented name. This led to a conversation about drug dealing, incriminating to the caller. 24. Thus, the Inspector assumed a false name for the purpose of the conversation and did not, of course, identify himself as a member of the Garda Síochána. He assumed the persona of someone who was privy to a previous arrangement with “Nicky”. 25. The judgment of this Court, delivered by Hardiman J, identified the issues as being: whether the action of the Garda Inspector in listening to the conversation on the mobile phone amounted to an “interception” for the purposes of section 98 of the Postal and Telecommunications Services Act, 1983; if so, whether the interception was unlawful or constituted an unconstitutional invasion of a right to privacy; and finally the consequences of such a finding for the admissibility of the evidence. The Court went on the examine the provisions of the Act of 1983 and of the Interception of Postal Packets and Telecommunications Messages (Regulations) Act, 1993 (“the Act of 1993”). 26. The Court pointed out that section 98(1) of the Act of 1983 creates an offence. It provided (as it still provides) as follows:
( a ) intercepts or attempts to intercept, or ( b ) authorises, suffers or permits another person to intercept, or ( c ) does anything that will enable him or another person to intercept, telecommunications messages being transmitted by the company or who discloses the existence, substance or purport of any such message which has been intercepted or uses for any purpose any information obtained from any such message shall be guilty of an offence. 27. The judgment in Dillon then quoted section 98(5), as originally enacted, which provided the following definition of “interception” for the purposes of subsection (1):
28. The judgment, in quoting that provision, used the present tense, “provides,” as if that provision were still in force, which it was not. It had been amended by replacement with a different provision by section 13(3) of the Act of 1993 set out below. 29. The judgment in Dillon gives an account of the history of phonetapping in Ireland and mentions the decision in Kennedy v Ireland [1987] I.R. 587. It is not necessary to review any of that material for the purpose of this application. It also referred to provisions of the Acts of 1983 and 1993, permitting the authorisation of the interception of telephone conversations. In that case, as in this, no authorisation had been sought or granted. 30. The judgment then engaged in detailed examination of the provisions of the version of sub-section 5 which had been contained in the Act of 1983, as originally enacted. At several points, it referred to the word “agreement” in that sub-section, adding that the issue turned on that term. The judgment proceeded to an analysis of the civil law of contract in its search for an applicable definition of the term “agreement.” The court concluded that no agreement which would take the action of the Inspector in listening to the telephone conversation out of the category of “interception” had been demonstrated. This, in turn, led the court to the conclusion that the Inspector’s listening to the call in question was not mandated by law and that the prosecution had failed to establish any facts or circumstances justifying the action of listening to the telephone conversation. 31. In fact, at the time Dillon was decided, sub-section (5) no longer existed in the form in which it had been originally enacted. It had been replaced, by section 13(3) of the Interception of Postal Packets and Telecommunications Messages (Regulations) Act, 1993, which provides as follows:
(6) In this section 'intercept' means listen to, or record by any means, in the course of its transmission, a telecommunications message but does not include such listening or recording where either the person on whose behalf the message is transmitted or the person intended to receive the message has consented to the listening or recording, and cognate words shall be construed accordingly.” 32. Thus, sub-section 6 replaced sub-section 5, as originally enacted. There is no longer any need for “the agreement of the person on whose behalf that message is transmitted…” There is no interception for the purposes of section 98(1) where either the transmitter or “the person intended to receive the message has consented to the listening or recording.” It is not unlawful for a person to receive a message from another person, even where that other person does not consent to its being listened to or recorded. 33. It is not, in any event, a normal or natural use of the expression “intercept” to apply it in such circumstances. An interception occurs when a third party intervenes and takes or, in the case of a conversation, listens to something passing between two other parties. The interceptor is a third party. 34. The true burthen and entire thrust of Mr Dwyer’s argument on behalf of the applicant is not related in any way to the correct interpretation of the amending provisions of the Act of 1993. He abstained both in the court of trial and this Court from any detailed examination of its effect. His argument is based on the doctrine of stare decisis. He submits that the learned trial judge was bound to follow the decision of this court in Dillon. Counsel did not and could not dispute that section 98(5) of the Act of 1983 had been amended prior to the decision in Dillon. Nor could it be disputed that this court had interpreted that provision as if it had never been amended. He submitted, however, that the court must be regarded as having taken the amendment into account, even though it is not mentioned in the judgment. He argued that the Circuit Court was bound to follow and apply the decision of this Court, being a superior court. 35. The Court now turns to a consideration of this issue. It will deal, firstly, with the effect of the amendment of section 98(5) on the admissibility of the evidence presented by the prosecution in this case. Secondly, it will consider the argument based on stare decisis. 36. The Court is quite satisfied that the actions of “John” and “Raj” in listening to and recording the telephone conversations they had with the applicant were not contrary to section 98(1) of the Act of 1983. They did not “intercept” those conversations within the meaning of that term as it is now defined in section 98(6) of the Act as amended. They consented to the receipt and recording of the conversations. 37. It should be noted that the applicant’s first four grounds of appeal are based entirely on this argument founded on the failure of the trial judge to apply the doctrine of stare decisis: the learned trial judge was obliged to apply the Dillon ruling. There is no ground of appeal suggesting that the evidence should have been excluded on a correct interpretation of the amended provision or, for example, on any ground based on infringement of a right of privacy. 38. The central remaining question is, therefore, whether the learned trial judge was bound to apply the ruling in Dillon, in circumstances where the decision was entirely, though mistakenly based on the interpretation of a provision of a statute that was no longer in force. 39. The doctrine of precedent, known under the Latin label stare decisis, plays a central role in our law. It is the means by which the common law achieves, so far as possible, uniformity, consistency, predictability and certainty. The Court fully accepts the helpful and learned submissions of counsel for the applicant on this subject. Kingsmill Moore J in speaking for a unanimous Supreme Court in Attorney General v. Ryan’s Car Hire [1965] I.R. 642 expressed the matter succinctly:
40. The Court, in that case, was, of course, exploring the extent to which the Supreme Court itself, being a court of final resort, was bound by its own earlier decisions. In discussing this issue, the learned judge cited extensively from English authority, noting particularly a dictum of Lord Halsbury to the effect that a decision of the House of Lords is conclusive and binding. He then proceeded:
41. It must be added that the doctrine of precedent applies with particular force to the decision-making work of inferior courts: the term is not here used pejoratively, but merely to designate a court’s place in the judicial hierarchy. An inferior court is bound to follow the decisions of courts of superior status, in particular of courts which decide appeals from it. The authors of “J.M. Kelly: The Irish Constitution” (4th ed. Par 6.3.133) cite an unreported Supreme Court decision, McDonnell v Byrne Engineering Co. Ltd. (Irish Times 4th October 1987), where O’Higgins C.J. stated that the Supreme Court, as the final court of appeal:
42. The submissions of the applicant correctly state that, within the hierarchical structure of the Court system, the authority of precedent is vertical and that lower courts are bound by decisions of higher courts. That means also that lower courts are bound to follow and apply relevant decisions of higher courts, even when they disagree with them and even when such disagreement appears well founded. 43. The notion of a decision reached per incuriam is an essential part of the doctrine of stare decisis. Where a court has reached a decision without taking account of a relevant argument, an important judicial precedent or a relevant statutory provision, its decision may be disapproved in a later case, by a court of concurrent jurisdiction. Its authority, to borrow the language of Kingsmill Moore J, may be reduced “to vanishing point.” Normally, it will remain binding, however, on courts of inferior jurisdiction. 44. The present case presents an unusual, even an extreme example of a court deciding a matter without making any reference to the legal provision which was actually in force. The Dillon decision was entirely founded upon the interpretation of a statutory provision which was no longer in force. The decision turned on the absence of any evidence of an “agreement” such as would have been required to take the case out of the definition of “interception.” The statute in force, however, no longer referred to any agreement. Faced with this unusual, even unprecedented, situation, the learned trial judge decided, at the urging of counsel for the prosecution, that he was not bound by Dillon. 45. This Court is satisfied that the learned judge was correct in his ruling. Insofar as Dillon stood as a precedent, it conveyed at most a binding interpretation of section 98(5) in its original form. It was not an authority on the interpretation of the new provision introduced by the Act of 1993. In that sense, it was entirely academic, except for its effect on the application it decided. Once it was clear that the sub-section was no longer in force, Dillon ceased to be relevant. A trial judge is not only bound by decisions of this court and of the Supreme Court. The doctrine of precedent is not the sole source of law in the State. A judge is equally bound to give effect to legislation passed by the Oireachtas which is declared by the Constitution to be the sole and exclusive maker of our laws. 46. The learned trial judge was faced with a direct and explicit conflict between the decision in Dillon, which made proof of an “agreement” necessary and the provisions of sub-section (6), introduced in 1993, which not only did not require an “agreement” but made express provision that consent of one party to a telephone conversation sufficed to take the matter outside the section. The reason for the conflict was clear and obvious to the judge: the court had interpreted the earlier and not the later provision. The position in which the learned judge found himself was exactly the same as if section 98(5) had been in force in its original form but replaced in the intervening time. Here that event had occurred, but before the decision in Dillon. 47. The report of Dillon contains no account of the submissions of the parties. On page 512, the judgment refers to the submissions of counsel for the Director of Public Prosecutions as being to the effect that the actions of the Garda Inspector had not amounted to an “interception.” It then states that this point has been resolved against him on the basis that no “agreement” had been established. All this strongly suggests that the amending provision had not been drawn to the court’s attention. 48. In the opinion of this court, the learned trial judge was not only entitled but bound to apply the statutory provision and to give effect to the law as passed by the Oireachtas. 49. It follows that the application for leave to appeal should be rejected on this ground alone. 50. However, the Court would also reject the application, even in the light of the Dillon analysis, by distinguishing the facts of this case. It was clear from the facts in Dillon that the transmitter of the telephone messages which were heard by the Inspector intended them to be conveyed to another person, identified as “Nicky.” The Inspector said that Nicky was not available. He identified himself (the Inspector) as Mick. In this case, on the other hand, the applicant met both “John” and “Raj” and intended to send telephone messages to them, i.e., to those actual people. He did not know, of course, that “John” and “Raj” were law enforcement officers and not arms dealers. The judgment in Dillon speaks of the Inspector’s concealment of his identity and says: “The Inspector acted in this way to facilitate the detection of a serious crime. Apart from the provisions of the Act, this seems an intelligent and indeed a natural way for a detective to behave.” Thus, as one would expect, there is no intrinsic objection to the concealment of their identity by law enforcement agents reasonably engaged in the investigation of serious crime. A great deal of investigation of serious crime would be rendered impossible or extremely difficult, if it were otherwise. 51. Finally, it is, of course, clear and is not contested, that the Court considers that it has itself the power to depart from the precedent of Dillon. For the reasons already given, it is clear that Dillon cannot be regarded as providing a binding interpretation of section 98(5) of the Act of 1983, as amended by section 13(3) of the Act of 1993. Having done so, it must inevitably rule that the challenged evidence of the telephone conversations was admissible. Even assuming that the learned trial judge was bound by Dillon and should not have admitted the evidence, should the court, for that reason, allow the appeal and direct a retrial even though it is satisfied that the evidence was admissible in law and will be admissible at a future trial? Such a procedure would be patently absurd. It would defeat the very object of the doctrine of stare decisis, as propounded to us, namely the avoidance of intolerable uncertainty. 52. From all of the foregoing, it follows that the applicant has failed to establish the premiss upon which he seeks leave to appeal against his conviction upon his plea of guilty, namely that his trial, without the application of the doctrine of stare decisis, was not in accordance with law. On the failure of that premiss, he is not entitled to maintain his application for leave to appeal. He is not entitled, therefore, to maintain the other grounds of appeal. It might be added that the applicant was fully aware from the commencement of his trial that privilege was being claimed in respect of a large part of the investigation. The judge ruled against him on that point on the first day. His plea of guilty was not related to and is not said to be based on that ruling. 53. The Court will dismiss the application for leave to appeal. | ||||||||||